Request for correspondence between agencies and Operation Burnham inquiry

Legislation Official Information Act 1982, s 2(1); Inquiries Act 2013, ss 15(1)(a), 32(1) Agency New Zealand Defence Force, Government Communications Security Bureau, New Zealand Security Intelligence Service Ombudsman Peter Boshier Case number(s) 491000, 491854 Date 28 May 2019, 17 July 2019

Information held by agencies was ‘official information’—no exclusions applied—section 32 of the Inquiries Act did not change the status of the information held by agencies as ‘official’— information released with redactions

Background A journalist asked three agencies—the New Zealand Defence Force, the New Zealand Security Intelligence Service, and the Government Communications Security Bureau—for copies of any correspondence with the Government Inquiry into Operation Burnham and related matters, other than evidence or submissions. The agencies refused the request on the basis that the correspondence was not ‘official information’, and the requester complained to the Ombudsman. The agencies argued that the correspondence was not ‘official information’ because of section 32(1) of the Inquiries Act. That section says that documents created by an inquiry, or received in the course of an inquiry, are ‘official information’ (subject to the exceptions in section 32(2)), once the inquiry has reported. By implication (the argument went), such information cannot be ‘official information’, no matter who holds it, until an inquiry reports. To say otherwise would be to undermine section 32(1) and the effective conduct of Inquiries Act inquiries more generally.

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The Chief Ombudsman’s view The Chief Ombudsman considered that the correspondence was ‘official information’ in the hands of the agencies. While inquiries under the Inquiries Act are not subject to the OIA, government agencies that interact with inquiries are subject to the Act (with very few exceptions), and the information held by those agencies is official information, unless one of the exclusions in section 2(1) of the OIA applies. In the context of an Inquiries Act inquiry, the relevant exclusions are:1  any matter subject to an order made under section 15(1)(a) of the Inquiries Act; and  a document relating to the internal deliberations of the inquiry that is created by an inquiry member in the course of the inquiry or provided to the inquiry by an officer of the inquiry. The requested correspondence did not appear to be subject to a non-publication order under section 15(1)(a) of the Inquiries Act. Indeed, those orders may only be made in respect of evidence and submissions, which had been expressly excluded from the scope of the request. While it was possible that the correspondence might reveal the internal deliberations of the inquiry, the Chief Ombudsman would need to see the information first to determine this. Therefore, the requested information did not appear to fall within the relevant exclusions. Section 32(1) of the Inquiries Act did not change the status of information held by agencies as ‘official’. That section confirms that information is ‘official information’ once an inquiry has reported. It does not say that information held by agencies subject to the OIA is not ‘official information’ until it reports. The courts have recognised the OIA as a ‘constitutional measure’, containing ‘in effect its own code’,2 that governs access to official information held by Ministers and agencies. Parliament must, therefore, have made very clear its intention to override the OIA by way of other legislation.3 Having regard to the background and wording of section 32, that intention was not clear.

Outcome After considering the Chief Ombudsman’s view, the agencies accepted that the correspondence was ‘official information’. They agreed to reconsider the requests and release the information with necessary redactions, and the Chief Ombudsman discontinued his investigation.

1 Paragraph (ha) of the definition of ‘official information’ in s 2(1) of the OIA. 2 See Commissioner of Police v Ombudsman [1988] 1 NZLR 385 at 391. 3 See Annual Report of the Ombudsmen 2009/10 at 35.

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This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

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