Request for staff named in emails about genetically modified corn
Section 6(d) OIA did not apply—no real and objective risk of danger to safety—s 9(2)(g)(ii) OIA did not apply—many of the names were already publicly available in connection with this issue and no harm had ensued—section 9(2)(g)(i) OIA did not apply—information was not in the nature of opinion, free and frank or otherwise—opinions were expressed by relatively senior staff—section 9(2)(a) OIA did not apply—little or no privacy interest in information about the performance of official functions by senior public servants—public interest in transparency given concerns about credibility and integrity.
In 2007, Greenpeace published a study questioning the safety of a type of genetically modified corn approved for use in New Zealand. The New Zealand Food Safety Authority (NZFSA) commissioned Environmental Science and Research Ltd (ESR) to review the Greenpeace study. ESR provided initial advice that the safety concerns raised by Greenpeace could not be refuted without further study.
After two further studies were published, the NZFSA went back to ESR and asked them to update their advice. At that point, ESR withdrew its initial advice because it had not been subject to the usual internal review process, and submitted a revised and updated final report.
The Sustainability Council, concerned about ESR’s handling of the matter, and that the NZFSA might have been ‘shopping’ for advice, requested information about the review. It complained to the Ombudsman about decisions by the NZFSA and ESR to redact all staff names from the emails supplied, other than the Director of the NZFSA’s Policy Group.
The agencies opposed the release of staff names in connection with the contentious issue of genetic modification. They argued that:
- this would give rise to a risk to the safety of the staff, or a risk that they would be subjected to improper pressure or harassment;
- in this context, the staff had a ‘higher than usual’ privacy interest; and
- disclosing the names could have the effect of significantly inhibiting the free and frank expression of opinions.
Personal safety and harassment of individuals
Section 6(d) of the OIA provides good reason for withholding official information if the making available of that information would be likely to endanger the safety of any person. The phrase ‘would be likely’ requires more than a mere possibility that disclosure may have a prejudicial effect. The Court of Appeal in Commissioner of Police v Ombudsman  1 NZLR 385 (at 391) interpreted that phrase to mean ‘a serious or real and substantial risk to a protected interest, a risk that might well eventuate’.
Section 9(2)(g)(ii) of the OIA provides good reason for withholding official information (subject to a public interest test) if, and only if, it is ‘necessary to ... maintain the effective conduct of public affairs through … the protection of [Ministers, members, officers or employees of agencies] from improper pressure or harassment’.
In order for this section to apply, there must be a reasonable likelihood of improper pressure or harassment, and a link between the anticipated behaviour, the impact upon the person to whom it is directed, and the effective conduct of public affairs. ‘Improper pressure or harassment’ is something more than ill-considered or irritating criticism, or unwanted publicity. It is a course of conduct that has such an effect on the person against whom it is directed that he or she is unable to perform his or her duties effectively and hence the effective conduct of public affairs is at risk.
The Ombudsman accepted that disclosure of an individual’s connection with genetic engineering or modification may, in some circumstances, give rise to a credible risk to that individual’s safety, or a risk that they may be subjected to improper pressure or harassment of such a degree that the effective conduct of public affairs is prejudiced. The question was whether those circumstances were present in this case.
The Ombudsman noted that the NZFSA had published ESR’s initial advice and final report in full online, at the same time that it redacted staff names from the emails released to the requester. The published information included most of names at issue. The names of those individuals were therefore already publicly available in connection with the issue of genetic modification. Given that the NZFSA felt able to release most of the names to the world at large, it was difficult to see any credible basis for withholding the same or similar information from the background emails.
The agencies argued that disclosing the names in the context of the emails was more sensitive, and that if particular views were attributed to individuals, they could be targeted by the requester or others.
This might have been a valid argument. However, the emails were no more sensitive or controversial than the published information. If anything, the published information was more sensitive or controversial—and certainly more high profile—in that it represented the official scientific conclusions as to the safety or otherwise of the product in question. Accordingly, the most significant (and differing) points of view were already in the public domain, and clearly attributed to the relevant staff. The agencies had not identified any specific views in the emails, where disclosure of the relevant names would pose any greater risk to those individuals.
