Ombudsman Decision In Hobbit Case Feb 2013 - Full Text Of Decision
Below are links to the decision of the Ombudsman David McGee determining that 18 additional Hobbit related documents must be released by the Government.
Ministers have 21 working days from today to release the additional documents unless Cabinet passes an Order in Council.
[The following is a text-recognition version of the summary – lacks formatting and may contain character errors. Please refer to the original in part one above.]
In late 2010 the New Zealand Council of Trade Unions and Radio New Zealand sought information from Ministers regarding the production of The Hobbit. The former also sought information about film production generally in New Zealand. These requesters along with a number of other requesters, received a response from the Hon Gerry Brownlee. The Minister noted that because similar requests had been made to a number of Ministers, a decision had been made to release the same documents to all those who had made a request. Although some information was provided (including information that was outside the scope of the requests) some of the requested information was withheld. The New Zealand Council of Trade Unions and Radio New Zealand sought the Ombudsman’s review ofthe information withheld.
On review my key findings are:
0 Section 9(2)(ba) of the Official information Act 1982 (OIA) does not apply to information which was supplied to the Government by the film industry third parties (the parties identified by Ms Kelly in her request). This provision is not intended to permit Ministers or departments to erect a barrier to the disclosure of general policy submissions made to them by third parties on the ground that an obligation of confidence thereby arises that is owed to those submitters.
0 Section 9(2)(h) applies to the legal advice obtained by the Government. The conduct of Ministers was not inconsistent with maintaining the confidentiality of the privileged material. The public interest considerations which favour disclosure do not outweigh the section 9(2)(h) interest, with the exception of the case of one document.
0 This document is a letter which was drafted by Crown Counsel as part of advice to Ministers on how to respond to submissions made by a film industry third party. Although this draft was never turned into a letter sent to, or formally received by, the film industry third party, it was shown to that third party at a meeting. Accordingly, while in its origin it may have been legal advice, it was adopted by Ministers as representing their own position. Ministers cannot expect their correspondence with third party submitters on issues of public policy to remain confidential (with the exception of personal or commercially prejudicial material), especially when matters which have been urged on Ministers are subsequently implemented by policy or legislative changes. The submitter’s urgings and the ministerial response become part of the history (which the public has a legitimate interest in knowing) of how policy or legislation was developed.
» Section 9(2)(g)(i) does not apply to the submissions and comments that were made to Ministers by the film industry third parties. While there will be circumstances in which persons may feel inhibited from making submissions by the prospect of those submissions being made public, this was not so in this case. The submissions and comments that were made to Ministers by these parties were made in their own direct interests with a view to persuading the Government to a policy stance that advantaged them in their commercial dealings. There is nothing improper in this and it has not been suggested that there was. But it is not accepted that persons who have a commercial interest in making submissions to Ministers would be likely to be deterred from doing so by the prospect of release. They might prefer non-release, but release is a consequence that has to be, and is likely to be, borne with.