A quick note to the NZ Police. You don't own all the information on your computers or in your files - and if academics want to see it, you have to let them do so without imposing conditions. Most of the time, anyway!

For those not caught up on the background story, Jarrod Gilbert is an academic sociologist working at Canterbury University. In that capacity, he apparently asked the police for some "basic and uncontroversial police data" relating to assaults and where they occur as part of his "research on alcohol and violence for another government agency".

Allegedly - for this is all told from the perspective of Dr Gilbert - the Police refused to provide him with this information as they deem him to be a security risk due to his past association with "Gangs" (who were the subject of his award winning, book length research). That's pretty silly. Furthermore, it turns out that before the Police will provide academics with such data, they require them to sign a "research agreement" that gives the Police (amongst other things) the right to review and seek amendments to any research conclusions that they think are wrong. 

I don't have much to say about Dr Gilbert's particular case, because I think it's pretty likely that the Police will do a rapid u-turn and decide that actually he is permitted to access the data he wants. Being the second item on RNZ's Morning Report has that sort of effect.

However, the "research agreement" aspect of this story has a bit more to it. Because it looks to me like it is unlawful, at least as the Police appear to be applying it.

According to the document that Dr Gilbert has made available, the agreement is required before an academic will be given access to "Privileged NZ Police Information". That might sound OK, until you read in the document that such "privileged" information is:

information stored within any NZ Police database, file or documentation, not otherwise publicly available ...

Which, if Dr Gilbert's account is accurate, the Police apparently are extending to mean stuff like "simple data on where incidents such as assaults happen". And that's a problem. Because the data that Dr Gilbert wants is "official information" as per the Official Information Act 1982, which anyone has the right to request from the Police.

Then, under the Official Information Act, section 5:

The question whether any official information is to be made available, where that question arises under this Act, shall be determined, except where this Act otherwise expressly requires, in accordance with the purposes of this Act and the principle that the information shall be made available unless there is good reason for withholding it.

So, the basic legal rule is that the Police must give Dr Gilbert (or anyone else who asks) any data that they have about where assaults are taking place (or similar), unless there is "good reason" not to do so. And such "good reasons" are then exhaustively set out in the Official Information Act, sections 6 and 9 in particular. 

Going out on a limb a little bit (but only a little bit), I'm certain that if the data sought is innocuous as Dr Gilbert says it is, there are no grounds under the Act for withholding the information. The only possible applicable reason might be under s.18(f):

that the information requested cannot be made available without substantial collation or research

But there's two reasons to think that this can't be the case in regards Dr Gilbert's request. First of all, as Jane Kelsey's recent High Court victory demonstrates, this reason for refusal first must be preceded by attempts to find a way to allow for the information release. And second, if the Police are prepared to make the data available after a researcher signs the research agreement, this shows that the amount of collation and research actually isn't that "substantial". Because if it was "too hard" before, then why does entering into the agreement suddenly make it not "too hard"?

The consequence is that demanding a researcher first enter into a "research agreement" before being given information like Dr Gilbert allegedly sought is inconsistent with the Police's legal obligations under the Official Information Act, and thus unlawful. Note also that it doesn't matter whether Dr Gilbert mentioned the Official Information Act when he first asked the Police for the data. The Act's provisions apply irrespective of how he framed his request.

None of which is to say that the Police shouldn't be able to require researchers to enter into agreements before providing certain kinds of information. Let's say I approach the Police, seeking to research their use of the "Mr Big" technique to gather evidence against suspects. I can see why the Police might want to exert control over how I use some forms of information they might provide to me on that topic, given that disclosing it has the potential to "prejudice the maintenance of the law, including the prevention, investigation, and detection of offences" (a conclusive reason for refusing release of information under s.6(c) of the Official Information Act). That's understandable.

But, at least as described in Dr Gilbert's account, the Police have gone beyond addressing such concerns to set up a catch-all policy for any and all academic requests for information not already in the public domain. They seem to be treating that information as "theirs" to do with as they want and only sharing it on their terms. Which is not what the law says!

Instead, that information is the public's (and thus a researcher's) to know, unless and until there is a reason under the Official Information Act not to disclose it. And if there is no such reason, then there is no basis for demanding a "research agreement" be entered into before making such disclosure. End of story.

Comments (7)

by Ross on November 25, 2015
Ross

What if Gilbert directed any requests for information to the Police Minister? I couldn't imagine the Minister giving him this treatment.

I also imagine the Ombudsmen's Office might wish to speak to police about this matter, were he to complain.

by Simon Connell on November 25, 2015
Simon Connell

From the "research contract":

11.1 NZ Police may terminate this Agreement immediately by notice in writing if the Principal Researcher or any other Researcher:

(a) engages in conduct which, in the opinion of the NZ Police, is or may be likely to injure the reputation or interests of NZ Police or brings or potentially brings NZ Police into disrepute; or

(b) commits any breach of this Agreement.

11.2 In addition to termination, if the Principal Researcher or any other Researcher breaches this Agreement, NZ Police may also at their sole discretion:

...

(d) blacklist the Principal Researcher, or any other Researcher or any organization connected with the Project, from access to any further NZ Police resources for research purposes.

11.3 If this Agreement is terminated, NZ Police are not obliged to provide any support to The Project or any further information to the Principal Researcher or to any other Researcher.

by Richard on November 25, 2015
Richard

@Andrew "But there's two reasons to think that this can't be the case in regards Dr Gilbert's request."

Also, as the information is purportedly about the geographic/chronological distribution of assaults or similar then it seems that police should already be collating and analysing this sort of data simply to internally manage staff levels.

by Andrew Geddis on November 25, 2015
Andrew Geddis

@Richard.

Three reasons!

by Tim Watkin on November 28, 2015
Tim Watkin

Ross, if the request was to a minister, it'd probably just get delayed and delayed and lost and delayed...

by Tim Watkin on November 28, 2015
Tim Watkin

You may have seen today: The police have backed down and committed to changing the policy used to "blacklist" (who uses language like that in a contract?!) Gilbert and admitted the policy is not fit for purpose. View the short grab from the interview with Mike Bush.

by Ross on November 29, 2015
Ross

Ross, if the request was to a minister, it'd probably just get delayed and delayed and lost and delayed...

You're probably right!

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