New Zealand Law Commission
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345 ARECOMMENDATION made by an Ombudsman relating to the release of general official information186 becomes binding on the agency on the 21st working day after it is made, unless the Governor-General by Order in Council otherwise directs: Official Information Act s 32(1)(a).187 The Law Commission’s terms of reference ask us to consider the appropriateness of the Order in Council procedure. Compliance with this procedure allows the recommendations of the Ombudsmen to be lawfully overridden.
346 There have in recent years been occasional instances in which agencies have ignored an Ombudsman’s recommendations without obtaining a veto under s 32(1)(a). The absence of a clear statutory regime for enforcement of the public duty upon an agency to comply with an Ombudsman’s recommendation, once the time for exercising the veto power has expired, is a matter we also address in this chapter.
347 The method of resolving disputes about access to official information was one of the principal areas of controversy when the Official Information Bill was being prepared in 1978–1982, and again in the review undertaken between 1984 and 1987. Until 1987, when the Official Information Amendment Act replaced the former s 32 with the current ss 32 and 32A–32C, the power of veto was conferred on the responsible Minister, who may actually have made the earlier decision on the request or been otherwise have involved in it. The Minister’s reasons for the veto were not limited to those used to decline the request at the earlier stage.
348 The veto power is now exercisable by the whole Cabinet. Under s 32A(2) the Order in Council is to set out the reasons for which it is made and the grounds in support of the reasons. The reasons must be those advanced by the agency and reviewed by the Ombudsman: s 32A(3).
349 Section 32B(1) expressly provides for review of an Order in Council in the High Court. Section 32B(2) sets out the grounds for review in a broad way (that the Order in Council was beyond the power conferred by ss 32 and 32A, or was otherwise wrong in law). The court may make an order in those terms: s 32B(3)(b). It is also given an express power to make an order confirming that the Order in Council was validly made.188 The applicant’s costs are to be paid by the Crown on a solicitor and client basis, even if the application for review was unsuccessful, unless the court finds that the review was not reasonably or properly brought: s 32B(4).
350 The questions which have been raised with the Law Commission in respect of the veto provisions are:
351 These questions do not challenge the basic system of resolving complaints established in 1982 and confirmed (with important modifications) in 1987. The system involves a balance between the careful process of independent, reasoned scrutiny of the original decisions by an officer of Parliament, and a (rarely exercised) power conferred on the highest level of government to protect the executive’s perceptions of an important national interest.
352 A government veto has no role in respect of the Ombudsman’s opinion about the legal obligation to release personal information. In this respect, the Act treats personal information differently from general official information.189 Under s 24(1) there is a right of access to personal information, which can be enforced in the courts (see chapter 8). The Ombudsmen can indicate their opinion on whether, in a particular case, an agency is legally bound to release personal information: s 35(1). A court might or might not agree with that opinion in proceedings, but the proceedings are, in essence, between the requester and the agency.
353 In the period from 1 July 1983 to 1 April 1987 (when the 1987 amendments came into force) the Ombudsmen made 92 recommendations and individual Ministers exercised 14 vetoes.190 Since 1 April 1987 the Ombudsmen have made over 100 recommendations under the Official Information Act, but the veto has never been used.191 No doubt a principal reason for that difference is changing attitudes to the legislation as the experience of its operation develops. Another factor may be the possible public reaction against a Cabinet veto. The likelihood of an order against the Crown for the costs of any resulting litigation, and the short time period within which to prepare the Order in Council, have also been mentioned to us as weighing against the use of the veto.
354 None of the vetoes have in fact been the subject of judicial proceedings although decisions made and issues arising under the Official Information Act and Local Government Official Information and Meetings Act have come before the courts in a variety of other ways. Official information issues have been raised by:
355 One consequence of the limited amount of litigation is a comparative lack of judicial interpretation of the Act and a consequent lack of guidance from the courts.
356 We now turn to the two questions raised in para 350. The reasons for the 1987 change from an individual Ministerial veto to a collective Cabinet veto included the following:
Any decision not to comply with the Ombudsman’s recommendation is a substantial and serious one. The reasons for the action, in terms, for example, of the legal issues and the judgments of possible damage to national security interests or to the deliberative processes of government require careful assessment. That assessment and an element of detachment and neutrality would be enhanced by the involvement of Ministers other than the Minister immediately involved. The responsibility of the whole Ministry for the operation of the Act would be increased.195
357 A further element, no doubt, was the basic decision to maintain the Ombudsmen as the principal agency of review. The arguments for a Cabinet decision are now, if anything, even stronger than in 1987. The dramatic change in the use of the veto power is one factor: the removal of the power from the hands of the particular responsible Minister has obviously been salutary. A Cabinet veto power is consistent with the growing emphasis, in developments since the enactment of the State Sector Act 1988, on the government’s collective interest.196 In the MMP era, in which mixed-party Cabinets are likely to be the norm, it may be particularly appropriate that a decision to override the recommendation of an independent officer of Parliament be taken collectively, rather than by an individual Minister whose approach to the veto may lack the support of his or her Cabinet colleagues.
