Failure to investigate an OIA complaint. Can complaints survive a reshuffle?

As you may be aware, following the Cabinet reshuffle last week, Hon Chris Hipkins is no longer the Minister for Covid-19 Response. The Ombudsman cannot investigate an OIA decision (or delay or failure to make a proper decision) of a Minister who no longer holds the relevant ministerial portfolio.

Email from Senior Investigator, Office of the Ombudsman, 20 June 2022

The Council has actively monitored policy and laws relating to the government’s Covid-19 response over the last two years.

In early October 2021, the government announed proposals for vaccine certificates. The Council immediately wrote to the Prime Minister and the Minister for Covid-19 Response, seeking information.

The Council sought from the Minister:

• The advice provided on the NZ Bill of Rights Act and Human Rights Act implications of vaccination certificates;
• The advice received from the Privacy Commissioner on the topic;
• The information shared by the government with the events and hospitality sector when it initiated consultation with them in early October; and
• Details about the design of the vaccination certificate scheme.

As we explained in our media release of 22 November 2021, the Minister refused our request on the basis that he would publish the information later.

‘Later’ meant after the legislation had passed. We thought this was completely improper, as it would deny us, the public, and Members of Parliament relevant and important information needed in order to consider proposals that would affect our freedom of movement and freedom of association. There was a very strong public interest in this information being made available at the time.

The Council lodged an urgent complaint with the Ombudsman, asking him to expedite an investigation so as to uphold the participative purpose of the OIA.

What then happened is that no investigation took place.

Four weeks later the investigator to whom the complaint had been assigned told us he was making ‘preliminary inquiries’. The complaint was not formally ‘notified’ to the Minister.

15 weeks later, the investigator said they had heard back from the Minister and were ‘considering next steps’. Was the Council still interested in the complaint being investigated? Yes, we said, still interested.

11 weeks later, on 20 June, the investigator wrote again, to say that because of the recent ministerial reshuffle the Ombudsman “cannot” investigate our complaint, and that consequently the ‘preliminary inquiries’ had been discontinued.

The Council is not happy with this situation, and has written to the Chief Ombudsman to explain our views and ask him to reconsider this decision. The letter is set out below, and we will publish the Ombudsman’s response when it has been received.

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22 June 2022

Tēnā koutou Mr Boshier,

Complaint about failure to investigate and delayed inquiries being discontinued

I am writing to ask you to review and revise the decision taken in your name not to commence an investigation of an OIA complaint the Council made to you on 22 November 2021, and to discontinue ‘preliminary inquiries’. It appears that significant delays in your investigation of our complaint have led to this situation, as well as an interpretation of the OIA and Ombudsmen Act that we are not sure withstands scrutiny.

Request and complaint

On 9 October 2021 the Council wrote to the Minister for Covid-19 Response and the Prime Minister about the government’s decision to introduce vaccine certificates. This measure clearly had major civil liberties implications, and if the OIA’s section 4 public participation purpose is to have any meaning whatsoever, it was vital that the information be provided ahead of parliamentary consideration of the enabling legislation. The Council provided its reasons for seeking an urgent response, as required by the OIA.

No response was received from the Prime Minister or Minister for Covid-19 Response within 20 working days. Nor was an extension received. When the Council followed up on 11 November, it received a refusal from the Minister for Covid-19 Response on 22 November.

The Council complained to you on the same day, asking you to urgently investigate our complaint. We wrote:

Reason for seeking urgency: Parliament will this week be debating the legislation that will create the legal framework for vaccination certificates within Aotearoa New Zealand. The information we have requested – and the Minister has refused – is critical both to MPs being able to effectively scrutinise the legislation and for the Council and the public to participate in the legislative process.

The complaint was assigned case number 568703.

In spite of our request for urgency, it was not until 17 December 2021 that we were contacted by the investigator to whom the complaint had been assigned. They said they had made ‘preliminary inquiries’.

By that time, the legislation had passed, and all opportunity to use the information to provide advice to Parliament as it considered the proposals – as intended by the framers of the OIA – had been lost. This delay and its effects are clearly unsatisfactory, and have a negative impact both on the trust the public can place in your office to ensure the Act’s purposes are achieved, and your personal mana as Chief Ombudsman. As we noted in our 22 November letter of complaint:

If the position of Ombudsman is to safeguard the mana of the people by protecting their rights in a meaningful way, we expect you to expedite an urgent investigation of the Minister’s refusal of our request, by immediately notifying him of your investigation and drawing this matter to the attention of the Speaker of the House of Representatives.

Slow progress of your ‘preliminary inquiries’

As noted above, the Council’s complaint about the Minister’s refusal of our request was not expedited, nor formally notified to the Minister. Instead, for some reason, the investigator decided four weeks later on 17 December that ‘preliminary inquiries’ were appropriate.

We then heard nothing about progress with these ‘inquiries’ until 15 weeks later, on 5 April 2022. The investigator then presumed to suggest that the Council was not interested in the complaint being investigated because we had not written to provide any further information. This is deeply unsatisfactory. Once a complainant has made a complaint to you, your functions under section 28 of the OIA are clear. It is not for the complainant to keep badgering the investigator. We have a legitimate expectation that the investigator assisting you will get on with their job, notify the complaint, and progress the investigation.

