Request for information relating to an investigation into alleged destruction of documents held by NZDF
Request for information relating to an investigation into alleged destruction of documents held by New Zealand Defence Force—information withheld to prevent prejudice to the outcome of those inquiries—s 6(c) applied at the time the request was refused—information later released due to change in circumstances
A request was made to the Minister of Defence and the New Zealand Defence Force (NZDF) for information relating to an investigation conducted by the NZDF into the alleged destruction of documents held by Army General Staff. Included in the information at issue were letters between the Chief of Defence Force and the Chief of General Staff regarding the alleged destruction of the documents.
The letters were withheld pursuant to section 6(c) of the OIA. The Ombudsman was asked to investigate and review this decision.
The NZDF explained that, at the time the decision to withhold was made, its concern with release centred on the information’s relationship with a number of inquiries or investigations it was undertaking. These included an inquiry into the alleged shredding of documents. While each NZDF investigation was entirely separate, the NZDF said that, at the time of the request, they were considered inter-related in light of public allegations of an Army ‘public relations’ campaign to obtain additional funding at the expense of the Navy and the Air Force. The NZDF advised that it did not know what the inquiries would reveal and, as such, it did not want the release of the information at issue to prejudice the statements of potential witnesses. The NZDF was therefore of the view that releasing the information at issue, prior to the conclusion of the inquiries, would be likely to prejudice the outcome of those inquiries.
The Ombudsman was satisfied the NZDF had sufficient reason to believe that releasing the information at the time it made its original decision would be likely to undermine its ongoing inquiries, and so, in terms of section 6(c), be likely to prejudice the maintenance of the law.
However, during the course of the Ombudsman’s investigation and review, the various inquiries identified by the NZDF were concluded. As such, the Ombudsman noted that the potential harm that could have been caused by release of the information would appear to have passed. Therefore, the Ombudsman invited the NZDF to consider whether it was now of a mind to release the information at issue.
The NZDF agreed and the information was released.
Given that the Ombudsman’s jurisdiction in terms of the OIA is limited to a consideration of whether a decision to withhold information was correct at the time the decision was made, it was necessary for the Ombudsman to consider the relationship between the information and the ongoing inquiries at that time. The fact that the circumstances had since changed and the potential harm originally identified by the NZDF no longer existed was not relevant to the Ombudsman’s consideration of whether the NZDF was entitled to rely on section 6(c) to withhold the letters when it did.
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.