Public interest considerations re: OIA refusal of info re vaccine certification

John Jacobson made this Official Information request to Ministry of Health

The request was successful.

From: John Jacobson

Dear Ministry of Health,

On 13 April 2021 I made a request to you for information relating to the Ministry's work on certifying or proving a person's Covid-19 status (your reference: H202104400).

The 13 April request and response can be found here:
https://fyi.org.nz/request/15162-certifi...

On 7 May 2021 the Ministry refused my request entirely, citing section 9(2)(f)(iv) of the OIA.

This request has three parts. Under section 12(3) of the OIA I am requesting that the Ministry respond to this request urgently. That section requires a requester to state their reasons for requesting an urgent response. My primary reason for seeking urgent disclosure of the information to enable people to play an informed part in the debate on the policy issues and options around certification or proof of a person's Covid-19 status. These options could have a major impact on people's civil liberties, their ability to get or maintain employment, travel, and so on. I believe there is a strong public interest in the public debate on these issues being better informed *before* Ministers take final decisions and/or legislation is introduced to Parliament. I do not believe that a better informed public prior to Ministers and Cabinet taking decisions will harm the orderliness of consideration of that advice nor the effectiveness of government decision making. If public debate on the material disclosed leads to a different choice, that's what a democracy is about.

First part of my request:
I don't believe the withholding ground cited by the Ministry in its 7 May response can apply to all the information I requested, since the Ombudsman's guidance on section 9(2)(f)(iv) states that:

"Section 9(2)(f)(iv) usually applies:
* to advice related to executive government decision making processes;
* that has or will be tendered to Ministers or Cabinet;
* by Ministers or officials;
* where disclosure would harm the orderly and effective conduct of the relevant decision making process; and
*most often on a temporary basis—while the advice remains under active consideration."

(Page 3 of the guide here: https://www.ombudsman.parliament.nz/site...)

The key elements to note are that 9(2)(f)(iv) applies to advice that has been or will be tendered to Ministers or Cabinet.

Paragraphs (c)(iii)-(vi) and paragraphs (d),(e), and (f) of my request seek information that can in no way be understood to be advice to Ministers. Section 9(2)(f)(iv) can therefore not provide 'good reason' under the OIA to withhold this information. Please provide the information requested as soon as possible.

The second part of my request relates to the Ministry's consideration of the public interest factors in release and withholding the information sought in my 13 April 2021 request.

All the withholding grounds in section 9 of the OIA require the Ministry to consider whether the public interest in disclosure outweighs the reasons for withholding the information (see section 9(1) of the OIA).

The Ministry has not explained what public interest factors it has considered. I therefore request, pursuant to sections 12 and 19(a)(ii) of the OIA, all information the Ministry holds about its consideration of the public interest in disclosing or withholding the information I requested on 13 April 2021, and all internal communications relating to the processing of my request.

The third part of this request relates to the Ministry's consideration of paragraphs (a), (b) and (c)(i)-(ii) of my 13 April request. The Ombudsman's guidance is clear that 9(2)(f)(iv) might apply when disclosure would prejudice the ability of Ministers and Cabinet to consider the advice tendered by Ministers and officials (page 5). The Ministry will need to demonstrate *how* disclosure would prejudice the ability of Ministers and Cabinet to consider the advice. It has not done this in its response of 7 May, simply made an assertion.

Please also note page 7 of the Ombudsman's guidance where he states a Ministry must consider:

"Is there any background material, or information that is purely factual or comprises bare options (as opposed to the analysis or evaluation of options)? Such material can often be released without any impact on the relevant decision making process. If it is severable from the remaining advisory material, there may be a basis for partial release. As the Committee that recommended the enactment of the OIA noted, ‘it is by no means now the case – if it ever was – that the canvassing of options within government administration must always be protected by confidentiality’."

The Ministry has not provided - or given any indication that it has considered doing so - any of this 'purely factual' or 'bare options' material contained in the material within scope of paragraphs a), (b) and (c)(i)-(ii).

