Jane Kelsey's court victory over the evil MFAT/Tim Groser empire is probably too little, too late for her campaign against the TPPA. But it sends some important messages to a range of public actors in New Zealand's governing arrangements.

As mentioned in the media yesterday, Jane Kelsey and a rag tag fugitive fleet of civil society groups were (mostly) successful in their court challenge to MFAT/Tim Groser's refusal to release any information under the Official Information Act (OIA) about the TPPA negotiations.

While I was dithering around aimlessly, Idiot Savant over at No Right Turn has posted a good summary of the legal issues/meaning of the decision. I won't reinvent the wheel by giving a full account of what Justice Collins says here - go read I/S's first, if that's what you're after. I'll instead just cherry-pick the main take-away points and then give some thoughts on the wider implications of the case. 

First, Justice Collins didn't expressly say that MFAT/Tim Groser should have released any particular information to Jane Kelsey (although he does make it pretty clear there is some "anodyne" information that there is no good reason to withold from her). Instead, he found that the process MFAT/Tim Groser followed in deciding not to release any information at all about the TPP negotiations was flawed.

Second, the major flaw in MFAT's/Tim Groser's process was their adoption of a blanket approach to deciding whether or not to release any information. Reverse engineering the judgment a bit, it looks like MFAT/Tim Groser took this approach to the issue:

  • Jane Kelsey's request was for lots and lots of material, which it would be a pain in the backside to have to go through;
  • MFAT/Tim Groser knew that they would have valid grounds under the OIA to refuse to release anything "interesting" contained in that material;
  • Anything left over after they redacted the "interesting" stuff would be useless for Jane Kelsey's purposes;
  • Therefore, rather than waste time and effort going through all the material to weed out the "interesting" stuff, they instead decided not to release anything at all.

The problem with this approach is that it runs completely counter to the OIA's basic purpose - to make any and all information available unless one of the specific reasons in the legislation applies. For the information holder to decide that it won't provide information without actually looking at it and considering if there is a valid statutory reason for refusing its release inverts the way the OIA is supposed to work. 

Furthermore, the OIA has provisions within it to deal with requests for large amounts of information. If it would take a long time to go through the material and decide on its release, the agency holding the information can extend the time limits contained in the OIA. And if it would be very costly to comply with the request, then a "reasonable" charge can be levied for doing so.

However, MFAT/Tim Groser didn't give any consideration to these options before issuing their blanket refusal. Which means that they didn't comply with what the legislation requires, making the decision unlawful. And so Justice Collins told them to go away and make the decision again, this time after doing what the OIA says.

The practical consequence of this decision for Jane Kelsey, et al may not be that great. After all, the TPPA now looks to be a done deal (barring the US Senate rejecting it). There will be further delay as MFAT/Tim Groser go through the documentation and decide what can/cannot be released. And MFAT/Tim Groser may come back to Jane Kelsey with a reasonably substantial charge for doing so.

Furthermore, the OIA does contain a number of reasons for saying "no" to the release of specific information. One of these is any commitment that the NZ Government has given to other Governments that we will keep matters confidential -- a ground that Justice Collins specifically upholds in his judgment. And given the (apparently) quite extensive secrecy commitments NZ agreed to as part of the TPPA negotiations, there will be lots of stuff that falls under this reason for refusal.

Nevertheless, this case is important for the judicial message it sends to (at least) three audiences.

The first is MFAT/Tim Grosser. It is true that much of the work that they do is somewhat sensitive and involves obligations of confidence owed to other nations. But that fact does not create a sort of generic "MFAT exception" to the Official Information Act. They can't rely on the provisions of the Act that allow them to withold some (or even lots) of information about their activities in order to refuse to release any information about what they are doing.

Justice Collins also had something to say about MFAT/Tim Groser's ability to refuse to disclose information that may "prejudice ... the international relations of the Government of New Zealand", or "damage seriously the economy of New Zealand by disclosing prematurely decisions to change or continue government economic or financial policies relating to ... the entering into of overseas trade agreements". These exemptions do not give carte blanche to refuse to release details of MFAT's operations - they are legal tests that must be applied correctly and precisely.

The second audience is the wider public service. Justice Collins' judgment goes out of its way to remind the reader (including the lawyers who work in the public sector) that the Official Information Act creates legal obligations that really, really matter in our constitutional environment.

Not only does he return to the OIA's origins in the 1980 Report of the Danks Committee, but he emphasises (at para [109]):

I also appreciate that MFAT believes that complying with Professor Kelsey’s request in the way envisaged by the Act would have involved substantial effort. That, however, is the price Parliament contemplated when it passed the Act and is a challenge regularly encountered and addressed by public servants who are charged with ensuring requests for official information are dealt with in accordance with the Act. The genuine administrative challenges associated with complying with the Act in this case did not entitle the Minister or MFAT to circumvent their duties under the Act.

Justice Collins then justifies his order that MFAT/Tim Groser reconsider the requested material and decide (properly this time) whether to release the information within it with the words (at para [156]): "the Act plays a significant role in New Zealand’s constitutional and democratic arrangements. It is essential the Act’s meaning and purpose is fully honoured by those required to consider the release of official information."

So there's a timely reminder to all in the public sector - the OIA isn't just a guideline, an aspirational target, or a "nice to have" if circumstances permit. It's an Act of Parliament that sets out legally binding duties that cannot be ignored because they are inconvenient and which are central to the entire exercise of national self-government. 

The third audience for this judgment is the Ombudsman's office, and the Chief Ombudsman Beverley Wakem in particular. Because it is fair to say that she does not come out of the judgment all that well. Not only does Justice Collins find that she apparently misunderstands how a quite key legal test under the OIA is meant to apply (at para. [139]), but her failure to pick up MFAT/Tim Groser's ignoring of proper process is quite concerning.

