Dear Ministry of Justice,

This is a request under the Official Information Act 1982.

On the Stuff website today, it is reported that the Ministry has refused to disclose, in response to an OIA request, submissions received from three political parties to the consultation conducted by the Ministry on reform of the law on donations to political parties. (https://consultations.justice.govt.nz/po...)

The report can be found here:
https://www.stuff.co.nz/national/politic...

The report indicates the Ministry withheld the submissions from political parties in reliance on section 9(2)(ba) of the OIA (information supplied in confidence).

The Ombudsman's guide to withholding information received in confidence states:

"Consulting third parties
It is a good idea to consult the other party to the confidential relationship, so that their views can be taken into account in reaching a decision, and to let them know before any information is actually released.

The third party’s views are relevant to the agency’s decision whether to withhold or release, but they are not determinative. The third party cannot veto disclosure. The agency must consider what the third party has to say and reach its own independent view on the applicability of one or both limbs of the confidentiality withholding ground, and the countervailing public interest in release."
(Source: https://www.ombudsman.parliament.nz/reso...)

I note that on the Ministry's page for the consultation, it advised submitters of the following:

"We may need to release your feedback after an Official Information Act 1982 (OIA) request. We can withhold personal details under the OIA, including your name and address.

If you do not want us to release any information in your feedback, please state this clearly when you send it to us and explain why. For example, some information may be commercially sensitive or personal. We’ll take your views into account when we respond to OIA requests."
(Source: https://consultations.justice.govt.nz/po...)

Please provide me with the following information:

1) Copies of the submissions received in response to the consultation from all political parties.

2) Copies of the Ministry's enquiries to the political parties asking their views on release of their submissions in response to OIA requests received from any other requester seeking copies of the submissions.

3) Copies of the responses received by the Ministry from political parties in response to the enquiries made by the Ministry about the OIA requests it received for copies of their submissions.

4) A list of, and copies of, all emails, memos, briefings etc sent and received by people working for the Ministry of Justice, including consultation with the Minister of Justice or any of her officials, on the OIA requests received for copies of the submissions received from political parties.

5) If the OIA requests for copies of submissions were discussed orally with the Minister or any of her officials, the information held, in writing or in the heads of Ministry officials, about any such conversation(s).

6) Copies of all other information generated within the Ministry in the course of processing the OIA requests for copies of the submissions received from political parties.

7) The date on which the Ministry will publish the rest of the submissions it received in response to the consultation on political donations.

In considering this request, the Ministry's attention is drawn to the 2013 opinion of Ombudsman David McGee on cases 302561 and 302600, relating to the withholding of submissions to government on a matter of public policy, in particular pages 14-15. The Ombudsman concluded that submissions to government on a matter of public policy should be released. Dr McGee said:

"These are submissions on a contentious policy matter designed to persuade the Government to the view of the submitters. They do not have the quality of
confidential communications."

(source: https://www.ombudsman.parliament.nz/reso...)

The Ministry's attention is also drawn to the strong public interest in release that is supported by section 4(a)(i) of the OIA - "to enable their more effective participation in the making and administration of laws and policies." Adequately informed public participation in the debate on reform of the law on donations to political parties can not be enabled if the Ministry refuses to disclose the submissions it received from political parties. This public interest if further buttressed by the statutory duty on the Ministry's Chief Executive under section 12(1)(d) of the Public Service Act 2020 "to foster a culture of open government", and there are other public interest factors favouring release as well.

Under section 16 of the OIA, my preference is to receive this information as text-searchable PDF files, without any watermark placed across the information in the documents.

Under section 19(a)(ii) of the OIA if the Ministry refuses any part of this request, I further request that it provides me with a detailed explanation of the grounds in support any reasons for withholding that it cites in the refusal, and the precise public interest factors considered and how they have been weighed by the decision maker.

Yours faithfully,

Andrew Ecclestone

Kia ora Ellen,

Thank you for your acknowledgement of receiving my request.

I would like to clarify that item one of my request - for copies of submissions received in response to the consultation from all political parties - should be interpreted to include any notes made by Ministry officials of oral submissions, representations, or comments made by representatives of any political party in a meeting with Ministry officials, either in person or online, in the context of the Ministry's consultation on political donations.

