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310 A PERSON WHOSE REQUEST for information has been refused, or who is aggrieved in some other way168 may complain against the decision to the Ombudsmen. In general, the provisions of the Ombudsmen Act 1975 relating to investigations apply to the complaint: s 29(1). In this chapter, we consider what obligations a decision-maker should have with respect to an Ombudsman’s request for information during the course of such an investigation.
311 Section 28(3) of the Official Information Act requires that a complaint to the Ombudsmen in respect of official information (but not personal information)169 be in writing. Before 1991, the Ombudsmen Act required all complaints under that Act to be in writing; this requirement was relaxed to allow oral complaints which are then to be put in writing as soon as practicable: s 16(1) and (1A).170
312 In our view all official information complaints, not just those relating to personal information, should be able to be made orally, to cater for exceptional circumstances where it is not immediately possible to put a complaint in writing. This could be achieved by repealing s 28(3), allowing s 16 of the Ombudsmen Act to apply instead.
313 Sections 17 to 21 of the Ombudsmen Act create the framework for the investigation of complaints. The Ombudsmen are bound by obligations of procedural fairness:
314 The Ombudsmen are to undertake the investigation in private and to maintain secrecy: Ombudsmen Act ss 18(2) and 21. Those obligations are matched by important powers and corresponding duties upon agencies. The Ombudsmen may hear or obtain information from such persons, and undertake such inquiries, as they think fit: ss 18(3), 19(1)–(2). They can require any person to provide information relevant to the investigation, even in the face of a statutory obligation of secrecy or non-disclosure: s 19(3), (4) and (7).172
315 In addition, the Ombudsmen are not, in general, subject to the law of public interest immunity: s 20(2). This proposition is reinforced in the official information context by s 11(1) of the Official Information Act, which states that the law of public interest immunity shall not apply in respect of any investigation by an Ombudsman or any proceedings for judicial review of a decision under the Act. Freedom of access by the Ombudsmen to government files was a central feature of the original scheme when it was set up in 1962.173
316 The powers of investigation in the Ombudsmen Act are, however, subject to limits in s 20 of that Act. The provision excluding the application to the Ombudsmen of the law of public interest immunity (s 20(2)) is subject to the Attorney-General’s power under s 20(1) to certify that the disclosure of information to the Ombudsmen might:
317 The wording of s 20 dates from the original Ombudsman legislation of 1962. The Official Information Act, passed 20 years later, does not give special protection to Cabinet, or more particularly to Cabinet papers as a class of documents. Section 9(2)(f)–(g) of that Act instead protects, in more general terms, critical parts of the internal processes of government (see chapter 6). Moreover, under the Official Information Act it is for an independent officer outside government – the Ombudsman – to judge prejudice to the protected interests, at least in the first instance. The courts now also make judgments on public interest immunity matters in the areas set out in s 20. The original Ombudsman legislation was enacted only a few weeks after the Court of Appeal had first pronounced that the courts would review a Ministerial claim to withhold evidence on public interest grounds,175 and many years before a court was to review the decisions of Cabinet.176
318 Notwithstanding these considerations, we do not, on balance, favour repeal of s 20(1). This provision must be considered alongside ss 31 and 32 of the Official Information Act, both of which allow the executive to prevail over the Ombudsmen to prevent the release of official information. Section 20(1) allows the executive to intervene before the Ombudsmen have had the opportunity to consider the information in question. Although the power in s 20(1) has not been used in 35 years, it could in exceptional circumstances be appropriate to exercise that power rather than rely on ss 31 and 32 of the Official Information Act.
319 But in the event of its use, it should be clear where responsibility (and political accountability) lies for the decision to prevent access to information by an independent officer of Parliament. Under ss 31(a) and 32 of the Official Information Act, responsibility and accountability are clearly with the Prime Minister and Cabinet respectively. New Zealand’s constitutional structure is strengthened by the presence of two Law Officers: the Attorney-General, who by convention is a Cabinet Minister, and a non-political Solicitor-General. While the Solicitor-General may exercise any power or function conferred on the Attorney-General,177 we consider that the issue of a certificate under s 20 is properly a political act for which the Attorney-General should be accountable to Parliament. Accordingly, s 20(1) should be amended to specify that only the Attorney-General may exercise the power.
