Request by TVNZ for names of companies providing Department of Social Welfare with transcripts or videos of TVNZ programmes

Risk of litigation is not an unreasonable prejudice—public interest in release of information enabling pursuit of legal rights and remedies

TVNZ asked the Department of Social Welfare for the names of all transcript companies that had provided the Department with transcripts or videos of TVNZ programmes. It also requested the names of the employees of the companies concerned. In making its request, TVNZ sought to rely on the High Court decision in Television New Zealand v Newsmonitor Services Ltd [1994] 2 NZLR 91. This case held that by copying and selling TVNZ’s transcripts, Newsmonitor Services Ltd had infringed TVNZ’s literary, cinematograph and broadcast copyrights. The Department refused the request under sections 9(2)(a) and 9(2)(b) of the OIA, adding that in its view the making and supply of the transcripts was protected by sections 53(2) and 53(3) of the Copyright Act 1962 (being a reproduction on behalf of the Crown or a Government Department for use within a Government Department or by a servant of the Crown). It noted that this exception had not been alluded to in the summary of Blanchard J’s decision.

In reporting on its decision, the Department of Social Welfare explained that it believed it was entitled to obtain the transcripts and that the company which provided them, acting as the Department’s agent, was also protected by the Copyright Act. It believed that release of the information would unreasonably prejudice the commercial confidentiality of the company concerned.

While section 53 of the Copyright Act might well be relevant to whether the Department and the company had been acting within the law, this was not relevant to the question of whether release of the information would prejudice any of the interests that the OIA seeks to protect. Given the Department’s view that it and its agent had been acting within their rights under the Copyright Act, it was difficult to see that release of the information could unreasonably prejudice the commercial position of the agent. It could in fact enhance that position by establishing the company as a provider in the transcription market. On the other hand, if the Department and the company had not been acting within their rights under the Copyright Act, there would be a public interest in release of the information to enable TVNZ to pursue a legal remedy against the Department and/or the company.

Although release of the name of the company might place it in the position of having to defend litigation, it was difficult to conclude that such an outcome could be said ‘unreasonably to prejudice’ the company’s commercial position in terms of section 9(2)(b)(ii) of the OIA. Litigation and the associated costs are an inherent risk of being involved in business. As the company concerned was in a business which, in the light of Television New Zealand v Newsmonitor Services Ltd, might at least arguably be in violation of the rights of TVNZ, this risk was even more obvious. Accordingly, the view was formed that the risk of possibly being exposed to litigation costs could not be said to prejudice ‘unreasonably’ the company’s commercial position.

It was concluded that even if this view of section 9(2)(b)(ii) were wrong, there was a public interest in TVNZ being able to pursue a legal remedy in this situation. On the face of it, TVNZ had an arguable case, but without the information at issue, it could not pursue a legal remedy. The right to pursue legitimate actions through the Court is a public interest worthy of protection, and accordingly, the view was formed that even if section 9(2)(b)(ii) could be applied to the information at issue, the need to withhold the information was outweighed in terms of section 9(1) by the countervailing public interest considerations favouring disclosure. The Department released the information to TVNZ.

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.