I squared the NZ transport Agency’s response with the OIA guidelines on page 12 of the Ombudsman’s website at http://www.ombudsman.parliament.nz/syste....

Taking each of the four elements in turn that need to be met on pages 12-14:

(i) If there is advice in the business case (e.g. recommendations as to which option to choose and why) and is about to be tendered, then it may be appropriate to withhold this advisory information to ensure the Board can make an full and considered assessment.

If a “direct connection can be established between the internal discussion papers and the advice to be tendered to Ministers, and the remaining elements of the section are made out” is relevant here. The business case will be integral to any advice, as it outlines the factual basis and rationale for decisions.

The element is probably satisfied.

(ii) It must be “necessary” to withhold the information to ensure effective deliberations. If the releasing of the advisory information would inhibit effective consultation, then this element would be satisfied.

(iii) The purpose here is to allow a State-owned enterprise Board to make a decision about a transport route. The convention would likely apply in this situation. The element is probably satisfied.

(iv) It is important to question whether releasing the entire business case would harm the interests that 9(2)(f)(iv) seeks to protect. In your request, you asked if the business case woulc be released in part if some of it needed to be withheld. The guidelines state that “Advice that is purely factual in nature or comprises bare options, as opposed to opinions offered or recommendations made as to future action, can often be disclosed without pre-empting the ability of Ministers or Cabinet to deliberate on the advice received and decide how to proceed. In other words, not all advice may need to be withheld, even though it is still under consideration.” Without having seen the full-text of the business case, but knowing that business cases have a lot of background information that is not advisory in nature, I am likely to believe that there is likely to be information in the document that could, and should, be released to you. As such, this fourth element is not satisfied.

In terms of whether there are any considerations, in the public interest, that outweigh the need to withhold the document, you would consider the following factors:

1. whether the information would assist you and others to participate in the decision-making of the ‘third main’. Would the information be illuminate or inform you for any process in which you were deciding whether to support this infrastructure?

2. Whether the information assisted you to hold the Board, the Transport Agency, or other public officials to account. At this stage, no one has yet made a decision so this consideration may not be relevant.

Remember, the public interest must outweigh the need to withhold the advice/advisory sections of the business case; if they are unlikely to do so, your best option to ask for the business case to be released with redactions to the information that would harm the convention to consider advice. So for example, recommendations and advice would be withheld, but facts and options would not be. If you agree with this, one option is to respond to the NZ Transport Agency in a new request stating which information you believe can be released (based on my assessment).

You could also, concurrently, lodge a complaint with the Ombudsman, and revoke that complaint if the NZ Transport Agency release a satisfactory amount of information to you.

Once the KiwiRail Board has made its decision, then the full business case (including the advisory sections or recommendations) should be released to you. You may need to re-request it at the appropriate time.

I am not convinced that the timing of the released of the business case is contingent on the action plan for ATAP. The information is only being withheld to allow a decision on the third main and if the business case is utilised to make a decision before the implementation of the action plan, then I see no reason to continue withholding the information.

It would have been helpful for the NZ Transport Agency to advice you of when the business case was going to be provided to the Board at their next board meeting. This indicative timing would be helpful in knowing how long you would have to wait before all the information could be released.