320 The Law Commission recommends that s 20 of the Ombudsmen Act should be amended to specify that the Attorney-General personally may exercise the power to prevent disclosure of information to the Ombudsmen.
321 The other provision which has placed an important limit on the Ombudsmen’s access to relevant information is s 19(5) of the Ombudsmen Act. Those required to provide information under s 19
have the same privileges in relation to the giving of information, the answering of questions, and the production of documents and papers and things as witnesses have in any Court.
322 In addition to public interest immunity, those privileges include legal professional privilege, marital privilege, religious privilege, medical privilege, the privilege against self-incrimination, the general protection of confidentiality conferred by s 35 of the Evidence Amendment Act 1980 (No 2), and “without prejudice” communications. The interests protected by the general law of privilege are given appropriate protection from disclosure to the requester (and therefore potentially to anyone at all) by the good reasons in the Act.178
323 The Law Commission is fully considering these privileges in its project on evidence. Legal professional privilege is the privilege most likely to be invoked by agencies in responding to the requirements of the Ombudsmen. The “newspaper rule” has also been specifically mentioned to us: it may protect journalists’ sources of information in limited contexts.179 Section 9(2)(h) – subject to countervailing public interest – and s 27(1)(g) of the Official Information Act allow requests to be refused on grounds of legal professional privilege. The general confidentiality reason for withholding in s 9(2)(ba) of the Act might also protect journalists’ sources (see, for example, (1985) 6 OCN 89–95).
324 But what is the justification for those grounds being used to prevent the Ombudsmen having access to the information in the course of their handling of complaints? How are they to assess a claim about access to a document which has been withheld from the requester on the grounds of, for example, legal professional privilege, if they cannot see the document themselves? How are they to balance the public interest in disclosure under s 9(1)? What in any event is the logic of an Ombudsman being able to override an individual’s statutory duty not to disclose,180 while not being able to override a privilege which by its very nature can be waived by the body or individual in question? Given that public interest immunity (the evidentiary privilege of most significance to the government) is substantially limited by the Ombudsmen Act, should not the other evidential privileges also be limited?
325 The Ombudsmen commented as follows in their submission to the Law Commission:
In particular, the privilege could be invoked not merely with respect to legal advice given to a department or organisation in connection with a current investigation, which in itself would not be unreasonable, but also to all other legal advice and communications. This could, in fact, be used to frustrate the purpose of an investigation which is to form an opinion on matters after having considered all relevant factors. Clearly, if an Ombudsman can be refused access to material on the grounds of legal professional privilege, this would inhibit the ability to discharge the functions of the Office.
Their approach is to ask agencies to provide the information in question and, if the privilege is raised, to ask that it be waived. In making that request they refer both to their need to see the material if they are to make the assessment required by the Official Information Act, and to their secrecy obligations under s 21 of the Ombudsmen Act, by which appropriate protection can be given to sensitive information. In practice it appears the privilege is generally waived – although in one case it was maintained, properly the Ombudsman agreed, in respect of legal advice on how to respond to the Ombudsman ((1993) 10(2) OCN 128).
