Request for information regarding contact between Board members and news staff
Request to Television New Zealand for information concerning contact between Board members and news/current affairs staff—reasonable effort must be made to find relevant information
A requester had sought from TVNZ information recording contact between Board members and staff regarding the content of news and current affairs programmes. The request covered a 12 month period and was intended to include discussions at Board meetings as well as other contacts.
While the request was initially refused under section 9(2)(i) of the OIA, it soon became apparent that no information of the nature sought could be located. In response to the notification of the complaint, TVNZ advised specifically that on no occasion had the Board discussed the content of any news or current affairs programme, and that there had been no contact of a similar nature between Board members and relevant staff. In effect, TVNZ was invoking sections 18(e) and (g) of the OIA.
For sections 18(e) and (g) to apply the recipient of the request must have reasonably discharged its obligations under the Act to try and find the information. Successive Ombudsmen have long held the view that a search for requested information must be thorough rather than perfunctory. This approach was reinforced by the Complaints Review Tribunal’s decision in Mitchell v Police Commissioner  NZAR 274. In commenting on section 29(2)(b) of the Privacy Act, which is similar to section 18(e) of the OIA, the Tribunal said:
… we think that it is implicit in the phrase ‘cannot be found’ that reasonable attempts have been made to find the information. If that were not the case, then an agency making no attempt to find information, or only a desultory attempt, would be justified in refusing a request, and the object of the legislation thwarted.
The Tribunal found that the search made by the Police was unsatisfactory, in that it was ‘mechanical rather than intelligent’.
In advising of steps taken to ascertain whether the information was held, TVNZ explained that a search of Board minutes had not revealed any discussions about the content of news and current affairs programmes. Moreover, a key staff member who had been regularly present at Board meetings could recall no such discussions.
With regard to the possibility of contact outside Board meetings, TVNZ consulted with its managing editor of the news and current affairs division. He reported that no approach concerning news or current affairs content had been made to him by Board members, and he had no knowledge of such contact with his staff. He thought it unlikely that staff would not have reported any approaches of that nature.
The view formed was that TVNZ had taken reasonable steps to try and find the information and that consequently it was entitled to rely on sections 18(e) and (g).
In 2015, section 18(e) was amended to make it clear that agencies must make ‘reasonable efforts to locate’ the information before refusing a request.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.