After all, the Ombudsman is meant to be the primary check on those who hold official information failing to abide by their legal obligations. If that office is not noticing those failures - if it is basically waving through decisions that fail to comply with the OIA - then what is a citizen to do? The Courts are always there in theory ... but in the real world this is a completely unrealistic avenue of redress because of the time and expense involved.

That is, I think anyway, the message Justice Collins is imparting. The question now is, will it be listened to? John Key is quoted in this Radio NZ story as saying:

Actually [Mr Groser's] decision not to release was supported by the [Chief] Ombudsman.

We now need to have the officials go and review that and determine what the next steps are, whether the government wants to appeal that decision and if they don't then there will obviously have to be a change in behaviour going forward.

I'm guessing he hasn't actually read the judgment, because I can't for the life of me see what the Crown might want to appeal out of it. The only "change in behaviour" it really requires is for agencies not to decide in advance, without looking at it, that all requested information can be refused under the OIA. If this really is happening on a large scale then ... that's a problem that needs fixed, not a practice that needs to be defended.

Update: The various documents from Jane Kelsey's request and the Minister's response, to the Chief Ombudsman's report (not posted online), the statement of claim and affidavit and the statement of defence are all online here.

Comments (10)

by Katharine Moody on October 14, 2015
Katharine Moody

Wakem may well have reviewed all the information and determined that all the information should be withheld - it's a possibility? (I haven't read her report).

But what I don't understand, if that is the case, is that other jurisdictions (Japan for example) release some information;

http://www.japanbullet.com/news/japan-govt-releases-some-information-on-...

So surely, some information with respect to the NZ files might also have been able to be released.

But the other thing that bothers me about the OIA in general is that as you point out, the Act sets out "legally binding duties" but (I assume) there are no penalties for failing to adhere to those obligations/duties?  Would not a system of fines be appropriate?  And the absence or level of such fines could then be written into the performance agreements of CEOs/public servants accordingly. The point being, obviously there is no proper deterrent to under-performing and/or purposefully acting illegally in respect of carrying out these duties.

I am still waiting for B Wakem's investigation of this blatent case of Custom's misuse of the Act, the news of which broke during the last election period;

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11354994

by Katharine Moody on October 14, 2015
Katharine Moody

Here's the scope of that Ombudsman's review (which I assume, has not yet been released);

http://www.ombudsman.parliament.nz/system/paperclip/document_files/docum...

 

 

 

by Murray Grimwood on October 14, 2015
Murray Grimwood

Good post, and good comments. Thx.

But this is less and less a 'between Governments' issue, and more of a 'look for the puppeteers controlling them' one.

End-game stuff.

by Andrew Geddis on October 14, 2015
Andrew Geddis

Wakem may well have reviewed all the information and determined that all the information should be withheld - it's a possibility?

No. She looked at 21 documents provided to her by MFAT/Groser and based on these agreed that it was OK for them to refuse to release anything at all contained in the other 29,979 documents that (allegedly) fell within the ambit of Jane Kelsey's OIA request.

by Katharine Moody on October 14, 2015
Katharine Moody

No. She looked at 21 documents provided to her by MFAT/Groser and based on these agreed that it was OK for them to refuse to release anything at all contained in the other 29,979 documents that (allegedly) fell within the ambit of Jane Kelsey's OIA request.

Oh, okay, that doesn't bode well. Seems odd that she would accept that method of discovery in terms of the investigation as adequate. I'd be interested in the actual wording of Jane Kelsey's request. If written that 'wide' surely the best response is to go back to the requester - point out the # of documents covered in the request, the estimate of cost associated with the review/release exercise, and give the requester the opportunity to be more specific to reduce those costs. But then perhaps the request was written in such a way as to elicit the blanket refusal - and hence go on to pursue the follow up / legal action - the ultimate prize being legal precedent?

by Andrew Geddis on October 14, 2015
Andrew Geddis

@Katharine,

What you say is pretty much what Collins J says in his judgment. Except it isn't the "best response", it is the legally required response.

 

by Katharine Moody on October 14, 2015
Katharine Moody

But this is less and less a 'between Governments' issue, and more of a 'look for the puppeteers controlling them' one.

By "this" if you mean FTAs, yes, especially for the larger economies where all (and more) of the funding of the diplomatic/negotiating effort is fully paid by the puppeteers (as opposed to the government). But not so here - unfortunately the expense associated with attending/producing/reading etc. those 29,979 documents is pretty much all to the public purse. Just think of the number of kids lunches we could have produced instead.

by Katharine Moody on October 14, 2015
Katharine Moody

it is the legally required response.

Well yes, I worked in CG - and as a third tier manager (and for all my senior reports and indeed for virtually all of my staff), I/we understood this very well. Attitudes to transparency have been seriously eroded since my time - that is a certainty.

by Donald Ellis on October 15, 2015
Donald Ellis

Andrew, I don't know whether you over-simplified the judgement (for the purposes of enhancing readability of course) when you said

  • Anything left over after they redacted the "interesting" stuff would be useless for Jane Kelsey's purposes;

If accurate this raises another significant aspect of how OIA/LGOIMA requests are to be handled. The public agency cannot, in any way, consider the purposes to which the information might be put when considering what information to release in response to a formal request. This principle is not explicitly set out in the legislation but has been clearly spelled out for many years in the Office of the Ombudsman's guidelines. This principle should prevent agencies from making judgments about applicants and deciding who is worthy of access to the secrets and who isn't.

 

So even if the redacted documents read something like "The....but....and..." MFAT still had to release them to the applicant.

 

 

by Andrew Geddis on October 15, 2015
Andrew Geddis

@Donald,

Yes - and that is exactly what Justice Collins has told MFAT/Tim Grosser!

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