14 Aug 2023 Legally privileged advice on Human Rights
Erika Whittome made this Official Information request to Simeon Brown
Response to this request is delayed. By law, Simeon Brown should normally have responded promptly and by (details and exceptions)
From: Erika Whittome
Dear Simeon Brown,
I refer to this release which has lots of redacted legal advice:
https://www.health.govt.nz/system/files/...
Much of the content appears to be redacted claiming legal privilege but it's public health advice impacting 5 million New Zealanders. Would you kindly provide the information unredacted in this bundle that was legally privileged?
Yours faithfully,
Erika Whittome
From: Simeon Brown (MIN)
Simeon Brown
Thank you for contacting the Hon Simeon Brown, Minister of Health,
Minister for State Owned Enterprises, and Minister for Auckland.
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References
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2. mailto:[email address]
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4. mailto:[email address]
5. http://www.dpmc.govt.nz/our-business-uni...
6. https://www.healthpoint.co.nz/
7. https://bookmyvaccine.health.nz/
8. https://www.tewhatuora.govt.nz/corporate...
9. https://www.hdc.org.nz/making-a-complain...
From: Simeon Brown (MIN)
Simeon Brown
Dear Erika,
Thank you for your Official Information Act 1982 (the Act) request, received on XXX, in which you requested the following information:
"I refer to this release which has lots of redacted legal advice:
https://urldefense.com/v3/__https://www....
Much of the content appears to be redacted claiming legal privilege but it's public health advice impacting 5 million New Zealanders. Would you kindly provide the information unredacted in this bundle that was legally privileged?"
Your request will be answered within the provisions of the Official Information Act.
Kind regards,
Office of Hon Simeon Brown
Minister of Health, Minister for State Owned Enterprises, Minister for Auckland
Email: [email address]
Private Bag 18041, Parliament Buildings, Wellington 6160, New Zealand
-----Original Message-----
From: Erika Whittome <[FOI #31962 email]>
Sent: Saturday, 9 August 2025 4:58 PM
To: Simeon Brown (MIN) <[email address]>
Subject: Official Information request - 14 Aug 2023 Legally privileged advice on Human Rights
Dear Simeon Brown,
I refer to this release which has lots of redacted legal advice:
https://urldefense.com/v3/__https://www....
Much of the content appears to be redacted claiming legal privilege but it's public health advice impacting 5 million New Zealanders. Would you kindly provide the information unredacted in this bundle that was legally privileged?
Yours faithfully,
Erika Whittome
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[FOI #31962 email]
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From: Simeon Brown (MIN)
Simeon Brown
Good afternoon,
Please find a letter regarding your request for information attached.
Kind regards
Office of Hon Simeon Brown
Minister of Health, Minister for State Owned Enterprises, Minister for
Auckland
Email: [1][email address]
Private Bag 18041, Parliament Buildings, Wellington 6160, New Zealand
References
Visible links
1. mailto:[email address]
From: OIA Requests
Kia ora Erika
Thank you for your request under the Official Information Act 1982 (the
Act), received by the Ministry of Health on 18 August 2025. You requested:
“I refer to this release which has lots of redacted legal advice:
https://www.health.govt.nz/system/files/... material and key
advice covid-19 public health measures final bundle.pdf
Much of the content appears to be redacted claiming legal privilege but
it's public health advice impacting 5 million New Zealanders. Would you
kindly provide the
information unredacted in this bundle that was legally privileged?”
The reference number for your request is H2025071527. As required under
the Act, the Ministry will endeavour to respond to your request no later
than 20 working days after the day your request was
received: [1]http://www.ombudsman.parliament.nz/
If you have any queries related to this request, please do not hesitate to
get in touch ([2][email address]).
Ngâ mihi
OIA Services Team
[3]Ministry of Health information releases
****************************************************************************
Statement of confidentiality: This e-mail message and any accompanying
attachments may contain information that is IN-CONFIDENCE and subject to
legal privilege.
If you are not the intended recipient, do not read, use, disseminate,
distribute or copy this message or attachments.
If you have received this message in error, please notify the sender
immediately and delete this message.