In responding to this request, please explain - and provide all information held in relation to - how the Ministry has considered the application of the public participation 'in the making of administration of laws and policies' (section 4 purposes of the OIA) when considering whether section 9(2)(f)(iv) provides good reason to depart from the section 5 principle of availability. For further guidance on this issue, see page 11 of the Ombudsman's guidance on Public Interest, available here:
https://www.ombudsman.parliament.nz/site...

I look forward to hearing from you soon, given the urgency of this request.

Yours faithfully,

John Jacobson

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From: John Jacobson

Dear Ministry of Health,

I have not received from you an acknowledgement of receipt for the OIA request I made to you. Please confirm your receipt of the request I sent you.

Yours faithfully,

John Jacobson

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From: OIA Requests

Kia ora John Jacobson

The Ministry of Health stands by its decision to withhold information pertaining to your request under section 9(2)(f)(iv) of Act, as Ministers and officials have not made any decisions yet.

However, we can advise that the Ministry of Transport was initially the lead for this work and have written briefings to Ministers on this topic. You may wish to contact the Ministry of Transport directly for this information.

Under section 28(3) of the Act, you have the right to ask the Ombudsman to review any decisions made under this request.

Ngā mihi

OIA Services
Government Services
Office of the Director-General
Ministry of Health
E: [email address]

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From: John Jacobson

Dear Ministry of Health,

This is again not a valid response to my OIA request, and I strongly suggest you show it to one of your lawyers, who will confirm this. Not only is the Ministry currently failing to meet its obligations under the OIA, but it is also disregarding the responsibilities of the Chief Executive that can be found in section 12(1)(d) and 12(2) of the Public Service Act 2020, and the section 16(1)(c) public service value found in the same Act.

In my request to you of 10 May 2021 I told you that it was invalid to apply the section 9(2)(f)(iv) withholding ground to material that doesn't constitute advice tendered to a Minister. I provided you with links to the Ombudsman's guidance which confirms this point. You have still not provided a valid response to parts (c)(iii)-(vi) and paragraphs (d),(e), and (f) of my request of 13 April 2021.

Second, I asked the Ministry, pursuant to both section 12 and the separate right under section 19(a)(ii) to provide me with "all information the Ministry holds about its consideration of the public interest in disclosing or withholding the information I requested on 13 April 2021, and all internal communications relating to the processing of my request." You have failed to respond to this aspect of my request of 10 May 2021, and your email provides no ground for refusal that is compliant with the OIA.

The Chief Executive of the Ministry of Health has spoken in public about the importance of transparency to the Ministry's success in responding to the pandemic, and retaining public trust. I agree with him. I respectfully ask that he respond to this OIA request in a manner consistent with the section 4(a)(i) purpose of the OIA, which is to enable people to participate in policy debates before decisions are taken. I cannot participate in the making of policy if the Ministry refuses to disclose information about policy formation until Ministers have taken decisions.

At present the Ministry's response looks like it is acting cynically to delay disclosure by forcing the matter to be investigated by the Ombudsman instead of complying with its legal obligations under the OIA. This is conduct that is destructive of public trust in the Ministry, even if it is conducive to pleasing senior managers and Ministers.

Please confirm that you will be providing a compliant response to my request of 10 May 2021. If not, please confirm this so I may ask the Ombudsman to undertake an expedited investigation.

Regards,

John Jacobson

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From: OIA Requests


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Kia ora

 

Thank you for your request for official information received on 10 May
2021 for:

 

    "...all information the Ministry holds about its consideration of the
public interest in disclosing or withholding the information I requested
on 13 April 2021, and all internal communications relating to the
processing of my request..."

 

The Ministry's reference number for your request is: H202106233.

 

As required under the Official Information Act 1982, the Ministry will
endeavour to respond to your request no later than 8 June 2021, being 20
working days after the day your request was received.

