Request for research data held by Crown Research Institute
Research data subject to clear confidentiality assurances—some farmers would be reluctant to participate in similar trials if released—s 9(2)(ba)(i) applies
This request by a private individual was, in part, for data held by AgResearch (New Zealand Pastoral Agriculture Research Institute Limited), a Crown Research Institute (CRI). The information had been generated as a result of research which AgResearch had been commissioned to undertake by a commercial client.
Amongst its concerns about release of the information at issue, AgResearch pointed out that disclosure would be in breach of the confidentiality obligations it had to the owners of the farm properties used to collect data as well as the confidentiality clause in its contract with the client. It argued that such breaches would prejudice its ability to undertake further research of the same or similar nature and that there was a strong public interest in it being able to further its research in New Zealand.
Section 9(2)(ba)(i) of the OIA appeared to be relevant to the first concern. The information itself consisted of detailed analyses of sample material provided by individual farmers. The use by AgResearch of the various farm properties to collect data was subject to clear confidentiality assurances provided to the farmers. Accordingly the first stage of the section 9(2)(ba)(i) test was met. Furthermore, if any information about the various tests conducted were to be released on an individual basis, at least some farmers would be likely to be reluctant to participate in similar trials in future. This would prejudice AgResearch’s ability to undertake future research programmes. It was therefore concluded that the second stage of the section 9(2)(ba)(i) test was also met.
Having accepted that disclosure of the information would prejudice the interest which section 9(2)(ba)(i) seeks to protect, it was necessary to consider the application of section 9(1) of the OIA and assess whether there were any public interest considerations favouring the disclosure of the information at issue which outweighed the interest in withholding. In this case, no such considerations were identified. The data could be withheld in terms of section 9(2)(ba)(i).
This investigation highlighted a general concern on the part of CRIs about the application of the OIA in circumstances where confidentiality clauses have been included in contracts between CRIs and third party commercial clients. CRIs believed that, in the absence of effective confidentiality clauses, they were likely to encounter difficulties obtaining commercial revenue because potential clients would be concerned about the ability of CRIs to hold in confidence research which a CRI has undertaken for a particular client. The primary concern of the potential clients was that commercial competitors might be able to use the OIA Act to obtain access to that research to the commercial disadvantage of the client in that:
a competitor might obtain free of charge research which the client had paid the CRI to undertake for it alone; and
a competitor could negate any commercial advantage the client may have obtained over competitors as a result of the research.
The OIA does not allow for a blanket assurance to be given that all such research information can be withheld. The existence of a confidentiality clause does not, on its own, provide good reason for refusal under the Act. However the existence of such a clause is an important element in establishing whether sections 9(2)(b)(ii), 9(2)(ba) or 9(2)(i) are relevant in a particular case. The existence of a confidentiality clause provides strong evidence of an understanding between the parties concerned that the information covered by it is ‘subject to an obligation of confidence’ for the purposes of section 9(2)(ba). It also provides supporting evidence that the party to which the information relates considers it to be ‘commercially sensitive’ and, to that extent, disclosure may be likely to:
prejudice unreasonably the commercial position of that party (section 9(2)(b)(ii) refers); and
cause the party not to enter into future contracts with the CRI concerned to the detriment of that CRI’s commercial activities (section 9(2)(i) refers).
In the context of concerns that disclosure would be likely to cause prejudice or disadvantage to the ability of CRIs to obtain commercial revenue, section 9(2)(i) is the more relevant provision. Section 9(2)(i) is always likely to apply where a CRI has entered into a commercial contractual arrangement to undertake research for a client. Disclosure of that research to another party without the specific consent of the client would prejudice the CRI’s ability to obtain further contracts.
However, before good reason for refusal will exist under the OIA consideration must always be given pursuant to section 9(1) to whether, in the circumstances of a particular case, there are any countervailing considerations which outweigh the need to withhold under section 9(2)(a)-(k). As a matter of law, a blanket assurance cannot be given that the countervailing public interest will never be strong enough to outweigh the need to avoid prejudice or disadvantage to a CRI’s commercial activities. However, CRIs can reasonably advise potential clients that in cases where a Crown agency is acting in a purely commercial activity, completely separate from any regulatory or social policy function, there is likely to be little countervailing public interest in disclosure.
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.