Request for CHE Planning Package for health and disability services in Otago—request refused by Southern Regional Health because of prejudice to negotiations—identification and assessment of countervailing public interest considerations favouring disclosure
As a preliminary step in negotiations for the 1998/99 contract to provide health and disability services to the people of Otago, Southern Regional Health sent a CHE Planning Package to Healthcare Otago in December 1997. A request for a copy of the Package was made, and this was refused by Southern Regional Health in February 1998, under section 9(2)(j) of the OIA.
In March 1998, the Health Funding Authority, which took over the responsibilities of Southern Regional Health following the restructuring of health funding, advised that it had decided to release most of the Package to the requester, withholding only one section and one appendix. It explained that it was in the process of negotiating the 1998/99 contract with Healthcare Otago, and that the Planning Package sent in December 1997 had been the first step in the negotiation process and merely indicative. Actual offers to CHEs were to be made on 31 March 1998, and the negotiations with Healthcare Otago would be based on the March offer and later information. The Health Funding Authority was concerned that release of the balance of the information at issue from the Planning Package could prejudice or disadvantage it in the negotiations.
When the decision was made in February 1998 to refuse the request, negotiations with Healthcare Otago were clearly in contemplation and it was also clear that there was room for genuine negotiations between Healthcare Otago and the Health Funding Authority. The view was formed that release of the information at the time of the refusal would have disadvantaged the Health Funding Authority in the negotiations. Accordingly, in terms of section 9(2)(j) it was necessary to withhold the information in order to enable the Health Funding Authority to carry on, without prejudice or disadvantage, the identified negotiations.
Consideration was given in terms of section 9(1) of the OIA to whether the need to withhold the information was outweighed by other considerations which rendered it desirable, in the public interest, to make that information available. It was evident that there were two public interest considerations to be assessed. The public interest in the release of information to promote the accountability of the Health Funding Authority for the processes by which public money is expended on health, and the public interest in the release of information which would enable participation by the public in decisions as to the funding available to Healthcare Otago for the 1998/99 year.
The view was formed that the public interest in accountability could be met by the release of the information after the negotiations had been concluded. Release at that time would not prejudice the interest that section 9(2)(j) is designed to protect.
However, it did not seem that release of the information at issue would enable effective participation by the public in the decisions made as a result of negotiations based on the March offer. This was because the information at issue in the Planning Package appeared to be fundamentally different from the offer made on 31 March 1998. At the time Southern Regional Health decided to withhold the information, it was aware the information was outdated and that the March offer would differ in major respects. Thus, release of the information covered by the specific request for the Planning Package would not have enabled effective participation by the public in the decisions made as a result of the negotiations, as it would have been misleading and inaccurate as to the actual matters under negotiation. All the information would have demonstrated was the position at December 1997, which had since changed.
The identification of countervailing public interest considerations favouring disclosure is not the end of the matter under section 9(1). Consideration must be given to whether in the particular circumstances these considerations outweigh the established need to withhold the information at issue. In the circumstances of this particular case, the view was formed that the need to withhold the information under section 9(2)(j) was not outweighed by other public interest considerations favouring its disclosure, and so there was good reason under the Act for the information to be withheld.
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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