 

If we are unable to respond to your request within this time frame, we
will notify you of an extension of that time frame.

 

If you have any queries related to this request, please do not hesitate to
get in touch.

 

Please note, the Ministry of Health will revise its decision to withhold
information pertaining to your request under section 9(2)(f)(iv) of the
Act (H202104400 refers).

 

Ngā mihi

 

OIA Services

Government Services

Office of the Director-General

Ministry of Health

E: [email address]

 

 

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From: OIA Requests


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Kia ora

 

Thank you for your request for official information, received on 10 May
2021 requesting:

 

In reference to the Ministry's response on 7 May 2021 (H202104400 refers)
"...all internal communications relating to the processing of my request."

On 13 April 2021 I made a request to you for information relating to the
Ministry's work on certifying or proving a person's Covid-19 status (your
reference: H202104400).

The 13 April request and response can be found here:
https://scanmail.trustwave.com/?c=15517&...

On 7 May 2021 the Ministry refused my request entirely, citing section
9(2)(f)(iv) of the OIA.

This request has three parts. Under section 12(3) of the OIA I am
requesting that the Ministry respond to this request urgently. That
section requires a requester to state their reasons for requesting an
urgent response. My primary reason for seeking urgent disclosure of the
information to enable people to play an informed part in the debate on the
policy issues and options around certification or proof of a person's
Covid-19 status. These options could have a major impact on people's civil
liberties, their ability to get or maintain employment, travel, and so on.
I believe there is a strong public interest in the public debate on these
issues being better informed *before* Ministers take final decisions
and/or legislation is introduced to Parliament. I do not believe that a
better informed public prior to Ministers and Cabinet taking decisions
will harm the orderliness of consideration of that advice nor the
effectiveness of government decision making. If public debate on the
material disclosed leads to a different choice, that's what a democracy is
about.

First part of my request:
I don't believe the withholding ground cited by the Ministry in its 7 May
response can apply to all the information I requested, since the
Ombudsman's guidance on section 9(2)(f)(iv) states that:

"Section 9(2)(f)(iv) usually applies:
* to advice related to executive government decision making processes;
* that has or will be tendered to Ministers or Cabinet;
* by Ministers or officials;
* where disclosure would harm the orderly and effective conduct of the
relevant decision making process; and *most often on a temporary
basis—while the advice remains under active consideration."

(Page 3 of the guide here:
https://scanmail.trustwave.com/?c=15517&...

The key elements to note are that 9(2)(f)(iv) applies to advice that has
been or will be tendered to Ministers or Cabinet.

Paragraphs (c)(iii)-(vi) and paragraphs (d),(e), and (f) of my request
seek information that can in no way be understood to be advice to
Ministers. Section 9(2)(f)(iv) can therefore not provide 'good reason'
under the OIA to withhold this information. Please provide the information
requested as soon as possible.

The second part of my request relates to the Ministry's consideration of
the public interest factors in release and withholding the information
sought in my 13 April 2021 request.

All the withholding grounds in section 9 of the OIA require the Ministry
to consider whether the public interest in disclosure outweighs the
reasons for withholding the information (see section 9(1) of the OIA).

The Ministry has not explained what public interest factors it has
considered. I therefore request, pursuant to sections 12 and 19(a)(ii) of
the OIA, all information the Ministry holds about its consideration of the
public interest in disclosing or withholding the information I requested
on 13 April 2021, and all internal communications relating to the
processing of my request.

The third part of this request relates to the Ministry's consideration of
paragraphs (a), (b) and (c)(i)-(ii) of my 13 April request. The
Ombudsman's guidance is clear that 9(2)(f)(iv) might apply when disclosure
would prejudice the ability of Ministers and Cabinet to consider the
advice tendered by Ministers and officials (page 5). The Ministry will
need to demonstrate *how* disclosure would prejudice the ability of
Ministers and Cabinet to consider the advice. It has not done this in its
response of 7 May, simply made an assertion.

