Our ref
593939
3 February 2023
Dr Amy S Van Wey Lovatt
By email:
[FYI request #20875 email]
Dear Dr Van Wey Lovatt
Your request for clarification regarding managing unreasonable complainant conduct
I write to you on behalf of the Chief Ombudsman, Peter Boshier. I refer to your email sent via
FYI.org in late 2022, in which you sought information pertaining to the Ombudsman’s guide,
‘
Managing unreasonable complainant conduct – a manual for frontline staff, supervisors and
senior managers’.
As you know, the Chief Ombudsman is not subject to the Official Information Act 1982. However,
successive Ombudsmen have endeavoured to act in accordance with its principles to the greatest
extent they are able, subject to the statutory secrecy obligations set out in the Ombudsman’s
empowering legislation.
Your first question sought:
(1) I request copies of decisions which led to the Ombudsman creating the guidelines
"Managing unreasonable complainant conduct". If this decision is publicly
available, a [reference] to the online decision and where to find it will suffice.
The Ombudsman’s ‘Managing Unreasonable Complainant Conduct Manual’ itself is available
online.1 Within the prelude to the guide, it contains an explanation by the then-Chief
Ombudsman, Dame Beverley Wakem, of her reasons for publishing it. Dame Beverley said:
… As an Ombudsman who hears from thousands of people every year who believe
they have been treated unfairly and unreasonably by a state sector agency, I have
noticed that by the time a person feels 'wronged' enough to make a complaint, often
they have developed a strong emotional link to the problem and to obtaining a
resolution.
… on occasion I have seen a small number of complainants not engaging with agencies
appropriately or reasonably and officials struggling to manage this conduct. Some
complainants can become aggressive and abusive towards officials. They may threaten
harm (to themselves or others). They may be dishonest, provide intentionally
misleading information or deliberately withhold information that is relevant to their
complaint. They may flood agencies with unnecessary phone calls, emails or large
1 Office of the Ombudsman,
Managing unreasonable complainant conduct, published 1 October 2012, available at:
https://www.ombudsman.parliament.nz/resources/managing-unreasonable-complainant-conduct
Office of the Ombudsman | Tari o te Kaitiaki Mana Tangata
amounts of irrelevant information. They may insist on remedies they are not entitled
to or outcomes that are not possible or appropriate.
The Parliamentary Ombudsman's offices in Australasia acknowledged this was
becoming a problem for state sector agencies and their officials to deal with.
Therefore, we supported the New South Wales' Ombudsman's initiative to lead a two-
stage joint project on managing unreasonable complainant conduct in 2006. This
project sought to identify ways in which to minimise the effect of unreasonable
complainant conduct on both public sector organisations and Ombudsman's offices,
their staff, services, time and resources.
The outcome of this project is this practice manual. It is intended to help agencies
employ a systematic and consistent approach to managing their interactions with
complainants who exhibit unreasonable complainant conduct by offering a framework
of strategies, and providing sound, sensible advice on how to better manage responses
to these complainants. It is an invaluable tool for helping staff to resolve difficult
situations in the most efficient and effective manner possible.
You also made the following, seemingly related queries:
(2) Does the Ombudsman's guidelines "Managing unreasonable complainant
conduct" sanctioned, either explicitly or implicitly, unlawful interception of
private communications as defined under Section 216A and 216B of the Crimes
Act 1961?
The Crimes Act describes the unlawful interception of personal communications
as the interception of personal communications without the consent of the
sender (e.g., patient) to the intended recipient (e.g., specified physician) when
the individual who is intercepting the communications does not have statutory
authority as set out in s 216B of the Crimes Act 1961. Statutory permission is
restricted individuals and must be authorized under acts such as the Search and
Surveillance Act, Corrections Act, and Intelligence and Security Act.
(3) If the Ombudsman' guidelines "Managing unreasonable complainant conduct"
sanction, explicitly or implicitly, the unlawful interception of communications, I
respectfully request that you provide the page number and section number.
(4) Has the Ombudsman, either explicitly or implicitly, made a decision in which they
sanctioned the unlawful interception of personal communications, as defined
under the Crimes Act 1961?
(5) In the event that the Ombudsman has sanctioned, either explicitly or implicitly,
the interception of private communications without the consent of the individual,
or the intended recipient (see sections 216A-B of the Crimes Act), I request a copy
to the decision or reference to where the decision can be found publicly.
It is not entirely clear whether you mean ‘sanctioned’ in the sense of an Ombudsman having
warranted or authorised the relevant behaviours, or whether you are seeking information about
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Office of the Ombudsman | Tari o te Kaitiaki Mana Tangata
instances where an Ombudsman has investigated a matter and has subsequently ‘imposed a
sanction’ (or similar) on agencies for having behaved unreasonably or unlawfully.
Given the wider context of these requests, however, including very similar requests you have
made to the Police, the Privacy Commissioner, and Te Whatu Ora,2 and requests you previously
made on your earlier FYI account,3 it appears you mean the former. I therefore address your
questions on that basis.
I confirm it is simply not the role of an Ombudsman to permit or to authorise any search or
surveillance functions, lawful or otherwise, by or on behalf of executive government agencies.
Information about an Ombudsman’s roles, functions and powers can be found in the Chief
Ombudsman’s most recent annual report.4
To the extent that you may be interrogating, directly or indirectly, the contents of the
Ombudsman’s ‘Managing Unreasonable Complainant Conduct’ manual, you may review the
manual for yourself at the above link. For obvious reasons, nothing in that manual is intended to
endorse, recommend, or warrant behaviour that is otherwise unlawful. Indeed, a key and
pervasive message throughout the manual is that agencies should do their best to be fair and
reasonable even when presented with unreasonable behaviour, and that all complainants should
be treated with fairness and respect.
Yours sincerely
Yu-Lina George
Acting Manager – Strategic Advice
2
https://fyi.org.nz/user/as_van_wey_2 3
https://fyi.org.nz/user/amy_s_van_wey_lovatt 4 Office of the Ombudsman, Annual Report 2021/2022, 21 October 2022, available at:
https://www.ombudsman.parliament.nz/resources/chief-ombudsmans-annual-report-20212022
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