The Ombudsman considered a Police threat assessment provided in support of the decision to withhold. However, that threat assessment was too generalised to be of any significant weight. It simply stated that genetic modification issues had been the subject of protest activity, and that protest activity had involved the targeting of individuals. There was no supporting evidence, and no link between those statements and the information at issue here.
While it was not strictly relevant to the Ombudsman’s investigation and review (which focuses on the decision at the time it was made), the Ombudsman also noted that, despite the publication of many of the names at issue in connection with the issue of genetic modification, no harm or harassment had ensued in the meantime.
The Ombudsman was not convinced that there was a serious, real or substantial risk that disclosure would endanger the safety of either the already-named individuals, or those individuals not as yet named. Nor was there any supporting material to suggest a reasonable likelihood of harassment of those individuals.
The Ombudsman invited further submissions, including personal representations from any staff members who remained concerned for their safety after considering his comments. However, none were received, and he confirmed his opinion that sections 6(d) and 9(2)(g)(ii) did not apply.
Free and frank expression of opinions
Section 9(2)(g)(i) of the OIA provides good reason for withholding official information (subject to a public interest test) if, and only if, it is necessary to maintain the effective conduct of public affairs through the free and frank expression of opinions by or between or to Ministers of the Crown and officials.
The Ombudsman commented that there may well be instances where an individual has advanced particularly sensitive or controversial advice which, for whatever reason, should not be attributed.
However, it was not enough to assert that disclosure of staff names in connection with a contentious issue would significantly inhibit those officials from expressing free and frank opinions in the future. One must have regard to the particular circumstances of the case, including factors such as:
- the nature and content of the information at issue and what it would reveal about the individuals concerned;
- the extent of information already in the public domain; and
- the seniority of the individuals.
Having regard to these factors in the particular circumstances of this case, the Ombudsman was not persuaded that the predicted inhibition was so likely to occur that it was necessary to withhold the names.
Much of the information was not in the nature of opinion, free and frank or otherwise. Much of it was administrative in nature, for example, providing copies and seeking further information. Some of it could be inferred from the publicly available material. Many of the staff were only involved in a tangential or minor way.
The staff who did express opinions were also relatively senior, either by virtue of their management functions, or their recognised expertise in a particular area. As experienced public servants and professional scientists, these individuals could be expected to continue to express their opinions freely and frankly in the future, and not to be deterred by the disclosure of what was largely innocuous material in connection with their identities.
In the Ombudsman’s opinion, section 9(2)(g)(i) of the OIA did not apply to the names.
Section 9(2)(a) of the OIA provides good reason for withholding official information (subject to a public interest test) if, and only if, it is ‘necessary to protect the privacy of natural persons’. The Ombudsman began from the starting point that it will not usually be necessary to withhold staff names in order to protect their privacy.
The Ombudsman consulted the Privacy Commissioner. The Commissioner concluded that the privacy interest in the names was ‘very weak’. It was difficult to see any residual privacy interest in the already-published names. She stated that ‘where information identifies senior officials and concerns only the exercise of official duties, it is difficult to see that any expectation of privacy could reasonably be held.’ ESR had not ‘put forward any strong argument as to why these officials have a particular privacy interest at stake here.’ Given ‘their level of seniority, and the public function that they are discharging,’ they did not have a strong privacy interest in withholding their identities from release.
The Ombudsman did not see did not see a privacy interest in the names of the staff in this case because:
- as relatively senior officials, they should reasonably expect some information about the performance of their jobs to be disclosed; and
- the information was connected with the performance of their public functions (insofar as ESR is wholly owned by the New Zealand Government) and not their private lives.
He concluded that there was little or no privacy interest at stake here, and therefore, it was not necessary to withhold the names under section 9(2)(a) of the OIA.
The Ombudsman went on to consider the public interest in release of the information, even though this was not strictly necessary. He noted the Sustainability Council’s concerns about how this matter had been handled by the NZFSA and ESR. The Council wanted to see which individuals were involved in the contracts and understandings that defined how the scientific investigation was to be undertaken, what it was to address, and other relevant parameters.
This was not a case where disclosure of the names would add little or no value to the information already disclosed. In light of the Sustainability Council’s concerns about the credibility and integrity of the review, there was a public interest in both agencies being completely transparent about their handling of the matter.
The Ombudsman formed the opinion that there was no good reason to withhold the names, and the NZFSA and ESR agreed to release them.
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.