Yours sincerely,

Andrew Ecclestone

Kia ora Annie and the Ministry of Justice,

Thank you for your email of 28 July 2022. Two issues arise from it.

First, the Ministry has said that the scope of parts 4 and 6 of my request of 20 July “is very broad”.
It is difficult to understand whether that is accurate without knowing how many other OIA requests the Ministry has received for copies of the submissions received from political parties.

If the number of OIA requests for copies of the submissions is small, then the scope is not ‘very broad’. If the Ministry has received lots of OIA requests for copies of the submissions from political parties, then the scope is larger. At the moment I know of only 3 OIA requests for copies for of the submissions received from political parties (Bryce Edwards, Andrea Vance, and one other person), and it is difficult to see how this would result in parts 4 and 6 of my request constituting 'very broad' scope.

Please tell me how many OIA requests the Ministry has received for copies of the submissions from political parties, and then I can make an informed decision on whether to narrow the scope of my request.

Second, the Ministry has said that “What we believe you are interested in is the Ministry’s reasoning behind withholding the three submissions from political parties.”

I do wish to understand this, yes. However, the purpose of parts 4 and 6 of my requests is different. I wish to gain an accurate understanding of how the previous OIA requests have been processed and decided by the Ministry, not just the reasons for withholding the information. For example, the information requested in those parts of my request will help me know who was involved in the decision making on the previous requests, what information was put before them, and if the Minister’s office was consulted or otherwise involved in the course of the processing of these previous requests. A summary, or “explanation of [the Ministry’s] reasoning” is not an acceptable substitute for seeing copies of the information generated within the scope of parts 4 and 6 of my request.

So, the question of whether I narrow my request depends on your answer to the additional request for information above, namely: how many OIA requests the Ministry has received for copies of the submissions from political parties. I trust that it will be ‘reasonably practicable’ for the Ministry to provide me with this information much sooner than 20 working days from today.

Ngā mihi,

Andrew

Tēna koē Ministry of Justice,

Thank you for your letter of 17 August 2022. My apologies for not responding sooner – I was travelling last week, and have been catching up on emails since then.

The Ministry has stated that it received 6 OIA requests for copies of the submissions received from political parties. Thank you for providing me with this information. It also stated that the number of emails relating to processing these requests runs into ‘the hundreds’ for those 'to do with administrative matters'.

The Ministry’s letter segments the information covered by parts 4 and 6 of my request into three categories:
1) Administrative matters
2) Discussions about the substantive issues regarding release, and
3) Consultation with the Minister’s office.

In respect of parts 4 and 6 of my request of 20 July 2022 I am willing to remove the information in the first part of the Ministry’s categorisation ('administrative matters') from the scope of my request for copies of the information itself. However, I would still like to receive the actual information, not a summary, for the second two categories: discussions about substantive issues regarding release, and consultation with the Minister’s office. If my agreement to remove the information in the 'administrative matters' categorisation does not remove the possibility of the Ministry refusing part of my request under section 18(f) of the Act, please explain why and provide me with information that would enable me to consider further narrowing my request.

Please bear in mind that part 4 of my request seeks a list of all the emails memos, briefings etc, as well as the information itself. Having done the work to categorise the emails within the scope of the request, presumably the Ministry will be able to provide a list that also includes the emails and other information falling within the first part of its categorisation, ‘administrative matters’. This will enable me to be more specific if I later need to seek any of the information categorised by the Ministry as ‘administrative matters’.

The Ministry’s email of 28 July 2022 suggested that “some information is likely to be withheld under s 9(2)(h) (legal privilege) and/or s 9(2)(g)(i) (free and frank expression of opinion) of the OIA.”

If the Ministry does decide to withhold information from me in reliance of any of the Act’s withholding grounds, I remind it that my original request also made a request citing section 19(a)(ii) of the OIA to be provided with the grounds in support of any reasons for withholding. I expect the Ministry’s response to clearly set out what the grounds are for claiming any of the reasons for withholding, the public interest factors favouring release it considered when making its decision on each aspect of withholding, and how it reached any conclusion that it did or did not outweigh any of the reasons for withholding specified in section 9(2) of the Act.

Ngā mihi,

Andrew Ecclestone