358 The tightness of the timeframe in which to make an Order in Council (as compared with a Ministerial direction) is not significant. An Ombudsman’s recommendation does not appear suddenly, without warning. It will have been preceded by discussions between the Ombudsman and the relevant Minister and officials. If the timing is a problem, it would be better addressed by extending the period in which the Order in Council may be made, than by removing that procedure altogether.
359 Accordingly, the Law Commission does not recommend any substantive change to the provisions of ss 32 and 32A relating to the power of the Governor-General in Council to direct non-compliance with an Ombudsman’s recommendation.
360 As mentioned at para 353, the special regime by which the Crown bears the costs of a challenge to the veto in the courts, may be a deterrent to a government contemplating a veto.
361 The justification for the special costs regime was that, but for the veto, the information would have been released in accordance with the independent opinion of the Ombudsmen reached following a fair procedure, in which the agency had a full opportunity to present its case. Moreover, there was an awareness of the limits on the role that the Ombudsmen, as officers of Parliament, could play in review or enforcement proceedings brought in respect of the conclusion they had reached and the processes followed. Accordingly, the Act aimed to make a challenge to the veto power accessible to the party most affected – the requester.
362 The Law Commission does not recommend any change to the cost provisions in s 32B(4) of the Act.
363 The reasons for the special costs regime (set out in para 361) are still valid today. But the provision of funding where the veto has been exercised may be contrasted with the absence of any specific provision in the Act for enforcement of the public duty to comply with an Ombudsman’s recommendation when the veto has not been used. We now turn to this matter.
364 Failure to comply with the public duty under s 32(1) to observe an Ombudsman’s recommendation, where the power of veto has not been used, is as a rule unjustifiable. The practice of virtually complete compliance with the Ombudsmen’s recommendations supports that. Such a failure could be justified only if the agency promptly commenced judicial review proceedings in respect of the recommendation. Proceedings of this nature would be highly unlikely in the case of a Minister or department: their proper remedy in almost all cases would be by way of veto.197 A treble failure by an agency (first, to obtain a veto; secondly, to get the Ombudsman’s recommendation set aside by the court; and finally, to comply with the public duty to observe the recommendation) has occurred only very rarely.
365 The Ombudsmen’s 1994 report notes the first instance in which a recommendation to release information was ignored. In every previous case the agency concerned had sought judicial review of the decision or obtained the necessary veto.198 The case concerned a failure by a school principal to release information requested by a group of parents. The Ombudsmen invited the Solicitor-General to enforce the public duty imposed on the principal by s 32 of the Act: the proceedings were eventually settled after the principal agreed to release the information.199
366 In 1995 the Ombudsmen also reported that three Crown Health Enterprises (CHEs) had ignored recommendations to release certain salary information. The Solicitor-General issued proceedings to enforce the public duty: all three CHEs later released the information. At the time of writing, however, a further proceeding was being pursued by the Solicitor-General on behalf of the Ombudsmen against a CHE. The Ombudsmen’s annual reports indicate that the rare instances of non-compliance with recommendations are increasing.
367 There have been two reported cases in which agencies have sought judicial review of an Ombudsman’s recommendation to release information. In Commissioner of Police v Ombudsman  1 NZLR 578 (HC) the police sought judicial review of the Chief Ombudsman’s recommendation that briefs of evidence police proposed to call in a prosecution be disclosed to the defendant’s solicitors. The police were successful in the High Court but that decision was overturned on appeal:  1 NZLR 385 (CA).
368 In the second case, Television New Zealand (TVNZ) sought judicial review of an Ombudsman’s recommendation to release official information connected with the making of a television documentary on smoking to the Tobacco Institute of New Zealand Ltd: Television New Zealand Ltd v Ombudsman  1 NZLR 106. The Institute simultaneously sought an order for release of the documents which the Ombudsmen found were protected from disclosure. TVNZ’s application for review was dismissed by Heron J who noted:
An applicant for information may seek this Court’s assistance in having that public duty enforced, clearly an entitlement of a successful applicant, but may then be met by way of defensive application for review. Each case will depend on its own facts and no doubt the Ombudsman will be disturbed if the recommendations are not acted upon and are delayed by subsequent proceedings in this Court. (122–123)
369 Amicus curiæ in that case pointed out that an organisation unhappy with an Ombudsman’s recommendation might either ignore the recommendation on the assumption the requester will not consider the information worth the expense of a High Court review, or seek judicial review of the recommendation itself. Heron J said these approaches amounted to “a considerable impediment to the proper implementation of a most important piece of legislation” (122–123).
370 One issue is whether the Act should make it clear that any judicial review proceedings by an agency against a decision of the Ombudsman must be brought within 20 working days, as the Ombudsmen argued in the Television New Zealand case in an application to strike out part of the claim before trial. McGechan J dismissed the application, stating that the Act did not prescribe a time limit for commencing review proceedings, and that wording “a great deal more specific [than in s 32] would be necessary before such a draconian regime could be assumed” (unreported, HC, Wellington, 19 February 1991, CP 966/60).
