Groser's 'blanket approach' in turning down Kelsey's OIA requests on TPPA not lawful, court rules
By Jonathan Underhill
Oct. 13 (BusinessDesk) - Trade Minister Tim Groser had no lawful basis to withhold information about the Trans-Pacific Partnership agreement requested under the Official Information Act made by Jane Kelsey, a high-profile opponent of the trade deal.
Justice David Collins quashed Groser's decision on six of the seven categories of documents requested by Kelsey and directed the minister to reconsider her request, according to his judgment in the High Court at Wellington. Kelsey was joined by Consumer NZ, Ngati Kahungunu, Oxfam NZ, Greenpeace, the Association of Salaried Medical Specialists, the NZ Nurses Association and the NZ Tertiary Education Union in the claim for a declaratory judgment on the reach of the OIA.
"When the minister refused Professor Kelsey’s request, neither he nor his officials assessed each piece of information requested against the criteria in the act for withholding official information," Collins said in his judgment. "Instead, the minister adopted a 'blanket approach' to the request based upon his knowledge of the categories of documents requested by Professor Kelsey. I have concluded this approach did not comply with the act." The court heard that about 30,000 documents were relevant to the OIA request.
"When the minister reconsiders his decision he will be required to do so in a way that is consistent with his obligations under the act," the judgment says.
Groser and New Zealand’s chief negotiator for the TPPA agreement David Walker both said in affidavits to the court that New Zealand stood to get huge gains from the trade deal, which accounted for about 45 percent of the nation's total trade and would deliver free-trade agreements with two of the world's three largest economies.
Walker cited a study that suggested the TPPA would increase New Zealand's exports by US$4.1 billion by 2025 and on the need for confidentiality said it would have been "impossible for our negotiators to secure the best outcome for New Zealand if we publicly declared our detailed mandates to our negotiating partners in advance of negotiations."
Kelsey argued in her affidavit that the TPPA had extended "into areas of public policy that have little or no relationship to traditional forms of trade, and … impinge on the regulatory autonomy of domestic governments, Parliament’s authority and te tino rangatiratanga of iwi, Māori under the Treaty of Waitangi."
The release of documents was "essential to a functioning democracy", she said. Kelsey had written to the minister after her request was turned down, telling Groser that the general reasons he gave didn't include "the grounds in support of those reasons". She subsequently, on March 6, made a complaint to the Chief Ombudsman, which investigated the complaint including meeting MFAT's Walker and viewing 21 documents that fell within the scope of Kelsey's request.
The Chief Ombudsman, in her final report released on July 29, endorsed the minister's decision not to release documents other than in two categories - a list of all documents tabled by New Zealand in the TPPA talks and a cost-benefit analysis of the agreement - for which she deferred her final decision.
Kelsey and her fellow applicants subsequently applied for the judicial review.
Justice Collins ruled that he didn't need to issue the declarations sought by the applicants because his orders and judgment "appropriately vindicate Professor Kelsey's rights under the act", the orders reinforce to the minister and other decision-makers the importance of discharging their responsibilities under the OIA.
And he ruled there was merit in allowing the applicants to be granted leave for any supplementary or consequential orders, given the Chief Ombusdman was still considering her decision on two categories of documents, but he set a six-month deadline. The applicants had succeeded in their primary cause of action but had only limited success in relation to their other grounds for judicial review, he said, adding that they were entitled to costs.
Kelsey said in a statement that it was "cold comfort that the minister will have to revisit the request, using a proper process and interpretation of the rules, after the negotiations have already concluded."
Groser's "unlawful approach in circumventing the Official Information Act appears to have achieved its goal," she said. "Nevertheless, the minister should now release at least some documents that can help inform the debate on the TPPA."
The court’s decision also had longer-term precedent value, she said.
Kelsey also said that there were "equally serious questions about the Chief Ombudsman’s failure to hold the minister to account."
"The Chief Ombudsman is meant to be a check on executive power, not to legitimise its unlawful practices," she said.