326 The Law Commission therefore supports, in general, the insertion of s 19(5A) by s 2 of the Ombudsmen Amendment Act 1997, which came into force the day before this report went to press. Section 19(5A) allows an Ombudsman – in the course of an investigation – to require the supply of, and to consider, information in respect of which privilege is claimed, in order to assess the validity of the claim. The Ombudsmen may not use that information in any way that is not permitted by subs (5A); a new s 19(5B) specifies limits on the Ombudsmen’s disclosure of the information. Similarly, s 94(1A) of the Privacy Act, inserted by s 2 of the Privacy Amendment Act 1997, allows the Privacy Commissioner to require the supply of, and to consider, information in respect of which privilege is claimed, in order to assess the validity of the claim. But in our view both s 19(5A) and s 94(1A) now go too far and should be narrowed. Documents in respect of which legal professional privilege relating to the agency’s response to the particular complaint is claimed, should not be inspected by the Ombudsmen or the Privacy Commissioner unless the agency waives that privilege. Moreover, the privilege against self-incrimination should be preserved.181
327 The Law Commission supports the general approach of the new s 19(5A)–(5B) of the Ombudsmen Act and s 94(1A)–(1B) of the Privacy Act. These new provisions should, however, be amended to preserve the privilege against self-incrimination, and legal professional privilege so far as it relates to advice concerning the particular complaint.
328 A further issue which has arisen in the handling of complaints is an aspect of the time and resources agencies spend in justifying decisions to the Ombudsmen. Is an agency under an obligation to justify its refusal of a request? What of the countervailing public interest considerations which, in terms of s 9(1) of the Official Information Act, might override a good reason for withholding? The Court of Appeal in Commissioner of Police v Ombudsman made it clear that it is not helpful to refer in any broad way to concepts such as the burden of proof.182 Rather, the terms of the Act and the character of the Ombudsmen’s process should govern.
329 Section 5 of the Act states the principle that information is to be released unless there is good reason for withholding it. In the event of a dispute about whether there is or is not good reason, the Ombudsmen will have to make the relevant judgment on the basis of their private, inquisitorial, non-adversarial processes. The Ombudsmen have wide powers of inquiry which are not confined to the material put before them by those immediately involved. In the words of Casey J in the Commissioner of Police case:
In the nature of things he who alleges that good reason exists for withholding information would be expected to bring forward material to support that proposition. But the review is to be conducted and the decision and recommendations made without any presumptions other than those specified in the Act.(411)
330 The proposition in the first sentence would apply equally to the requester arguing under s 9(1) that the public interest in disclosure overrides the good reason for withholding. That might also be the case when other decisions (for example, the imposition of a charge, especially one fixed in accordance with the guidelines) are challenged as unreasonable.
331 Should a formal burden of proof be imposed on agencies to show good reason for withholding information under s 9? The Law Commission does not think so. It is central to the scheme of the legislation, and to the basic change of principle introduced by it, that the agency must show good reason for withholding. The agency will have addressed those reasons when making its original decision to refuse release. It will have advised the requester of the reason for withholding and, if requested, the grounds in support of those reasons. Some of our proposals are designed to enhance that original decision-making process. If there is a complaint against the agency’s decision, the reasons and grounds given by the agency will then be tested by an independent officer of Parliament.
332 Accordingly the Law Commission does not consider that a formal burden of proof should be imposed on agencies to show good reason for withholding information.
333 In its original form, the Act did not place any time limit on the provision by agencies of information required by an Ombudsman under s 19 of the Ombudsmen Act. There was not even the general principle, governing responses to the initial request, that the information be provided “as soon as reasonably practicable”. In the early years of the Act the Chief Ombudsman found that
a major impediment to the success of the [official information] review process has been its slowness. In order to be of any use to the requester, information often needs to be obtained promptly. . . . At times the review process has been undermined entirely, as in cases where important decisions have in the meantime been made concerning the subject matter of the information which is at issue, thereby reducing the usefulness of the information to the requester. As a result, I have had on a number of occasions to emphasise that extensive delays in responding to requests for reports or further comments (in some cases up to a year but more commonly in the order of three months) can hardly be seen to be within the spirit and intent of the Act and the review functions which Parliament entrusted to my office. The delays adversely affect the efficiency of the office and its standing in the eyes of complainants and the public.183
334 In 1987, a provision was added to the Official Information Amendment Act which obliges agencies to respond to a requirement of the Ombudsmen as soon as reasonably practicable, and in no case later than 20 working days after receiving it: s 29A(1). The agency may extend the time limit “for a reasonable period of time having regard to the circumstances” if:
335 The first and second reasons for extension run parallel to the reasons for the extension of time in responding to the initial request under s 15A(1). We have recommended that the third reason should also be available at that stage (see para 183).
