Official Information Act

Press, 19 December 1989, Page 12

Official Information Act

Ombudsman’s casebook

When considering disclosure of information under the Official Information Act, the principle of availability in 5.5 mustbe. paramount. This providesthat, where the question of availability of any informa-tion-arises under the act, that question shall be determined in accordance with the purposes of the Act and the principle that the information shall be made available unless there is good reason for withholding it. The possibility of defamation arising from disclosure of information is not a “good reason” under the Act.

IN this case a request was received to investigate and review ~a decision by the then Prime Minister not to make available a full copy of a document, part of which had previously been released by him at a press conference concerning the so-called “Maori Loans Affair.”

The document concerned had been released in abridged form, so as to disclose most of its contents but to protect information relating to its origin. A /furthferi’deletion had been made -by the Prime Minister, a deletion which v/hS justified- by ; him: in terms of the need to avoid the publication a possibly defama"tdry'staiement.The requestor, a member of ' the " filamentary Press Gallery, had then sought a full copy of the document under the Official Information Act. His request had been refused.

I accepted that the origin of

the document could be protected under s.6(b)(i) bf the act. My investigation and , review then focused on the further deletion which had been made. The Prime Minister did not seek to explain this deletion in terms of the Official Information Act. He acknowledged that, under 5.48 of the Act, no action for defamation shall lie against a person who makes available official information, but he asserted that Ministers of the Crown ought, nevertheless, to avoid making defamatory statements.

The Prime Minister’s staff pointed out, in the course of the investigation, that a decision had been made to release some information at the press conference because the Prime Minister considered it was in the public interest to do so. It was suggested that the Official Information Act should not interfere in political judgments of this nature.

I felt bound to say that I could not agree with the Prime Minister’s approach; I accepted, of course, that 5.48 is a residual type of provision which should hot be used to encourage defamatory statements to be made.

I pointed out, however, that my review was concerned not with the Prime Minister’s disclo-

sure of information at his press conference, but with a subsequent request made under the

Official Information Act for access to the full document. Disclosure of the deleted information would not, under those circumstances, have been a “ministerial statement.”

While I appreciated the Prime Minister’s remarks and the need to ensure the proper conduct of ministerial business, I said that I would be failing in my duty as an officer of Parliament if I did not ensure that decisions on requests under the act were made in terms of the act. The act itself, with its broad definition of the term “official information” and its express application to information held by Ministers of the Crown, makes it clear that even in matters of extreme political sensitivity, requests may be addressed to Ministers under the act, and that such requests must be determined in accordance with the act’s provisions. If no good reason exists under the act for withholding- the information, then the information must be made available, notwithstanding its possibly defamatory content or any other consideration which might otherwise cause political embarrassment.

I then proceeded to consider the withholding of the information in terms of the act itself. When considered in these terms, good reason was found to exist for withholding the information under 5.9(2)(a), to protect the privacy of the individual named in the document.