Request for list of all strategic goods exported from New Zealand
Request for list of all strategic goods exported from New Zealand—some information provided but name of exporter and value before tax of strategic goods withheld—9(2)(ba)(i) applied—residual issue of public accountability resolved following inquiries under s 13(3) of the Ombudsmen Act 1975—MFAT agreed that in future, it would disclose in its annual report the statistics it had previously made available only on request
This investigation and review involved a decision of the Ministry of Foreign Affairs and Trade (MFAT) to decline in part a request by a special interest group for a list of all strategic goods exported from New Zealand in the previous financial year. MFAT provided a list showing the country of destination, the year and the item exported, but refused to provide the name of the exporter or the value before tax of the strategic goods exported. In reaching this decision, it relied on sections 9(2)(b)(ii) and 9(2)(ba)(i) of the OIA.
The information at issue had been supplied to MFAT by exporters seeking approval to export strategic goods. The supply of such information is required pursuant to the Export Prohibition Regulations 1953. Under this regime, the Customs Department grants permission for each export on the advice of MFAT. It was clear that the information was subject to an obligation of confidence. MFAT advises exporters that information received for permit purposes is treated as ‘commercial in confidence’ and the understanding upon which the information is received is expressly documented in MFAT’s policy document, ‘Business’. It therefore seemed that section 9(2)(ba)(i) was the provision most closely relevant to MFAT’s concerns.
Having established the first leg of the test which has to be met before it can be said that section 9(2)(ba)(i) applies to information, namely, that the information was subject to an obligation of confidence, consideration was then given to whether disclosure would prejudice the supply of similar information from either the same applicant or other applicants for permits, notwithstanding that the supply of the information is required under statutory regulations. There were several relevant factors to be taken into account in considering this aspect of the case.
First, for MFAT to be able to discharge its regulatory function, it needs to ensure that the information supplied to it by applicants is complete and accurate. The level and quality of information made available by applicants reflected the suppliers’ understanding that it would be protected from disclosure in terms of the ‘commercial in confidence’ basis on which it was supplied.
Secondly, it was clear from the evidence made available in the course of the inquiries that some exporters were very concerned about the impact release of the information at issue would have, in conjunction with that already available, on the commercial position of their companies.
Thirdly, from the information made available, it appeared possible that strategic goods could leave the country without a permit. Many of the strategic goods are normally intended for civilian use and are therefore not obviously goods which require a strategic goods permit.
In light of these factors, there appeared to be a distinct or significant possibility of prejudice to the future supply of similar information if the information requested was released.
In reaching this view, regard was had to the fact that many exporters provide MFAT with more detail than is strictly required and some consult MFAT about proposals before entering into export agreements. It was clear that this level of co-operation would be adversely affected if the information was released. Consideration then had to be given to whether it was desirable that information should continue to be supplied. Clearly, MFAT needs information of the nature at issue to enable it to discharge effectively its regulatory function. MFAT has a responsibility to ensure that strategic items do not leave New Zealand without proper permits and to prevent the export of items which could be used to increase the proliferation of arms in troubled areas or add to the proliferation of weapons of mass destruction. Its role in this respect is clearly enhanced if it is able to maintain a positive relationship with the industries involved and receive additional information from exporters which enables it to gain a complete picture of the exports and the end-use. If exporters attempt to hide information or exports then not only would this diminish MFAT’s ability to discharge its regulatory function, but its ability to comply with New Zealand's international obligations under various non-proliferation treaties would also be jeopardised.
Accordingly, notwithstanding that:
exporters are under a statutory obligation to supply the information at issue; and
penalties are in place for non-compliance; and
the Customs Department may stop and refuse the export of any item which it believes requires a permit;
in reality both MFAT and the Department rely on the honesty of exporters for the supply of the information required by the Regulations. The only way to guarantee full compliance with the Regulations would be to inspect every item exported from the country and this would simply not be practicable.
In light of the foregoing considerations, the view was formed that, subject to any countervailing public interest considerations favouring disclosure in terms of section 9(1), section 9(2)(ba)(i) applied to the information at issue.
There is a public interest in MFAT accounting publicly for its regulatory function. In this respect, MFAT was willing, if requested, to provide some information on its role under the Export Prohibition Regulations. No other public interest considerations were identified which outweighed the need to withhold the information at issue in terms of section 9(2)(ba)(i). It was therefore concluded that section 9(2)(ba)(i) could be relied on to withhold the information. Having formed that view, it was not necessary to consider the application of section 9(2)(b)(ii) to the information.
Notwithstanding the finding that there was good reason in terms of the OIA to withhold the information, there were some residual reservations about the extent to which MFAT accounted to the public for its functions under the Export Prohibition Regulations. After further inquiries made of MFAT in terms of section 13(3) of the Ombudsmen Act 1975, it agreed that it would in future disclose in its annual report the statistics it had hitherto made available only on request, thereby enhancing its public accountability for its functions under the Regulations.
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.