Introduction
Holders of official information are not justified in taking a blanket approach when responding to requests for official information, the New Zealand High Court has ruled. Nor is it sufficient for a decision maker to make decisions on disclosure based on general knowledge of the information sought, rather than by considering each piece of requested information.
The information at issue concerned New Zealand's involvement in negotiations regarding the Trans-Pacific Partnership (TPP). Opponents of the agreement, seeking more information about the negotiations, sought judicial review of the minister of trade's refusal to release information under the Official Information Act 1982. The ruling confirms the primacy of open government and access to information under freedom of information legislation, but also the limits to the courts' ability to review the substantive merits of a decision to withhold information in a particular case.
In March 2010 New Zealand, together with 11 other countries, commenced negotiations on the TPP, which were concluded on October 6 2015 (after the hearing of the judicial review application, but prior to the judgment's release). During negotiations, the government considered that it was vital to maintain confidentiality around its bargaining position, in order to achieve the best outcome for New Zealand. All negotiating countries had agreed that documents created in relation to the agreement would be treated in confidence. Opponents called on the government to provide more information and transparency regarding the negotiation process.
In January 2015 Jane Kelsey submitted a request to the minister of trade for information concerning negotiation of the agreement, under eight categories of documents.(1) On advice from the Ministry of Foreign Affairs and Trade, the minister refused the request for the following reasons (of those provided for in the act):
- Making the information available would be likely to prejudice the government's international relations.
- Making the information available would be likely to cause serious damage to the New Zealand economy.
- It was necessary to withhold the information to enable the government to continue negotiating without prejudice or disadvantage.
- The information could not be made available without substantial collation or research.
- Withholding the information requested was not outweighed by any other considerations which rendered it desirable in the public interest to release the information requested.
The first and second points are "conclusive reasons" under the act for withholding information.(2) The third reason falls under the category of "other reasons"(3) and the fourth is an administrative reason.(4) The fifth reason arises from the requirement that the decision maker, before withholding information under the "other reasons" category, balance the public interest in withholding information with other considerations supporting disclosure.(5)
Kelsey complained to the ombudsman regarding the minister's decision. The chief ombudsman investigated and released a review endorsing the minister's decision not to release information in six of the eight categories of document and deferring her decision in respect of the other two categories.
Kelsey, together with several other applicants, mostly public interest organisations, sought review of the minister's decision in relation to the six categories of information on which the chief ombudsman had ruled.
The court noted that the judicial review was confined to questions about the correct interpretation and application of the act. It was not a forum to consider the substantive merits of the minister's decision (or the ombudsman's review).
Blanket refusal of documents
The first ground of review was that the minister had erred in law by rejecting the request on a 'blanket' basis. The applicants claimed that the minister had assumed that all documents falling under the request could be withheld, because he believed that he knew their contents.
The minister took the view that his knowledge and experience (which included extensive involvement in the TPP negotiations) entitled him to adopt a pragmatic approach towards the request. He would have seen many of the documents falling into the requested categories and it was clear to him, without his officials undertaking a document-by-document analysis, that many would be of the "utmost sensitivity" and could properly be withheld. Because he was aware of the material in the documents sought, he also did not assess individual documents to consider whether they contained any "anodyne" material that might be released or any material already in the public domain, because he did not consider that Kelsey sought the release of such information.
The court held that this blanket approach was at odds with the text, scheme and purpose of the act. The starting point under the act was that the minister was obliged to release all information that could not lawfully be withheld. In determining whether the information could be withheld, the minister or his officials had to assess each individual piece of information. If it became apparent that this exercise would involve substantial collation or research, the minister was obliged to follow the procedure set out in the act for such situations – namely, to consider whether to impose charges or to extend the time for complying with the request and ensure that officials conferred with Kelsey to see whether she would modify her request – before he could refuse the request on that ground. He had not done so.
The court acknowledged that compliance with the request as outlined above would have involved substantial effort,(6) but held that this was the price that Parliament had envisaged in passing the act. The genuine challenges posed by the request did not entitle the minister or his officials to circumvent their duties.
The court also noted that, in responding to act requests, it is not for the information holder to second guess a requestor's intention. Therefore, the minister should not have assumed that Kelsey did not wish to receive anodyne information. If he wished to clarify his understanding of the request, the act specified a procedure for that.
Failure to explain grounds for refusal
The applicants complained that the minister had failed to explain properly the basis for withholding the information when Kelsey requested further grounds under Section 19 of the act.
The court began its analysis with a helpful discussion of the distinction between 'reasons' and 'grounds' under Section 19 of the act. Under Section 19(a)(i), a decision maker who refuses to give information requested must give the reason for the refusal. The reasons for which information may be withheld are set out in Section 18(a) to (h). In this case, the first reason, Section 18(a), is that by virtue of Section 6 (conclusive grounds for withholding information) or Section 9 (other grounds for withholding information), there is "good reason for withholding information". Section 18(f) refers to situations in which the information cannot be given without substantial collation or research. The court held that all a decision maker need do to comply with Section 19(a)(i) is to identify which of the reasons set out in Section 18(a) to (h) is relied on.
Section 19(a)(ii) provides that the decision maker must give grounds in support of the reason if the applicant requests this. The court noted that the use of 'reasons' and 'grounds' in these sections is an inversion of normal usage. The normal process of decision making would involve a decision maker specifying the grounds for refusal by identifying the statutory basis for refusal and thereafter providing adequate reasons to explain those grounds.