In spite of the ‘preliminary inquiries’ having been made in December 2021, no update was provided on 5 April 2022 as to what the Minister’s response to those inquiries was. The investigator merely told us that they were ‘presently considering next steps’. Since it was abundantly clear on the day of receipt of the complaint that it should be formally notified, we are mystified as to what could possibly need any further consideration 4 months later. The OIA provides a right to information, except for where refusals are permitted, the Minister had refused a request, and the Act spells out your function as investigating refusals, not the making of unspecified and desultory ‘preliminary inquiries’ over the course of almost 4 months.

After assuring your investigator on 11 April that we still wanted the complaint investigated, no further updates on progress were provided.

Discontinuation of the ‘preliminary inquiries’

The investigator assisting you then wrote to us 11 weeks later, on 20 June 2022, informing us that even these distinctly tenuous ‘preliminary inquiries’ were going to be ‘discontinued’ – although it is far from clear that they had ever been continued after their first instance last December.

The investigator wrote:

As you may be aware, following the Cabinet reshuffle last week, Hon Chris Hipkins is no longer the Minister for Covid-19 Response. The Ombudsman cannot investigate an OIA decision (or delay or failure to make a proper decision) of a Minister who no longer holds the relevant ministerial portfolio.

Unfortunately, that means that this Office is unable to take any further action regarding you concerns about a delay in this case, and our preliminary inquiries have been discontinued.

This communication contains two assertions, stated as fact, but which we believe are not firmly grounded in correct interpretation of the OIA or the Ombudsmen Act.

First, the investigator stated “The Ombudsman cannot investigate an OIA decision (or delay or failure to make a proper decision) of a Minister who no longer holds the relevant ministerial portfolio.”

Section 2 of the OIA defines various terms used in the Act. It means that where, in section 12, it states that any eligible person –

‘may request a department or Minister of the Crown or organisation to make available to him or it any specified official information’

the right is to ‘any information held by… a Minister of the Crown in his official capacity’. Note that ‘held by’ is past tense, which suggests it means ‘held at the time the request is received’.

The definitions of ‘Minister of the Crown’ and ‘official information’ make no reference to applying the law only to the present holder of a specific ministerial warrant at the time the request was received. The Council notes that in civil litigation against a Minister for a particular portfolio, the litigation does not lapse following a change in the holder of the warrant for that portfolio.

The assertion that ‘The Ombudsman cannot investigate’ therefore does not seem to be legally correct, both because Chris Hipkins continued to be a Minister of the Crown, and because the present warrant holder, Dr Ayesha Verrall, could respond to any investigation you commence.

Second, the investigator stated “that means that this Office is unable to take any further action regarding your concerns”.

Section 28 of the OIA does not create any such limitation in relation to commencing, carrying out, or concluding an investigation.

It appears to the Council that the use of the words ‘cannot’ and ‘unable’ are actually about potential practical issues with an investigation, not legal difficulties in commencing or continuing an investigation.

The Council notes any practical issues would not have been a concern had the investigation been formally commenced by notification of the complaint, as we had requested urgently take place last November.

The Council also notes that there is no reason why the Ombudsman should lift from the Minister the burden of having to respond to his inquiries and investigation. As noted, civil litigation against a minister does not lapse because there has been a change in who holds the particular warrant. The practical issues involved in a department supporting a Minister to respond to an Ombudsman’s investigation are far from insurmountable: the Minister worked in the Beehive while holding one warrant, and continues to work in the Beehive while another person holds the warrant and the original Minister holds another warrant. They can consult each other if necessary. Information was sent to the Minister from departments around Wellington, and will continue to do so. People’s rights to information, and to have their complaints investigated, should not be sacrificed to politically expedient claims by Ministers of practical difficulty. There is nothing in the drafting of the OIA to indicate this is the proper or preferred course of action.

Discretionary decision

It appears therefore that the decision made by you (or on your behalf and following your internal guidance or procedures) not to commence an investigation and to discontinue preliminary inquiries is a discretionary matter. You may feel that any delegation to the investigator has not been correctly exercised.

The decision appears to rely upon section 17(1)(f)(i) of the Ombudsmen Act 1975. However, as that section puts it, the decision must be taken ‘having regard to all the circumstances of the case’

The section makes clear that a refusal to investigate formally ‘following preliminary inquiries’ is only appropriate where ‘an investigation is unnecessary’.

The Council does not believe an investigation is ‘unnecessary’. As we stated to you 30 weeks ago,

The Council finds it difficult to conceive of a stronger public interest in openness in a free democracy that in relation to how the government has considered the issues around limiting people’s freedom of movement and association under the New Zealand Bill of Rights Act 1990. We expect the information we have requested to explain how the government believes that there are good reasons for limiting those rights in accordance with section 5 of that Act. We further believe that the public and members of parliament urgently need to be able to read this information.

