Request for minute from Chief of Air Staff to Chief of Defence Force

Free and frank opinions
Legislation:
Official Information Act 1982
Section 9
Legislation display text:
Official Information Act 1982, s 9(2)(g)(i)
Agency:
New Zealand Defence Force
Ombudsman:
Hon Anand Satyanand
Case number(s):
W45367
Issue date:
Language:
English

Request for minute from Chief of Air Staff to Chief of Defence Force regarding return of aircraft to Samoa to uplift a civilian passenger—minute contained free and frank expressions of opinion—factual information and summary of opinions released—manner in which opinions expressed particularly frank—s 9(2)(g)(i) applied—public interest in release satisfied by release of summary

This case involved a request by a Member of Parliament for all information held by the New Zealand Defence Force (NZDF) relating to the return of a Hercules C130 flight to Faleolo Airport, Samoa, on 17 August 2000 to uplift a civilian passenger whose daughter had been injured in New Zealand. The aircraft had returned to Samoa after a request from the Minister of Defence, despite advice to the contrary from the RNZAF. While most information was released, a minute from the Chief of Air Staff to the Chief of Defence Force was withheld in reliance upon section 9(2)(g)(i) of the OIA.

During the course of the investigation, it was noted that parts of the minute contained factual information which had already been publicly disclosed. The NZDF agreed to release this information together with a summary conveying the broad nature and content of the remaining paragraphs of the minute. The requester, however, continued to seek the withheld information.

The NZDF submitted that the minute was a particularly free and frank opinion, and had to be written in this fashion in order to draw attention to the issues it raised. The NZDF considered that the ability of defence personnel to express their opinions in this manner would be prejudiced if the relevant paragraphs were released in full. It also submitted that such frankness was necessary for the effective conduct of public affairs when dealing with operational matters (which could potentially involve the safety of personnel).

It was accepted that the information at issue was particularly free and frank and that its release would inhibit the future expression of opinions in this manner. It was also accepted that the manner in which the opinion was expressed was necessary for the effective conduct of public affairs. For these reasons, it was considered that section 9(2)(g)(i) applied. The release of a summary of the broad nature and content of the minute did not detract from the need to protect the ability of NZDF personnel to express their views in a free and frank fashion in the future.

Consideration then had to be given to whether there were any public interest considerations favouring release of the information in terms of section 9(1) of the OIA which outweighed the need to withhold. A public interest was identified in the information to the extent that its release promoted the accountability of Ministers and officials. However, the view was formed that the release of the summary by the NZDF satisfied this public interest. The summary fairly and accurately reflected the content and tone of the minute as a whole. As such, the public interest in release did not outweigh the need to withhold to protect the manner in which the opinions were expressed.

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.

Last updated: