22 July 2021
45 Pipitea St
PO Box 805
Wellington 6140
Adam Irish
Phone +64 4 495 7200
Fax +64 4 495 7222
Via FYI.org.nz
: fyi-request-15811-
Websi
te dia.govt.nz
[email address]
Tēnā koe Adam
Official Information Act 1982 (OIA) request dated 16 June 2021 (ref 20/21 0728)
Thank you for your OIA request dated 16 June 2021 to the Department of Internal Affairs
(the Department) regarding its investigation in 2001-02 relating to allegations made against
Mr Meng Foon. We refer to our letter of 9 July 2021 advising you of the extension to the
timeframe for our response until 28 July 2021.
You requested –
“Any draft press release regarding Mr Foon being deemed an unsuitable person to be
involved in running any gaming activities.
Any advice or reports provided to Ministers regarding Mr Foon.
The full process that DIA undertakes when assessing whether to prosecute an individual
and what independent checks and balances it had in place to ensure the DIA wasn't
derelict or negligent in its duty to prosecute Mr Meng Foon.
Why documentation went missing regarding Mr Meng Foon.
If at the time of the appointment of Mr Meng Foon the DIA had been consulted on his
appointment and any information it provided the appointing Minister.
Any document, advice or report current or historical providing a no surprises disclosure
on Mr Meng Foon to Ministers.”
The Department has addressed each of your queries individually below.
Draft press release regarding Mr Foon
The Department has identified a draft media release regarding Mr Foon from 2001. This
document is being withheld in full under section 9(2)(g)(i) of the OIA on the basis that its
release would inhibit the future exchange of free and frank opinions, and that such inhibition
would prejudice the effective conduct of public affairs.
The Department has considered whether the withholding of the document under section
9(2)(g)(i) is outweighed by any public interest considerations under section 9(1) of the OIA.
The Department acknowledges the public interest in the transparent conduct of public
affairs and in holding officials to account for their actions. In this case, however, it has been
decided that the public interest in favour of disclosure of the document in question does not
outweigh the need to withhold for the reasons set out in section 9(2)(g)(i) of the OIA.
Advice or reports provided to Ministers regarding Mr Foon, including current or historical
‘no surprises’ disclosures
The Department has reviewed its records for any documents that would fall in scope of
these parts of your request.
Outside the context of the recent media interest in the 2001 investigation, the Department
has not provided any advice or reports to Ministers about Mr Foon.
In early 2020, the Department received an OIA request about the 2001 investigation, and
since then, the Department has kept the Minister of Internal Affairs informed of the media
interest in the historical investigation. This has included sending draft copies of OIA
responses to the Minister’s Office for the Minister’s information, as well as providing the
Minister with a copy of the communications plan (with associated talking points for the
Minister) prior to the story’s publication on Stuff. The Minister of Justice and the Minister for
Diversity, Inclusion and Ethnic Communities were also provided with copies of the
communications plan with tailored talking points should they be questioned about the
media story.
These documents are being withheld under the following sections of the OIA:
• section 9(2)(g)(i), where the withholding of the information is necessary to maintain
the effective conduct of public affairs through the free and frank expression of
opinions by or between or to Ministers of the Crown or members of an organisation
or officers and employees of any public service agency or organisation in the course
of their duty; and
• section 9(2)(f)(iv), where the withholding of the information is necessary to maintain
the constitutional conventions for the time being which protect the confidentiality of
advice tendered by Ministers of the Crown and officials.
However, in the interests of transparency, the Department is providing you with summaries
of the communication with Ministers regarding the recent OIA requests and media interest,
which can be found at Appendix A.
Before deciding to withhold the original documents under sections 9(2)(g)(i) and 9(2)(f)(iv),
the Department considered whether the withholding of information was outweighed by any
public interest considerations under section 9(1) of the OIA. To the extent that there is a
public interest in the disclosure of the information requested, the Department considers that
it is satisfied by the provision of the above-referenced summary information.
Page 2 of 9
Process for assessing whether to prosecute an individual
The Department does not hold any documents outlining the decision-making process
followed in 2001 when Mr Foon was investigated. It is also to be noted that the investigation
related to alleged offences under the Gaming and Lotteries Act 1977 (the 1977 Act), which
was repealed and replaced by the Gambling Act 2003 (the 2003 Act). The Department has
carried out searches for its prosecution policy under the 1977 Act and has not located any
documents that relate to such a policy. Therefore, to the extent that your request refers to
historical processes followed in 2001, it is refused in reliance on section 18(g) of the OIA: the
information requested is not held by the Department.
The Department’s current prosecution policy, under the 2003 Act, contains details about the
process undertaken when considering or undertaking a prosecution under any of the
enactments the Department enforces. You can find more information about this policy
(including a copy of the policy itself) on the Department’s website:
https://www.dia.govt.nz/Prosecution-Policy
Decisions to prosecute are made in consultation with the Department’s Legal Services team,
which has prosecutorial discretion and is independent from the investigating unit. However,
the Department’s searches of its records for the 2001-02 period have not produced any
documents that show that its Legal Services team was consulted at any time during or after
the investigation into the allegations against Mr Foon in 2001-02.
Any decision to prosecute under the current prosecution policy must be made in accordance
with the overarching framework that applies to any government agency under the Solicitor-
General’s Prosecution Guidelines, which can be found here:
https://www.crownlaw.govt.nz/assets/Uploads/Prosecution-
Guidelines/ProsecutionGuidelines2013.pdf
Any prosecution made in accordance with the above guidelines must meet the required
evidential threshold of
‘beyond reasonable doubt’ prior to commencement.
Missing documentation regarding investigation into Mr Foon
In your request you asked for clarity on “why documentation went missing regarding Mr
Meng Foon”. In the documentation the Department still holds on this matter, other records
are referenced which are no longer able to be located. The Department carried out
extensive searches for the remaining documents relating to the investigation, including
searching its electronic and paper file records. It also sought to undertake a search through
the email accounts of former staff of the Department, but this was unsuccessful.
Despite extensive efforts to locate the remaining documentation regarding the 2001-02
investigation the Department was not able to do so. The Department notes that its record-
keeping and systems have greatly improved over the last two decades.
Page 3 of 9
Any consultation with the Department on Mr Foon’s appointment
You also asked whether, at the time of Mr Foon’s appointment, the Department had been
consulted, and requested any information provided to the appointing minister. The
Department understands your request as referring to Mr Foon’s appointment as Race
Relations Commissioner in 2019. The Department can confirm that it was not consulted on
Mr Foon’s appointment to the role of Race Relations Commissioner and did not provide any
information to the appointing minister.
Therefore, to the extent that this part of your request is for documentation, it is refused in
reliance on section 18(g) of the OIA: the information requested is not held by the
Department.
If you are dissatisfied with the Department’s decision on your request for information, you
have the right, under section 28 of the OIA, to make a complaint to the Office of the
Ombudsman. The Office of the Ombudsman can be contacted by phone on 0800 802 602,
via post at PO Box 10152 Wellington or via email to [email address].
Ngā mihi
Dave Robson
Director Gambling
Page 4 of 9
Appendix A
Document
Title
Date
Summary
number
Document 1
Email from
23/04/2020
Title: “Consultation on the proposed response to
Department official
Stuff’s Official Information Act 1982 (the “OIA”)
to Minister of
request”
Internal Affairs'
In this email, Rachel Chrystall (Senior Advisor
Office (2
Official Correspondence) emails a copy of a draft
attachments)
OIA response to the Minister of Internal Affairs’
Private Secretary and notes the deadline for any
feedback from the Minister’s Office.
Document 2
Ministerial
30/04/2020
Title: “Departmental Official Information Act
coversheet
request”
This document is a coversheet used when sending
a copy of an OIA response to the Minister’s Office
for consultation. It describes the information
requested and records the Department’s proposed
response. The document contains the following
headings:
•
Information falling within the request
•
Proposed response
•
Consultation
•
Risks and mitigation
Document 3
Draft OIA response
23/04/2020
Title: “Official Information Act request (Ref
to journalist
OIA19200526)”
This document is the draft OIA response to the
journalist who requested information regarding an
investigation into Mr Foon in 2001. The
Department withheld all documentation relating to
the investigation under section 9(2)(g)(i) of the OIA.
Document 4
Email from Director
14/04/2021
Title: “Changing timing on Foon matter”
Gambling to Minister
In this email, the Director Gambling emails officials
of Internal Affairs'
at the Office of Ethnic Communities, Public Service
Office, Minister of
Commission, Ministry of Justice, and the Minister
Justice's Office, and
of Internal Affairs’ Office, as well as a number of
other officials
DIA officials, to update them on the timing of
release to Stuff of summary information relating to
the Mr Foon investigation in 2001.
Document 5
Email from
21/04/2021
Title: “OIA response to [journalist name] for
Department official
review”
to Minister of
In this email, Caleb Smith (Senior Business Advisor)
Internal Affairs'
emails a copy of a draft OIA response to the
Office (2
Minister of Internal Affairs’ Private Secretary. The
attachments)
email briefly summarises the type of information
being withheld in the OIA response and advises the
due date for any comments from the Minister’
Office.
Page 5 of 9
Document 6
Draft OIA response
28/04/2021
Title: “Official Information Act (OIA) request dated
to journalist
5 March 2021 (ref OIA 20/21 0494)”
This document is a draft OIA response to the same
journalist that made the January 2020 OIA request
referenced in the summary of Document 3 above.
In the 2021 request, the journalist requested all
correspondence referencing their earlier OIA
request. This response letter lists all the documents
in scope of the request, noting which ones are
being provided to the requestor, and any
redactions made to the documents.
Document 7
Documents for
12/02/2020
No title, documents are numbered as outlined in
release to journalist
-
the OIA response (i.e. ‘Document 1’ etc.)
with draft redactions 28/04/2020 This file contains copies of the correspondence
noted
generated in responding to the journalist’s
previous OIA request on this topic, with proposed
redactions noted. The correspondence in question
involves the officials tasked with drafting the 2020
OIA response, and details the search for
documents, review and consultation on the
response, and final response to the journalist.
Document 8
Email from
7/05/2021
Title: “Release of information to [journalist name]
Department official
and [withheld under section 9(2)(a)] – Comms
to Minister of
plan”
Internal Affairs'
In this email, Emma Atkins (Acting Manager
Office (7
Accountability & Principal Advisor Official
attachments)
Correspondence) emails a number of attachments
to the Minister of Internal Affairs’ Private
Secretaries in relation to release of information on
Mr Foon. This included details on the release of
summary information to a journalist at the
direction of the Ombudsman, as well as the OIA
response summarised above (Documents 6 and 7).
This email also attached communications plans and
talking points for the Minister of Internal Affairs, as
well as the Minister of Justice and Minister for
Diversity, Inclusion and Ethnic Communities.
Document 9
Draft letter to
10/05/2021
Title: “Update regarding Official Information Act
journalist regarding
1982 (OIA) request dated 6 January 2020 (ref OIA
Ombudsman
19/20 0526) and subsequent Ombudsman
investigation
investigation (525338)”
This document is a draft of the letter sent to the
journalist who made the 2020 OIA request. This
letter referred to the 2020 OIA request, and
summarises the Department’s decision on that
request, refers to the subsequent Ombudsman
investigation, and provides the journalist with
further summary information on the investigation
into Mr Foon. Below are the headings in the letter,
and a summary of the information contained under
each heading.
Page 6 of 9
Department response to your OIA request
This section summarises the Department’s
response to the 2020 OIA request.
Ombudsman investigation
This section refers to the journalist’s subsequent
complaint to the Ombudsman and notes that the
Ombudsman agreed with the majority of the
Department’s decision on the OIA request but
recommended the release of further summary
information.
Release of additional summary information
This section contains the additional summary
information regarding the documents detailing the
2001 investigation into Mr Foon.
Document 10
Draft OIA response
12/05/2021
Title: “Official Information Act 1982 (OIA) request
to journalist
dated 5 March 2021 (ref OIA 20/21 0494)”
This document is a draft OIA response to the same
journalist that made the January 2020 OIA request
referenced in the summary of Document 3 above.
In the 2021 request, the journalist requested all
correspondence referencing their earlier OIA
request. This response letter lists all the documents
in scope of the request, noting which ones are
being provided to the requestor, and any
redactions made to the documents.
Document 11
Documents for
12/02/2020
No title, documents are numbered as outlined in
release to journalist
-
the OIA response (i.e. ‘Document 1’ etc.)
with draft redactions 28/04/2020 This file contains copies of the correspondence
noted
generated in responding to the journalist’s
previous OIA request on this topic, with proposed
redactions noted. The correspondence in question
involves the officials tasked with drafting the 2020
OIA response, and details the search for
documents, review and consultation on the
response, and final response to the journalist.
Document 12
Details of this document are withheld under section 9(2)(a) of the OIA.
Document 13
Communications
undated
Title: “Communications Plan: Meng Foon OIA
Plan and talking
release”
points for the
This document is the Department’s
Minister of Internal
communications plan associated with the release
Affairs
of information on the Mr Foon 2001 investigation,
including the summary information, as well as the
response to the 2021 OIA request. Below are the
headings in this document, and a summary of the
information contained under each heading.
Page 7 of 9
Background/situation analysis
This section of the document summarises the
media interest in the 2001 investigation, and
outlines the events since the 2020 OIA request,
including detailing the complaint to the
Ombudsman, decision of the Ombudsman, and
further 2021 OIA request from the journalist.
Outcomes and objectives
This section details the communication goals of the
Department with respect to this matter.
Target audience
This section details the internal and external
audiences to which this communications plan
relates.
Key messages
This section details the key messages for both
external and internal audiences.
Tools and tactics
This section contains a bulleted list of actions,
including the preparation of a reactive written
statement and talking points for the Minister of
Internal Affairs. It also outlines the need to keep
the Minister and Chief Executive’s office informed
of statements being sent out.
Timing and responsibilities
This section contains a timeline of actions which
details when documents or messaging will be sent
to various parties.
Risk analysis
This section outlines various risks associated with
this matter, and details impact and potential
mitigations.
Media response
This contains information for provision to the
media.
Reactive response to other media
This section contains further information for
provision to any additional media requests for
comment.
Response to media – escalating media attention
This section contains further information for
provision to media in the event of additional media
attention.
Talking points
This section contains talking points for the Minister
of Internal Affairs, Minister of Justice, and Minister
for Diversity, Inclusion and Ethnic Communities
should they be approached for comment.
Page 8 of 9
Document 14
Communications
undated
No title
Plan and talking
This document is an extract from the
points for the
communications plan summarised above and
Minister of Justice
contains the sections of the above document for
provision to the Minister of Justice’s Office. The
following sections of the communications plan are
included in this document:
•
Background/situation analysis
•
Media response
•
Reactive response to other media
•
Talking points (For Minister of Justice)
Document 15
Communications
undated
No title
Plan and talking
This document is an extract from the
points for the
communications plan summarised above and
Minister of Diversity,
contains the sections of the above document for
Inclusion and Ethnic
provision to the Minister for Diversity, Inclusion
Communities
and Ethnic Communities’ Office. The following
sections of the communications plan are included
in this document:
•
Background/situation analysis
•
Media response
•
Reactive response to other media
•
Talking points (For Minister for Diversity,
Inclusion and Ethnic Communities)
Page 9 of 9