371 The right to challenge the validity of public decisions in judicial review proceedings is an important one. The New Zealand Bill of Rights Act 1990 s 27(2) recognises that.200 But notwithstanding general judicial disapproval of privative clauses, the courts have held that statutory provisions which only limit the time within which review must be sought (rather than prevent review altogether), are effective.201 But the courts, as McGechan J indicated, will require a clear legislative statement of this intention.
372 We recommend that a further subsection be added to s 32 to provide that any application by a Minister, department or organisation under s 4(1) of the Judicature Amendment Act 1972 for review of an Ombudsman’s recommendation, or to otherwise challenge, quash or call into question that recommendation in any court, must be made within 20 working days of the recommendation being made.
373 This requirement would focus an agency’s attention on whether to seek a veto under s 32202 or to challenge the decision in the courts, for example, if the recommendation raises an important matter of principle for the agency. Suggestions that 20 working days is a short period in which to consider legal proceedings ignores the protracted process of the Ombudsmen’s investigations in which the option of proceedings should at least have been envisaged.
374 A requester is entitled to commence judicial review proceedings to compel an agency to perform its public duty under s 32 of observing an Ombudsman’s recommendation.203 As indicated by Heron J in the Television New Zealand case, the court can, where appropriate, accord urgency to a requester’s application for review, and arrange an immediate hearing. But the court can do no more (122–123): the 20 working–day period must expire before the agency is under an enforceable public duty to comply with the recommendation.
375 Why should the cost of securing the information fall on the requester, who would usually have recovered the costs of bringing judicial review proceedings if the agency had managed to secure a Cabinet veto of the Ombudsman’s recommendations? The Law Commission sees no justification for this discrepancy. Consistency with s 32B suggests that a requester who seeks to enforce the public duty should be reimbursed in the same way as if the proceedings were to review the Order in Council. The reimbursement would perhaps more appropriately come from the agency in breach of the public duty, an option supported by the Ombudsmen in their correspondence with us. But the Law Commission sees the more important question as “who should enforce the public duty”.
376 Heron J in the Television New Zealand case did not express an opinion on “the degree to which the organisation or tribunal whose decision is in question should participate in the subsequent proceedings”:  1 NZLR 106. The Ombudsmen have consistently taken the view that it is inappropriate for them to defend the merits of individual recommendations. This, they have argued, might detract from their ability to be perceived as impartial by both requesters of information and agencies subject to the Act. Impartiality in turn is essential to the credibility of the office, and has contributed to the widespread acceptance of the Ombudsmen’s recommendations.
377 In Goodman Fielder Ltd v Commerce Commission  2 NZLR 10 (CA) Cooke P noted that
observations . . . about the well-established principle that judicial bodies should not strive to enter the fray in a way which might appear to favour the interests of one of the parties [do not apply] . . . to a case where considerations of public interest and the effective administration of an Act arise, especially if there is no other party to put those considerations adequately before the appellate Court. In such a case it is right that the Commission should help the appellate Court to whatever extent the Commission and that Court find consistent with the Commission’s public responsibility.” (20)
378 The same argument could be asserted in favour of the Ombudsmen enforcing the public duty. But the argument does not fully address the Ombudsmen’s concerns as expressed in para 376. Unlike the Ombudsmen, the Commerce Commission, which was the body whose role was at issue in the Goodman Fielder case, does not rely principally on the goodwill of parties as the basis for its recommendations being accepted.
379 Moreover, can it really be said that there is, in Cooke P’s words, “no other party to put those considerations adequately before the appellate court”? We have already mentioned the requester as a possible party. Traditionally, it has been the exclusive role of the Attorney-General to enforce a public duty. Thus, in Gouriet v Union of Post Office Workers  AC 435, 481 Lord Wilberforce stated that it was constitutional principle, rather than procedure, which gave the Attorney-General “the exclusive right . . . to represent the public interest – even where individuals might be interested in a larger view of the matter . . .”.204
380 The Attorney-General performs the constitutional role of overseeing the administration of justice in New Zealand, including supervision of all Crown legal business (criminal and civil), the authorisation of relator proceedings in civil litigation, and the exercise of the Crown’s role as parens patriæ in securing the enforcement of charitable trusts.
381 The rule of law requires that no public duty should go unenforced, otherwise those subject to the duty may be and be seen to be above the law. Failure to secure enforcement will be seen as inconsistent or even hypocritical. The public duty having been established, it should, in the Law Commission’s view, be enforced by a public officer. In practice, the Solicitor-General has been invited by the Ombudsmen to enforce the public duty, as noted in para 365.
382 We consider the Solicitor-General should enforce the public duty to comply with an Ombudsman’s recommendations on his or her own initiative, in accordance with constitutional practice. We recognise, however, that this will still usually require the Ombudsmen to draw a breach of the public duty to the attention of the Solicitor-General.