Request to Minister of State Services for information relating to the state sector wage round—information relating to industrial negotiating strategies withheld—concern that release would prejudice current and future negotiations and would be likely to prejudice the ability of the State Services Commission to obtain information from state sector agencies regarding industrial negotiations
A political party researcher requested that the Minister of State Services release information relating to a recent state sector wage round. The Minister had been regularly receiving briefings from the State Services Commission regarding various industrial negotiations being conducted within the state sector. The Minister refused to release this information on the grounds that it would prejudice industrial negotiations.
During the course of the investigation it became apparent that some of the information related to negotiations that had already been concluded whilst other portions related to the New Zealand Defence Force, in respect of which industrial negotiations do not occur.
The Minister explained that the information provided an insight into central agencies’ thinking on various employment issues and tactics. Because of the cyclical nature of industrial negotiations, it was submitted that release of information relating to negotiations that had already been concluded would still be likely to prejudice future negotiations.
It was concluded that release of the information would indeed reveal negotiating strategies, which would prejudice both current and future industrial negotiations in the state sector. The view was formed that section 9(2)(j) of the OIA applied to all of the information, except that which related to the New Zealand Defence Force.
The Minister also submitted that section 9(2)(ba)(i) of the OIA applied to all of the information which related to industrial negotiating strategies. This was because:
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state sector organisations are required by statute to consult with the State Services Commission over terms and conditions of employment;
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most state sector organisations provide extensive copies of their own documentation, as opposed to papers prepared specifically for the State Services Commission. This goes beyond the Commission’s minimum requirements and enhances the ability of the Commission to understand the employer’s broader human resources objectives and overall departmental strategy;
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the information provided to the Commission is subject to an obligation of confidence; and
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the Commission believed that if the information were released, state sector organisations would likely provide only a minimum of information thereby making the consultation process less effective.
In terms of section 9(2)(ba)(i), it was concluded that:
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supply of the information was compelled under the authority of several enactments and is subject to an obligation of confidence;
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disclosure of the information would be likely to prejudice the supply of such comprehensive information by state sector employers in the future; and
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it is in the public interest that information of this nature continue to be provided to the State Services Commission.
The view was formed that section 9(2)(ba)(i) applied to all of the information, including that relating to the New Zealand Defence Force.
Consideration was then given to whether there were any countervailing public interest considerations in terms of section 9(1) of the OIA which outweighed the interests protected by sections 9(2)(j) and 9(2)(ba)(i). A public interest was identified in the financial implications of such negotiations and the significant impact that industrial disputes can have upon the performance of the public sector generally.
It was concluded, however, that these public interest considerations did not outweigh the need to withhold because:
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the bargaining parameters for state sector industrial negotiations are publicly available; and
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Ministers and officials are frequently held publicly accountable for the progress and resolution of industrial disputes.
So long as there was ultimate accountability for the outcome of the negotiations, there was no public interest in this instance which was strong enough to outweigh the interests protected by sections 9(2)(j) and 9(2)(ba)(i). The Minister was entitled to withhold the information requested.
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.
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