Nick Russell: OIA and TPP - Be careful what you wish for

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The High Court has found that the Minister of Trade Negotiations, the Hon Tim Groser, acted unlawfully when he refused Professor Jane Kelsey's Official Information Act request for documents relating to the negotiation of the Trans-Pacific Partnership (TPP).

The decision, released yesterday, is a clear setback for the Government, but not for the reasons you might think.

The court's main criticism of the Minister was that he made his decision to withhold documents without reviewing their contents. Instead, he claimed that he relied on his knowledge of the documents in reaching his decision that they should be withheld under one or more of the grounds provided for under the act. The court found that this was unlawful: Mr Groser could not make a blanket decision to withhold documents completely without first reviewing their contents.

This will be unwelcome to many in the public service. The Official Information Act doesn't just apply to ministers and government departments: it also applies to a huge range of public sector entities including universities, district health boards, regulatory bodies such as the Commerce Commission, and many, many more.

Similar rules apply (via the Local Government Official Information and Meetings Act) to councils and other local government entities. All of these bodies will now be reviewing their processes for responding to OIA requests to make sure they comply with the court's decision. In some cases that will mean having to take substantially more time and effort than in the past.

Paradoxically, the court's decision does not mean that the reasons the Minister gave for withholding the documents were necessarily wrong, or that the documents will all now be released.

The decision has already been reviewed by the Office of the Ombudsmen, who considered the contents of the documents covered by the request and agreed with the Minister's decision to withhold them.

As the Chief Ombudsman has already pointed out, that review was concerned with the substance of the documents rather than the process used by the Minister to reach his decision.

So what does all this mean? For a start, it does not mean that the documents will now be released. The Minister will now have to go back and reconsider Professor Kelsey's request for information, using the process set out by the High Court.

He may of course undertake that process and form the view that some of the information he originally withheld should now be released. But he could adopt the same view as the Ombudsman, namely that the information should still be withheld.

In the longer term, it means that people responsible for responding to OIA requests will need to take more care in identifying the documents that have been requested and considering their contents before reaching a decision on whether to release them. This may have unexpected consequences.

Decision-makers under the OIA are entitled to charge for the time taken to collect and review the relevant information, and may decide that the cost of responding to requests will have to increase as a result. This is probably not the outcome Prof Kelsey and the other applicants in the High Court wanted.

Nick Russell is a partner at Chen Palmer, New Zealand public and employment law specialists.