Section 9(2)(ba)(i) OIA applied to staff interview records—implied obligation of confidence—release would be likely to prejudice the future supply of information to auditors—it is in the public interest for staff members to cooperate with audits—no public interest override—good reason to withhold
Background
A Corrections officer subject to disciplinary action requested a copy of staff interview records in relation to the internal audit of a prisoner escape. The Department of Corrections withheld the records under section 9(2)(ba)(i) of the Official Information Act (OIA), and the requester complained to the Ombudsman.
Investigation
The Chief Ombudsman requested a copy of the interview records and an explanation of the reasons for withholding.
The Department explained that staff were told their interviews would be confidential. This was necessary to ensure that ‘full and frank’ comments were received. Without that approach, the Department would likely not receive sufficient information to adequately investigate an incident. It would prejudice the supply of similar information in future if the records were released against the express wishes of the staff.
The Chief Ombudsman noted that some of the interview records contained personal information about the requester. She therefore transferred the complaint, in part, to the Privacy Commissioner, for consideration under the Privacy Act 1993.
The Chief Ombudsman considered whether section 9(2)(ba)(i) of the OIA applied to the remaining information at issue.
Confidentiality
Section 9(2)(ba)(i) applies when releasing information that is ‘subject to an obligation of confidence’ would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied.
The Chief Ombudsman commented that, although each official information request must be considered on its own merits, successive Ombudsmen have accepted that it may be necessary to withhold information provided by staff during internal audits or investigations to protect the interests identified by sections 9(2)(ba)(i) and (ii) of the OIA.
The Chief Ombudsman was satisfied that the staff provided information to the auditors on the understanding that it would be held in confidence.
She also accepted that disclosure of this information would be likely to inhibit the provision of information by staff to internal auditors in similar situations in future. A necessary part of the audit involved asking staff to report on what other staff did and what instructions were, or were not, received from managers. It is inevitable that staff would be reluctant to provide full and frank comments in this regard if there were a possibility that those comments would be disclosed.
It is clearly in the public interest for the Department’s internal audit unit to obtain as much information as possible about the circumstances leading to a prisoner escape. This information is vital to the Department’s ability to review its practices and hopefully prevent similar incidents in the future. Any lessening of the Department’s ability to conduct effective enquiries would impede this objective.
Public interest
Section 9(2)(ba)(i) is subject to a public interest test. This means the need to withhold must be balanced against the countervailing public interest in release. If the countervailing public interest weighs more heavily, the information must be released. If not, it can be withheld.
The requester in this case faced disciplinary action as a result of the internal audit findings. They maintained that they were entitled to all information gathered during the internal audit in the interests of natural justice.
The Chief Ombudsman acknowledged the public interest in the release of information to promote procedurally fair audit and disciplinary processes. However, she did not consider that the requester’s ability to contest the disciplinary action taken against them had been hindered by the refusal to provide the staff interview records. The requester had received the internal audit report, which clearly set out the perceived failings in their performance. In addition, the public interest in people being able to access personal information about themselves was addressed in this case by the Privacy Commissioner’s investigation.
Outcome
The Chief Ombudsman formed the opinion that section 9(2)(ba)(i) provided good reason to withhold the interview records.
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.