336 The importance attached by Parliament to the initial and extended time limits in s 29A is emphasised by the express sanction included in the section. The Ombudsmen, having given the agency an opportunity to be heard, are given particular powers to report breaches of the limits to the Prime Minister and thereafter to Parliament: s 29A(6)–(7). While those powers are already conferred in a general way by the Official Information Act and Ombudsmen Act, Parliament thought it worthwhile to emphasise them.
337 The Ombudsmen have also given careful attention to compliance with the time limits since they were enacted. Thus they have a bring-up system to ensure that the agency is reminded of the initial time limit and the possible need for extension. They give particular attention to the time limits in their annual reports, so that Parliament is in a position to make a judgment about compliance with the 1987 requirements. They have also emphasised the perishable nature of information as a commodity.
338 We have already noted (in para 156) the Ombudsmen’s expressions of concerns about the time taken by departments to respond to their requirements. Response times to their requirements have also moved closer to the maximum of 20 working days than is desirable. That might reflect resource pressures upon agencies, and a failure to monitor time limits closely enough.
339 As discussed in chapter 4, the emphasis should not be solely on the 20 working-day limit. The prime obligation is to respond “as soon as reasonably practicable”. The Chief Ombudsman reported in 1991 on a spectacular, if very unusual, instance which arose shortly before the 1990 general election. The Leader of the Opposition sought a copy of a Treasury briefing paper which had been prepared for the new Prime Minister. The request was made on 10 September and was rejected on 9 October. Within 13 days of the complaint being made on 11 October the Chief Ombudsman proposed immediate release of some of the papers. The Prime Minister released them within 24 hours, two days before the election.184 This was well within the 10 working days.
340 The Law Commission does not recommend any change to the relevant provisions of s 29A of the Official Information Act. It does, however, support the emphasis in the Act, reinforced by its statements of purpose and principle and the Ombudsmen’s statements, on the critical importance of the timely availability of information.
341 The Law Commission calls attention to the value of the early determination of the scope of the request, consultation on that and related matters with the requester, and the use of other administrative aspects of the Act (see chapter 2). The Ombudsmen’s Guidelines in appendix F are important in this respect.
342 The issue has been raised whether the Ombudsmen should themselves be subject to a time limit in investigating and reporting on complaints. The Ombudsmen’s 1996 report records that official information investigations completed during the 1995–1996 reporting year took on average 57 working days to complete, compared to 84 working days in the 1994–1995 year, and to 85 days in the 1993–1994 year. The Ombudsmen have also improved the speed in processing complaints under the Local Government Official Information and Meetings Act: complaints reported during the 1995–1996 year took on average 48 working days to complete compared to 64 working days in the previous year. This represents a significant achievement, given that the total number of Official Information Act complaints completed by the Ombudsmen over that period increased from 898 to 1165, although completed complaints under the Local Government Official Information and Meetings Act dropped from 134 to 128.185
343 The Law Commission does not think complainants’ interests in timely information would be better served by an express statutory requirement that the Ombudsmen report within a prescribed period. Bodies set up to independently resolve disputes are very rarely subject to such obligations. There would also be difficulties in finding an appropriate sanction. The Ombudsmen are clearly aware of the need for timeliness, as appears from their 1996 annual report:
The primary objective of the 1995/96 Ombudsplan was to maintain and if possible improve the timeliness and throughput of our response to complaints made to our office. (1996 AJHR A.3)
344 Accordingly the Law Commission suggests no change be made to subject the Ombudsmen themselves to time limits in investigating official information complaints.
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