****************************************************************************
References
Visible links
1. http://www.ombudsman.parliament.nz/
2. mailto:[email address]
3. https://www.health.govt.nz/about-ministr...
hide quoted sections
From: OIA Requests
Kia ora Erika
Please find attached a letter regarding your request for information.
Ngā mihi
OIA Services Team
Ministry of Health | Manatū Hauora
M[1]inistry of Health information releases
****************************************************************************
Statement of confidentiality: This e-mail message and any accompanying
attachments may contain information that is IN-CONFIDENCE and subject to
legal privilege.
If you are not the intended recipient, do not read, use, disseminate,
distribute or copy this message or attachments.
If you have received this message in error, please notify the sender
immediately and delete this message.
****************************************************************************
References
Visible links
1. https://www.health.govt.nz/about-ministr...
hide quoted sections
From: Erika Whittome
Dear Phil Knipe,
Your response has not valid email link in it, so instead am discussing the withheld information in this forum.
This request highlights a recurring and serious issue under the Official Information Act 1982 (OIA): the withholding of legal advice on matters of profound public significance, in this case Covid-19 measures affecting the entire population of Aotearoa New Zealand.
1. Legal Grounds Claimed
• The Ministry of Health has previously withheld large portions of advice under s 9(2)(h) OIA (to maintain legal professional privilege).
• While this is a recognised withholding ground, it is not absolute. Agencies must still consider s 9(1) — whether the public interest in disclosure outweighs the need to withhold.
2. Why Public Interest is Strong Here
• Covid-19 restrictions curtailed fundamental rights (movement, assembly, employment, bodily autonomy).
• These were not minor administrative matters but unprecedented legal interventions in citizens’ daily lives.
• New Zealanders are entitled to understand not just the political reasoning but also the legal foundations used to justify such measures.
3. Common Issues in Practice
• Agencies often apply blanket redactions, treating privilege as an absolute shield.
• However, not every part of a document is privileged. Factual background, summaries of evidence, or policy considerations can usually be released without undermining privilege.
• In some cases, the Crown itself has already referred publicly to the existence and substance of advice, which can amount to a waiver of privilege.
4. Ombudsman Guidance
• The Ombudsman has previously emphasised that legal privilege must still be balanced against transparency obligations.
• While it is rare to see full legal opinions released, the Ombudsman has recommended partial release, disclosure of document titles, dates, or summaries where the public interest is strong.
Would you kindly reconsider your decision to withhold the guidance before I lodge a complaint with the Ombudsman?
Yours sincerely,
Erika Whittome
From: OIA Requests
Kia ora Erika
The Ministry stands by the response issued.
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
Ministry of Health | Manatū Hauora
M[2]inistry of Health information releases
--------------------------------------------------------------------------
From: Erika Whittome <[FOI #31962 email]>
Sent: Sunday, 24 August 2025 13:36
To: OIA Requests <[email address]>
Subject: Re: Response to your request for information, ref: H2025071527
CRM:0001260
Dear Phil Knipe,
Your response has not valid email link in it, so instead am discussing the
withheld information in this forum.
This request highlights a recurring and serious issue under the Official
Information Act 1982 (OIA): the withholding of legal advice on matters of
profound public significance, in this case Covid-19 measures affecting the
entire population of Aotearoa New Zealand.
1. Legal Grounds Claimed
• The Ministry of Health has previously withheld large portions of advice
under s 9(2)(h) OIA (to maintain legal professional privilege).
• While this is a recognised withholding ground, it is not absolute.
Agencies must still consider s 9(1) — whether the public interest in
disclosure outweighs the need to withhold.
2. Why Public Interest is Strong Here
• Covid-19 restrictions curtailed fundamental rights (movement, assembly,
employment, bodily autonomy).
• These were not minor administrative matters but unprecedented legal
interventions in citizens’ daily lives.
• New Zealanders are entitled to understand not just the political
reasoning but also the legal foundations used to justify such measures.
3. Common Issues in Practice
• Agencies often apply blanket redactions, treating privilege as an
absolute shield.
• However, not every part of a document is privileged. Factual background,
summaries of evidence, or policy considerations can usually be released
without undermining privilege.
• In some cases, the Crown itself has already referred publicly to the
existence and substance of advice, which can amount to a waiver of
privilege.
