This response is pretty hilarious. It's a case of "let's decline your response under every rule we can think might possibly apply to ensure that an appeal will be extremely difficult".

CCC are well known for this kind of evasion and have been pulled up by the Office of the Ombudsmen 6 times in the past year for it.

I too requested this data and was told it was confidential. The process was anonymous, much from post it notes and first name only submissions on line. Also, submissions are public. I pointed this out and was told that the data was in a proprietary software programme. I pointed out that I could download the programme free online. I was then told it would take many hours of staff time to compile the data. I pointed out it was clearly already compiled as staff had to do this to create the reporting. They disputed this.

[edited to remove attacks — @admin]

1. I am not convinced that this information cannot be released. There is no explanation as to why the privacy of individuals cannot be respected by redacting the personal information. If the information is held in a database with the submission in one field and the person information in another, then the non-personal information could be released.

2. I am not convinced that there was an obligation of confidence. Confidentiality is subject to statute law (in this case the OIA). The justification is not made out and really do wonder whether the solicitor has bothered to apply the test in the Ombudsman's practice guidelines (1). Even if there was an obligation of confidence, it has to be made out that the making available of the information "would be likely to prejudice the supply of similar information" or that it "would damage the public interest".

3. Similarly I am not convinced that there is substantial collation and research involved, especially if the information is held in an information system. The data has been coded (2), which suggests it would be easily retrievable with collation (or research). In fact, all the collation has been done and so has the analysis. Dirk has said above that he would be able to download the software that will read the data.

4. Mr Gilbert says there are no public interest considerations which outweight the reasons for withholding. Did he even identify any? He doesn't say. How convenient. One consideration is that this was a major public consultation about the redevelopment of the Central City that attracted 21% of the city's population. It is in the public interest that the submissions made are made available to enhance transparency and make city planners accountable to the people (submitters) that put forward their ideas. The importance of this process of generating ideas is going to have a long-term consequence on the city in many ways.

5. Lastly, the very first point Mr Gilbert makes is that the Council is "not willing" to provide you with access to the data. Not that is "not able", but that it is "not willing". In other words, they have decided that they don't want you to know. mr Gilbert's response belies the prejudice (preconceived judgement) with which he determined the outcome of your request. He has also stacked his case by adding questionable withholding grounds, which only has the effect of making his response look unreliable. He has fobbed you off with providing you with summary-level information, which you didn't ask for, in the hope this will suffice.

Regards

Luke

Footnotes

(1) http://www.ombudsman.parliament.nz/syste...

(2) http://www.nvinteractive.co.nz/our-work/...

Luke, thank you. There is no legal basis for their refusal and Mr Gilbert knows this. Is it ethical for a solicitor to offer statutory defences when he is aware that they are bogus? Two questions:
How does one file an ombudsman complaint
How does one file a complaint with whoever regulates solicitors?
Thank you.

1. There are two possible courses of immediate action the requester for this information could take. The requester could either:

a.) Contact the responder (Mr Gilbert) directly and explain that you are unhappy with his decision (briefly outline why) and ask he would be willing to revisit his decision if you were to provide reasons why you believe his decision was wrong. If he says that he is not willing to entertain a reassessment of his decision, then you would go to option ‘b’ below.

Even if he is happy to revisit his decision,, based on the number of withholding grounds the lawyer identified in his response, I would anticipate the lawyer would probably hold firm to his original decision and your approach would be futile in the end.

b.) Make a complaint to the Ombudsman about the decision, setting out what it is you want them to review (i.e. what was wrong about the decision) and what your reasons are. It is helpful to include an explanation as to why you want this information, and any public interest considerations that can be used to support whether the lawyer’s decision took into account all the relevant public interest factors. The Ombudsman will then investigate and review the decision made on your behalf.

2. Both could be used in combination with b.) following a.) . If you choose to pursue a.), you would include that fact in your complaint to the Ombudsman to show you have tried to mediate. In any event, making a complaint to the Ombudsman is usual course of action to follow. Most people will not give the organisation (e.g. the Council) an opportunity to revisit their decision, but instead submit a complaint to the Ombudsman as the first action. Information on making a complaint is on the Ombudsman’s website (FN 1)

3. In either a.) or b.) above, it is appropriate that the requester make the approach, unless the requester asks for another person to act on their behalf.

4. My view is that despite the fact that the lawyer has given the appearance that he acted with preconceived judgement in respect of your request, it is the technical decision making to withhold the information that ought to be questioned in the first instance and on that basis it is appropriate to make a complaint to the Ombudsman rather than making a complaint to the body that regulates solicitors. However, since you have asked for the process of making complaints against solicitors I will provide it now.

5. In the first instance you should try to resolve any concerns with the lawyer directly either informally by phone or in writing, or more formally by making a formal complaint in writing to them about the problem. In a formal complaint, you would set out the facts (i.e. the background of the case), state what you are unhappy about, and provide reasons why you are unhappy with their decision. You would support your reasons by referring to the relevant Ombudsman’s practice guidelines (FN 2), and any other guidance material contained in say, the Ombudsman’s Quarterly Review, or previous cases. If the lawyer received a complaint you would give him/her an opportunity to respond, and offer appropriate offer a remedy (in this case that might be assessing the decision making and judgement applied in determining that the information is to be withheld under the withholding grounds the lawyer identified).

6. Only after you have exhausted that internal complaints process should you then consider making a complaint to the Lawyers Complaints Service at the New Zealand Law Society (FN 3). Making a complaint against a lawyer to the Law Society is a serious matter, as this will go on the lawyer’s file at the Law Society. It is akin to someone making a complaint about a person to their the professional body or association that represents ytheir profession or industry. A lesser means of expressing concern against a lawyer would be to submit a concerns form (FN 4) to the Law Society. I would advise against submitting any such complaint or concern to the Law Society in the first instance, and, only as a last resort, consider this action if the lawyer is acting unprofessionally or improperly in resolving your formal complaint (should you make one).

7. While complaints to the Law Society are usually made about how a lawyer has conducted themselves when working for a client (the client being the Christchurch City Council) or the poor service offered to their client. However there are overarching duties that a lawyer does need to fulfil by complying with the fundamental obligations of lawyers in the Lawyers and Conveyancers Act 2006 with respect to their duties under any enactment.

FN 1 http://www.ombudsman.parliament.nz/make-...

FN 2 http://www.ombudsman.parliament.nz/resou...

http://www.ombudsman.parliament.nz/resou...

FN 3 http://www.lawsociety.org.nz/home/for-th...

FN 4 http://www.lawsociety.org.nz/home/for-th...