Request for copies of submissions made to Department of Conservation on a discussion document—submissions released with identities of authors deleted under s 9(2)(a)— no reference to possible release in discussion document—authors were a mix of individuals, government officials and organisations—identities of those making submissions on behalf of organisations and government officials released as not made on personal basis—individuals consulted—identities of those who consented to disclosure were released—s 9(2)(a) applied to remaining information—no public interest favouring release
The Department of Conservation called for submissions from the public on a conservation discussion document. Later, a reporter from a newspaper requested copies of all the submissions from the Department. The Department agreed to release the submissions to the newspaper but deleted all information from them that would identify who the submitters were under section 9(2)(a) of the OIA.
The Department advised that releasing the submissions in their entirety would identify the personal and private opinions on the discussion document held by the particular identified person. It was therefore concerned that this would be a serious infringement of those persons’ privacy, particularly when it was likely that the reporter would subsequently publish the information in his newspaper. Further, it said that the submitters had differing views regarding the issues raised in the discussion document, and the Department considered it prudent to preserve the submitters’ anonymity.
On viewing the information, the Ombudsman noted that the submissions had been made by members of a reasonably small local community. Some of the submitters were individual natural persons making submissions in their personal capacities. Others were organisations, and the individuals who signed these submissions were not making their views known in their personal capacities but in their professional capacities as representatives of those organisations. Two submissions were made by government officials in their official capacities. The Ombudsman considered the distinctions relevant.
The Ombudsman noted that the discussion document did not provide any indication of what would happen to the submissions once received. Therefore, many of the submissions may have been made without any expectation that the opinions expressed might be made publicly available.
The Ombudsman wrote to the individual natural persons who made submissions in their personal capacity, asking for their views on whether release of their identities would infringe their privacy. Of those who responded, some of the individuals advised that they had no concerns with release of their details, whilst others raised concerns with release of their details. The Ombudsman noted that a common theme arising from these consultations was a concern that the Department had not advised, when calling for submissions, that copies of the submissions might be requested from the Department and made available under the OIA.
The Ombudsman also consulted the Privacy Commissioner on the privacy interests raised by this case. The Commissioner agreed with the Ombudsman’ s views.
Finally, the Ombudsman considered whether there were any considerations rendering it desirable in the public interest, to make the information available. He was unable to identify any.
It was the Ombudsman’ s view that section 9(2)(a) did not apply to the identities of those involved in the submissions made by organisations and by government officials, as it was not necessary to withhold this information in order to protect the privacy of natural persons. The persons who signed the submissions were not making their views known in their personal capacities, but in their professional capacities as representatives of those organisations.
The Department agreed to release this information.
In relation to the individual natural persons who had no concerns with release of their identities, it was the Ombudsman’ s view that this information together with generic information as to their location did not need to be withheld under section 9(2)(a).
The Department also agreed to release this information.
However it was the Ombudsman’ s view that the Department was entitled to rely upon section 9(2)(a) to withhold the identifying information from the submissions of the other natural persons who either expressed concerns with release of their identities or who did not respond to his enquiries. There was no public interest favouring release that the Ombudsman could identify. However, he did note that, from the information that had been released, the complainant was aware of the range of submissions that had been made on the discussion document and the source of those submissions (including that, where the submitter had not been identified, the submission was made by an individual member of the public).
Comment
Given the lack of advice in the discussion document that any submissions received from the Department may later be released in response to an OIA request, and given the surprised response from the individuals consulted during the course of this investigation, the Ombudsman noted that, as a matter of good administrative practice, government departments should consider including an explanatory statement when calling for submissions. The following statement has been used in the past:
Submissions provided to the Department may be required to be disclosed in response to any requests under the Official Information Act. If you are an individual, as opposed to an organisation, the Department will consider removing your personal details from the submission … tick the box below.
This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. 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.