4. Ombudsman Guidance
• The Ombudsman has previously emphasised that legal privilege must still
be balanced against transparency obligations.
• While it is rare to see full legal opinions released, the Ombudsman has
recommended partial release, disclosure of document titles, dates, or
summaries where the public interest is strong.
Would you kindly reconsider your decision to withhold the guidance before
I lodge a complaint with the Ombudsman?
Yours sincerely,
Erika Whittome
-----Original Message-----
Kia ora Erika
Please find attached a letter regarding your request for information.
Ngā mihi
OIA Services Team
Ministry of Health | Manatū Hauora
M[1]inistry of Health information releases
References
Visible links
1. [3]https://www.health.govt.nz/about-ministr...
-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #31962 email]
Disclaimer: This message and any reply that you make will be published on
the internet. Our privacy and copyright policies:
[4]https://aus01.safelinks.protection.outlo...
If you find this service useful as an Official Information officer, please
ask your web manager to link to us from your organisation's OIA or LGOIMA
page.
-------------------------------------------------------------------
****************************************************************************
Statement of confidentiality: This e-mail message and any accompanying
attachments may contain information that is IN-CONFIDENCE and subject to
legal privilege.
If you are not the intended recipient, do not read, use, disseminate,
distribute or copy this message or attachments.
If you have received this message in error, please notify the sender
immediately and delete this message.
****************************************************************************
References
Visible links
1. mailto:[email address]
2. https://www.health.govt.nz/about-ministr...
3. https://www.health.govt.nz/about-ministr...
4. https://fyi.org.nz/help/officers
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The legally privileged parts of public health advice - especially Human Rights
To Simeon Brown by Erika Whittome
The legally privileged parts of public health advice
To Department of the Prime Minister and Cabinet by Erika Whittome
SPENCER JONES left an annotation ()
Annotation – Redacted Legal Advice and the OIA
This request highlights a recurring and serious issue under the Official Information Act 1982 (OIA): the withholding of legal advice on matters of profound public significance, in this case Covid-19 measures affecting the entire population of Aotearoa New Zealand.
1. Legal Grounds Claimed
• The Ministry of Health has previously withheld large portions of advice under s 9(2)(h) OIA (to maintain legal professional privilege).
• While this is a recognised withholding ground, it is not absolute. Agencies must still consider s 9(1) — whether the public interest in disclosure outweighs the need to withhold.
2. Why Public Interest is Strong Here
• Covid-19 restrictions curtailed fundamental rights (movement, assembly, employment, bodily autonomy).
• These were not minor administrative matters but unprecedented legal interventions in citizens’ daily lives.
• New Zealanders are entitled to understand not just the political reasoning but also the legal foundations used to justify such measures.
3. Common Issues in Practice
• Agencies often apply blanket redactions, treating privilege as an absolute shield.
• However, not every part of a document is privileged. Factual background, summaries of evidence, or policy considerations can usually be released without undermining privilege.
• In some cases, the Crown itself has already referred publicly to the existence and substance of advice, which can amount to a waiver of privilege.
4. Ombudsman Guidance
• The Ombudsman has previously emphasised that legal privilege must still be balanced against transparency obligations.
• While it is rare to see full legal opinions released, the Ombudsman has recommended partial release, disclosure of document titles, dates, or summaries where the public interest is strong.
5. Next Steps if Refused
• If the Ministry’s forthcoming response relies solely on s 9(2)(h) without showing a genuine public-interest balancing test, that can form the basis of an Ombudsman complaint.
• Complainants may also argue that advice shaping Cabinet-level decisions during a national emergency requires greater transparency than routine legal opinions.
6. Broader Pattern
This case fits into a wider pattern observed across Covid-19 OIAs: agencies heavily redacting or withholding advice that informed mandates, health orders, and emergency measures. The consistent invocation of privilege and related exemptions risks eroding public trust and undermines the principle of open government enshrined in the OIA.
⸻
In short: The Ministry cannot treat s 9(2)(h) as an automatic refusal. Where advice determined measures restricting fundamental rights, there is a compelling argument that the public interest in transparency outweighs privilege. This will be a key issue for the Ombudsman — and for future accountability inquiries into New Zealand’s Covid-19 response.
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