Please also note page 7 of the Ombudsman's guidance where he states a
Ministry must consider:

"Is there any background material, or information that is purely factual
or comprises bare options (as opposed to the analysis or evaluation of
options)? Such material can often be released without any impact on the
relevant decision making process. If it is severable from the remaining
advisory material, there may be a basis for partial release. As the
Committee that recommended the enactment of the OIA noted, ‘it is by no
means now the case – if it ever was – that the canvassing of options
within government administration must always be protected by
confidentiality’."

The Ministry has not provided - or given any indication that it has
considered doing so - any of this 'purely factual' or 'bare options'
material contained in the material within scope of paragraphs a), (b) and
(c)(i)-(ii).

In responding to this request, please explain - and provide all
information held in relation to - how the Ministry has considered the
application of the public participation 'in the making of administration
of laws and policies' (section 4 purposes of the OIA) when considering
whether section 9(2)(f)(iv) provides good reason to depart from the
section 5 principle of availability. For further guidance on this issue,
see page 11 of the Ombudsman's guidance on Public Interest, available
here:
https://scanmail.trustwave.com/?c=15517&...

 

The Ministry of Health has decided to extend the period of time available
to respond to your request under section 15A of the Official Information
Act 1982 (the Act) as further collation and research and consultation is
required.

 

You can now expect a response to your request on, or before, 8 July 2021.

 

You have the right, under section 28 of the Act, to ask the Ombudsman to
review my decision to extend the time available to respond to your
request.

 

Ngâ mihi

 

OIA Services

Government Services

Office of the Director-General

Ministry of Health

E: [email address]

 

 

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From: OIA Requests


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Attachment H202106233 Decision Letter.pdf
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Kia ora John

 

Please find attached a letter regarding the decision on your request for
official information.

 

Ngā mihi

 

OIA Services

Government Services

Office of the Director-General

Ministry of Health

E: [email address]

 

 

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Virginia Crawford left an annotation ()

One has to wonder why it is taking so long to get this information. Keeping it secret for as long as possible seems to be the aim of the government.

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victor left an annotation ()

"The Ministry has decided to grant your request"

- 'Never interrupt your opponent while they're making a mistake'
Sun Tzu

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From: John Jacobson

Dear Ministry of Health,

On 8 July you wrote to me telling me you had made a decision on my request of 10 May, but that you would not be releasing the information to me until 28 July.

It is now five weeks past that date and you have still not disclosed the information, let alone responded to my request of 13 April 2021 (https://fyi.org.nz/request/15162-certifi...).

These are completely unacceptable breaches of the OIA, and the Ministry is making a mockery of the law's purpose of enabling people to participate in the development of laws and policies.

I understand the additional strain being placed on the Ministry by the pandemic response, but I note both requests were made, and the Ministry committed to providing a response to the second request, before the current outbreak of Covid in August.

This email is a fresh request for information on the progress with responding to both the request of 13 April 2021 and 10 May 2021. As this information will be immediately to hand, I expect to receive an answer far quicker than the outside time limit of 20 working days.

Yours sincerely,

John Jacobson

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From: OIA Requests


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Attachment H202104400 and H202106233.pdf
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Kia ora Mr Jacobson

 

 

Please find attached a letter regarding your requests for official
information on 13 April 2021 (H202104400 refers) and on 10 May 2021
(H202106233 refers).

 

Our sincerest apologies for the delay in providing this information.

 

Under section 28(3) of the Act you have the right to ask the Ombudsman to
review any decisions made under this request. The Ombudsman may be
contacted by email at: [1][email address] or by calling 0800
802 602.

 

 

Ngā mihi

 

OIA Services Team

 

[2]Ministry of Health information releases

[3]Unite against COVID-19

 

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References

Visible links
1. mailto:[email address]
2. https://www.health.govt.nz/about-ministr...
3. https://covid19.govt.nz/

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