An investigation was vital in order to uphold the participative purpose of the OIA. An investigation was, and remains, necessary to establish why it was the Minister thought their response to our request was legally correct at the time it was made. Why did the Minister think that a refusal (apparently under section 18(d) of the OIA) was reasonable in the circumstances, given the participative purpose of the OIA? An Ombudsman’s opinion on this complaint has the potential to provide clear guidance to Ministers, departments and requesters on what can be expected in relation to matters of clear public interest when legislation is being introduced.

An investigation was, and remains, necessary to provide accountability – another OIA purpose – for the actions of Ministers and officials in not providing this information to the Council – and thereby members of parliament – ahead of the debate on the legislation enabling vaccine certificates. There have been, and continue to be, many aspects of Ministers’ handling of matters around the response to Covid-19 that need to be publicly scrutinised. A decision to deny timely access to this information is one such matter that should be scrutinised.

The Council notes that in response to your publication on 24 March 2020 of a statement containing advice for agencies on meeting their OIA responsibilities at the start of the pandemic, the Minister of Justice wrote on Twitter:

“The Official Information Act remains important for holding power to account during this extraordinary time.”

The Council further notes that in your media release on 28 September 2021, entitled ‘Use your right to know’ and concerning International Right to Know Day, you said:

“Our collective right to know promotes greater public participation in the democratic process, and has an important role in providing checks and balances on government. The Ombudsman is a crucial cog in the engine of democracy.”

It is difficult to see how, in the context of extraordinary powers being adopted by the government to limit people’s freedom of movement and association through the use of a vaccine certificate, investigation of a complaint about a Minister’s refusal to make the information available to enable informed participation in parliamentary debate on these powers could, in any shape or form, be described as ‘unnecessary’.

Section 17(2) of the Ombudsmen Act requires that:

(2)     If an Ombudsman refuses to investigate or further investigate a complaint, the Ombudsman must inform the complainant of the decision and give his or her reasons for it.

It appears that your investigator’s email to the Council of 20 June 2022 is an attempt to comply with this provision.

However, since:

• the reasons provided have no legal basis, and
• the practical issues are far from insurmountable, and
• there is no reason to believe the Minister’s response to the ‘preliminary inquiries’ would establish a reason not to investigate the refusal of our request,

we do not believe they provide a reasonable basis for concluding the circumstances indicate an investigation is ‘unnecessary’.

The Council therefore does not believe that the investigator, acting in your name, has exercised your discretion reasonably.

Conclusion

There is no sign that the Council’s urgent complaint was properly triaged and prioritised upon receipt, despite us explicitly flagging up the urgency and importance of the issue.

There is no sign of timely investigation – or in fact of any formal investigation at all.

Communications were sporadic, uninformative, and inappropriately tried to place the burden for continuation on the Council as complainants.

The delay in commencing an investigation is entirely a matter for you and your office, and now we are being told the delay is to result in abandonment of your function to investigate our complaint.

We do not believe the law provides grounds for failing to commence a formal investigation of our complaint (nor, if it had been commenced, to discontinue it).

We think that you, or maybe just the investigator acting in your name, have not exercised properly or correctly your discretion under section 17(1)(f) of the Ombudsmen Act.

Discontinuing ‘preliminary inquiries’ 30 weeks after receiving the Council’s complaint is not indicative of a regulator who takes our Official Information Act seriously. You are an Officer of Parliament, and yet your office has acted in ways that frustrate not just the Council’s ‘effective participation in the making and administration of laws and policies’, but to deprive Members of Parliament from receiving information to help them exercise their duties and responsibilities.

Discontinuing ‘preliminary inquiries’ and not commencing a formal investigation is also inconsistent with, and frustrates, the OIA’s purpose of promoting ‘the accountability of Ministers of the Crown and officials’.

The Council notes that in comments to Newsroom published on 30 May 2022, you said compliance with the OIA is “core business for public sector agencies and ministers” and that you have signalled that from 1 July 2022 your previous approach to complaints will be revised, and toughened. While this aligns with the start of a reporting year, to not adopt an approach of using your available powers to discharge your functions before then is, frankly, arbitrary, as it does not have regard to the circumstances of the particular complaint at hand.

The Council looks forward to receiving your full and considered response. We will be publishing this letter and your response.

As remedies, we seek:

1. commencement of a formally notified investigation into our complaint of 22 November 2021; and
2. the publication on your website of guidance on the transfer of Minister’s legal obligations to deal with (a) OIA requests and (b) investigations conducted by your office following a reshuffle of ministerial portfolios during the same Parliament; and
3. publication of information about how your office (a) prioritises and triages complaints upon receiving them, (b) expected performance timeframes applying to each stage of an investigation for each of the different priorities assigned to complaints, (c) the detailed factors and criteria for use by you and investigators when exercising the discretionary powers under section 17(1)(f) of the Ombudsmen Act in relation to OIA complaints; and
4. an apology for the poor handling of our OIA complaint of 22 November 2021.

We believe these are reasonable requests to make of a regulator charged with your statutory responsibility to uphold a cornerstone of New Zealand’s constitutional arrangements.

Ngā mihi,

Thomas Beagle
Chair
New Zealand Council for Civil Liberties