Request for notes of a telephone conversation between officials

Request for notes of a telephone conversation between officials at the Commerce Commission and Ministry of Commerce—information withheld under s 9(2)(g)(ii)—factors to be considered when considering whether release would result in improper pressure or harassment of officials and thereby prejudice the effective conduct of public affairs

The information at issue in this case was a record of a telephone conversation made between an official at the Commerce Commission and an official at the Ministry of Commerce, and was withheld by the Commission in reliance on section 9(2)(g)(ii) of the OIA. The Commission advised that while the noted contents of the conversation was a correct record of what had been discussed, some of what had been said by one official was incorrect with regard to certain essential facts.

Section 9(2)(g)(ii) provides grounds for withholding information if, and only if the withholding is necessary to:

(g)       maintain the effective conduct of public affairs through—

(ii)       the protection of such Ministers, members of organisations, officers, and employees from improper pressure or harassment.

The interest protected by this withholding ground is the effective conduct of public affairs, and not simply the protection of the persons specified from improper pressure or harassment. For the section to apply, the consequences of making requested information available must not only be seen to result in improper pressure on, or harassment of, any of the specified persons, but that the consequence of this would be to the detriment of the effective conduct of public affairs.

For improper pressure or harassment to provide grounds for withholding information it must be more than simply unwanted criticism or publicity. It must be a course of conduct that affects the person against whom it is directed to such a degree that he or she is unable to perform his or her duties effectively and thereby impairs the effective conduct of public affairs.

When considering the likely effect of the release of information where section 9(2)(g)(ii) may be an issue, it is necessary to establish:

• What sort of behaviour may be expected as a result of the release of the information.

• Against whom the behaviour is expected to be directed.

• Whether that person or those persons fall within the categories specified in the legislation.

• How that person or those persons contribute to the effective conduct of public affairs.

• How that contribution is likely to be affected by the expected behaviour.

After considering these factors, the Commerce Commission accepted that the consequences of making the information available would not be of a kind where section 9(2)(g)(ii) could apply and released the information.

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.