In this case there was no doubt that the minister had provided reasons for refusing the request. In his letter to Kelsey refusing the request, he identified which of Section 18's statutory reasons had been relied upon. (Indeed, although the court did not make this finding, it appears from the discussion of the facts that the minister went somewhat further by identifying the individual withholding reasons in Sections 6 and 9, which are all encompassed as a single reason under Section 18(a).)
When Kelsey sought the grounds for those reasons under Section 19(a)(ii), the minister repeated the reasons set out in his previous refusal. The court held that simply reciting which of Section 18's statutory reasons had been relied upon was insufficient to discharge the minister's statutory duty to provide adequate explanation of the grounds in support of his reasons. Section 19(a)(ii) requires a decision maker to explain his or her decision for withholding information, so that the applicant can understand the basis on which the decision has been made. Although the court did not say so expressly, it appears from its factual finding that an explanation of grounds in this case also required something further than identification of the specific Section 6 and 9 withholding grounds that had been relied on.
Contracting out of Official Information Act
The applicants submitted that the confidentiality agreement signed by the TPP countries was sweeping and, if applied literally, would reverse the presumption of the release of official information under the act. The court declined this ground of review. It noted that one of the conclusive reasons for withholding information under the act was on the basis that disclosure would prejudice the entrusting of information to the New Zealand government by other governments on the basis of confidence.(7) Accordingly, the act contemplated the New Zealand government receiving information from other governments in confidence. The court further noted that comparable freedom of information schemes contain similar provisions.(8) They reflect the importance that parliaments place on governments preserving the confidence reposed in them by other governments.
Substantive grounds
The court declined the grounds of review which challenged specific reasons for withholding information, noting that it was outside its jurisdiction on judicial review to consider the minister's substantive decision. Nor did the court consider that it was possible for it to make an essentially factual finding as to whether the minister had responded to the request for information as soon as was reasonably practicable.(9) However, it was prepared to offer guidance on the application of specific reasons. In relation to Section 6 conclusive reasons for withholding documents, the court noted the following:
- While there is no onus of proof, a decision maker alleging good reason to withhold should bring forward material to support the proposition; if there is no good reason, then the information should be released.
- The conclusive reasons for non-disclosure are engaged only if releasing the information would be likely (ie, a "real or significant possibility") to result in one of the specified consequences:
- prejudice to security;
- prejudice to the entrusting of information to the government;
- prejudice to the maintenance of law;
- endangerment to a person; or
- serious damage to the economy (a high threshold).
In relation to Section 9 ("other") reasons for withholding documents, the court observed that the requirement that withholding information be "necessary" to protect the identified interests (those relied on in this case being "to avoid prejudice to the substantial economic interests of New Zealand"(10) and to enable a minister or department to carry out negotiations without prejudice or disadvantage),(11) imposed a higher threshold than the "would be likely to" test under Section 6 (conclusive reasons). The decision maker would have to be satisfied that withholding the information requested was essential to protect the interest or avoid the consequences set out under Section 9.
The court quashed the minister's decision to refuse Kelsey's request and directed him to reconsider it, emphasising the following:
- There was no lawful basis for the minister to withhold some of the information requested in the way that he did. The minister was required to ensure that officials assessed each piece of information requested against the criteria in the act for withholding information.
- The act plays a significant role in New Zealand's constitutional and democratic arrangements and it is essential that its meaning and purpose are fully honoured by those required to consider the release of official information.
The judgment confirms the primacy of open government and access to information under the act, even if requests will cause significant administrative burdens. It reminds those subject to the act that a pragmatic response to an onerous request is not justifiable if it does not honour the purpose of the act and follow the process that it sets out for responding to burdensome requests.
The judgment is likely to be useful to requesters, information holders and practitioners seeking guidance on the act's application. Although its statutory interpretation is straightforward and unlikely to be controversial, the judgment is significant as one of only a few instances of comprehensive judicial comment on the act's operation. Because the act provides for complaints to the ombudsman as the primary course of redress for requesters dissatisfied with decisions, the courts have dealt with relatively few cases.
For further information on this topic please contact Chris Browne or Kate Morrison at Wilson Harle by telephone (+64 9 915 5700) or email ([email protected] or [email protected]). The Wilson Harle website can be accessed at www.wilsonharle.com.
Endnotes
(1) The eight categories broadly reflected 10 categories of documents recommended for release by the EU ombudsman after an inquiry into the transparency of negotiations between the European Union and the United States in relation to the Transatlantic Trade and Investment Partnership.
(2) Section 6 of the Official Information Act.
(3) Section 9 of the Official Information Act.
(4) Provided for under Section 18 of the Official Information Act.
(5) Section 9(1) of the Official Information Act.
(6) The Ministry of Foreign Affairs and Trade estimated that approximately 30,000 documents might be relevant to the information request.
(7) Section 6(b)(i) of the Official Information Act.
(8) Freedom of Information Act (Cth) 1982, Sections 33(b) and 4(10); Freedom of Information Act (UK) 2000, Section 27(3).
(9) Section 15(1) of the Official Information Act.
(10) Section 9(2)(d) of the Official Information Act.
(11) Section 9(2)(j) of the Official Information Act.
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