Request for MSD historic claims guidebook
Complaint about the decision to withhold a document containing procedures and guidance under section 9(2)(j) of the Official Information Act—section 9(2)(j) did not apply—engagements conducted on a ‘take it or leave it’ basis are not clearly ‘negotiations’ for the purposes of the OIA—the possibility that release of procedures and guidance would in future prompt fraudulent or exaggerated claims was too remote—difficult to see it was ‘necessary’ to withhold full document when certain information had already been released—even if section 9(2)(j) had applied, the public interest was such that it would outweigh the need to withhold.
On 5 April 2019, the Ministry of Social Development (‘the Ministry’) received a request for an unredacted copy of the ‘MSD Historic Claims Business Procedure and Guidance – March 2019’ document. This document is a guide that explains how the Ministry will assess—and, where appropriate, make an offer of redress—New Zealanders who have made claims of abuse or neglect while in state care.
The Ministry released a redacted copy of the document subject to certain deletions under sections 9(2)(j) and 9(2)(k) of the Official Information Act 1982.
The requester complained to the Chief Ombudsman about the decision.
The Chief Ombudsman observed that requesters have a right under section 22 of the OIA to access documents containing policies, principles, rules or guidelines in accordance with which decisions or recommendations are made in respect of any person. The right under section 22 is subject to, among other things, section 9(2)(j) of the OIA, but not section 9(2)(k). The Ministry agreed that section 9(2)(k) was not applicable in the circumstances.
Section 9(2)(j) of the Official Information Act 1982 (OIA) provides an agency with good reason to refuse a request for information if, and only if, withholding that information is necessary to enable an agency or Minister to carry on negotiations without prejudice or disadvantage, and the need to withhold that information is not outweighed by the public interest considerations favouring disclosure (section 9(1) refers).
The Chief Ombudsman observed that for section 9(2)(j) to apply, it is necessary for an agency to:
- identify the negotiations at issue;
- identify the prejudice or disadvantage that might result to those negotiations if the information were made available;
- advise precisely how the prejudice or disadvantage would occur; and
- determine why disclosure would be so likely to cause the prejudice or disadvantage predicted that it is necessary to withhold it.
The Chief Ombudsman had a number of reasons to doubt whether section 9(2)(j) applied to the requested information in this case.
The Chief Ombudsman was not persuaded that the kind of dialogue described in the guidance material would amount to ‘negotiations’ for the purposes of section 9(2)(j), especially where there is little or no back or forth between the Ministry and its claimants in an attempt to reach mutual understanding and acceptance. Successive Ombudsmen have taken the view that to attract protection, ‘negotiations’ must be genuine, meaning there is at least the possibility of give and take between the parties involved. Dealings conducted on a ‘take it or leave it’ basis are not negotiations. Consequently the Chief Ombudsman was not persuaded that disclosure of the document would prejudice any ‘negotiations’ of the kind that section 9(2)(j) is, as a matter of public policy, intended to protect.
Even if the Ministry’s dealings with claimants did amount to ‘negotiations’ of the kind contemplated by section 9(2)(j), the Chief Ombudsman was not persuaded that disclosure of the guidance material would prejudice or disadvantage those negotiations. The Ministry contended that disclosure of certain information would enable people to make fraudulent or artificially exaggerated claims. The Chief Ombudsman was not persuaded that such a prejudice would arise, however, as there was nothing in the guidance material to suggest that the Ministry would not conduct checks on each claim.
Finally, the Chief Ombudsman was not persuaded that the likelihood of harm arising was so great that it was necessary to withhold the full guidance material. This was in part because the Ministry had made some redactions in its original release of the guidance to the requester, when many of them could be figured out by an experienced advocate. The Ministry had also expressed some wavering views on the likelihood of fraudulent activity.
Consequently, the Chief Ombudsman was not persuaded that that section 9(2)(j) could apply to protect the information at issue.
As section 9(2)(j) did not apply, it was not strictly necessary for the Chief Ombudsman to consider the public interest in this case. Nevertheless, the Chief Ombudsman observed that claimants must have access to the rules, guidance, and policies affecting their claims to make sure they are receiving a service that is consistent and fair.
The Chief Ombudsman observed that release of all the guidance material at issue in this case would help claimants to be fully informed about how their claim will be assessed and, in turn, provide a better sense of closure and an increased feeling of fair treatment by the Ministry. Consequently, even if the Ministry had established that disclosure of the material would create a harm of the kind contemplated by section 9(2)(j), the public interest in release of this information would have carried a significant weight.
The Chief Ombudsman recommended that the Ministry release to the requester an unredacted copy of the ‘MSD Historic Claims Business Procedure and Guidance – March 2019’ document.
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.
 Office of the Ombudsman, Negotiations: A guide to section 9(2)(j) of the OIA and section 7(2)(i) of the LGOIMA, available at: https://www.ombudsman.parliament.nz/resources/negotiations-guide-section-92j-oia-and-section-72i-lgoima
 This is reflected in the presumptive right of people to seek documents containing policies, principles, rules or guidelines which inform decision-making under section 22 of the OIA, subject only to certain exceptions including section 9(2)(j) of the OIA.