20180711 OIA 69115 Ecclestone.pdf

Justice Centre | 19 Aitken Street
DX SX10088| Wellington
T 04 918 8800 | F 04 918 8820
[email address] | www.justice.govt.nz

11 July 2018

Andrew Ecclestone
[FYI request #7959 email]

Dear Mr Ecclestone

Request  seeking  information  relating  to  decisions  made  regarding  a  previous
Official  Information  Act  request  and  official  information  relating  to  the  design,
purpose and intent of section 61 of the Legislation Act 2012

I refer to your email of 30 May 2018 to the Ministry of Justice, received on 13 June, seeking
under the Official Information Act 1982:
•  Under section 23 of the OIA, please provide me with:
(a) the finding on material issues of fact relating to the Ministry's decision of 28 May
2018 that the public interest in disclosure of document 6 (the drafting instructions
to  PCO  of  20  May  2014)  did  not  outweigh  the  necessity  of  maintaining  legal
professional privilege;
(b) a reference to the information on which those findings were based; and
(c)  the  Ministry's  reasons  for  its  decision  that  the  public  interest  in  disclosure  of
document 6 (the drafting instructions to PCO of 20 May 2014) did not outweigh the
necessity of maintaining legal professional privilege.

Please note that, as per section 23(1) of the OIA, section 9(2)(h) legal professional
privilege is not a withholding ground that can apply to requests made under section
23.

•  Under section 12 of the OIA, please provide me with:
(a) all information held by the Ministry relating to design, purpose and intent of the
provision that became section 61 of the Legislation Act 2012;
(b) all information held by the Ministry relating to the interaction of section 61 of the
Legislation Act 2012 and the OIA 1982.

If any of this information is not recorded in writing, please make and supply me with
a  written  note  of  the  information  on  this  topic  known  to  Ministry  officials,  as  the
Ombudsmen have made clear that that 'information held' by a department includes
unrecorded information held by officials in their heads.

As per section 16 of the OIA, I would like to receive this information as electronic
attachments to your email responding to this request. Also as per section 16, my
preference is to receive any documents in the native file format in which they were
created and are held by the Ministry, rather than rasterised/image-only PDF files.

If you decide that any part of the OIA provides a ground for withholding information
when you respond to this request, please could you - as per section 19(a) of the

Justice Centre | 19 Aitken Street
DX SX10088| Wellington
T 04 918 8800 | F 04 918 8820
[email address] | www.justice.govt.nz

OIA  -  provide  details  of  the  reasons  in  support  of  those  grounds,  including  the
public interest factors considered by the Ministry under section 9(1).

In addition, in the event that the Ministry decides that there is reason under the OIA
to  withhold  some  information  in  full,  please  provide  me  with  a  list  of  all  the
documents it has determined fall within the scope of my request.

Finally, when responding to these requests, please could you provide me with a
list of the search terms used by Ministry officials when searching for information
within the scope of the two requests detailed above.

I address each request in turn.

Request  for  information  relating  to  decisions  made  regarding  your  previous  Official
Information Act request

You have requested information about my previous decision to withhold information under
s 9(2)(h) (legal professional privilege) under s 23 “as it is a decision that affected [you] in
[your] personal capacity…as it affected [your] right to information under the OIA”.

I am treating your request as a further request for reasons under s 19(a)(ii) as s 23 applies
to  decisions  personal y  affecting  a  person’s  rights,  interests,  and  liabilities,  rather  than
general OIA matters.

When  deciding  to  withhold  document  6  (drafting  instructions  to  PCO),  I  referred  to  the
Ombudsman’s guidance on legal professional privilege.1 Using that framework:

1.  I  identified  that  the  instructions  were  legally  privileged  as  they  were  a
communication  to  a  legal  advisor  (acting  in  that  capacity)  from  the  Ministry  of
Justice  (the  client)  for  the  purposes  of  seeking  or  receiving  legal  advice  or
assistance (drafting).

2.  I considered that it was necessary to withhold the document in order to maintain
legal  professional  privilege,  because  I  considered  that  releasing  the  document
would constitute waiver. Legal professional privilege is a fundamental element in
the  administration  of  justice.  As  such,  the  public  interest  in  ensuring  the
maintenance of the privilege is very high.

3.  I  considered  that  there  was  public  interest  in  enabling  people  to  effectively
participate  in  the  making  of  laws  by  providing  information  to  assist  in  making
submissions to the Justice Committee.  However, I did not think that releasing the
document would in fact promote those considerations as the instructions did not
provide detailed reasons for why the Law Commission’s recommendation 37 was
accepted on a modified basis only. Those reasons were provided by document 1,
which set out the policy rationale behind the decision.


1http://www.ombudsman.parliament.nz/system/paperclip/document_files/document_files/1247/original/par
t_2c__other_reasons_for_refusing_official_information_-_legal_professional_privilege.pdf?1450324180

Justice Centre | 19 Aitken Street
DX SX10088| Wellington
T 04 918 8800 | F 04 918 8820
[email address] | www.justice.govt.nz

4.  Accordingly, I did not think the countervailing public interest in this case was strong
enough to outweigh the important public interest in maintaining legal professional
privilege.

As you are aware, my view on whether privilege in the instructions had been waived was
revised following your supplementary 28 May 2018 request.

Request for official information relating to the design, purpose and intent of s 61 of
the Legislation Act 2012

The Ministry of Justice and the Parliamentary Counsel Office (PCO) jointly administer the
Legislation Act 2012. Justice is responsible for Part 3, relating to subordinate legislation,
while PCO is responsible for the balance of the Act, including s 61. Accordingly, this part
of your request is more closely connected with PCO’s functions. As PCO is not subject to
the Official Information Act, I am unable to transfer your request under s 14. However, you
could approach PCO directly with your question.

I have arranged a review of the electronic and hardcopy files held by Justice concerning
the Legislation Act to determine whether Justice holds any information about the design,
purpose and intent of s 61. A list of documents is provided in Appendix A.

In particular, I draw your attention  to pages 22 – 23 of the Departmental Report on the
Legislation Bill, which sets out PCO’s advice to the Regulations Review Committee about
s 61. PCO advised that the provision is based on Australian legislation and was included
in  the  Bill  to  codify  the  application  of  legal  professional  privilege  to  confidential
communications between the PCO and instructors, Bill promoters, and those who provide
comments on Bills during the drafting process.

Request for information relating to the interaction of section 61 of the Legislation
Act 2012 and the Official Information Act

I have arranged for searches listed in Appendix B to be undertaken on Justice’s electronic
database  and  undertaken  a  manual  search  of  electronic  folders  related  to  Official
Information Act guidance. We have been unable to find recorded information relating to
the interaction between s 61 of the Legislation Act and the Official Information Act.

Paragraphs 4.69 – 4.74 of the Cabinet Manual (2017), however, set out the process for
releasing legal advice. Paragraph 4.72 provides:

Where a request is made under the Official Information Act 1982 or the Privacy Act
1993, the decision on release must be made by the Minister or chief executive who
received  it.  The  Attorney-General  (through  the  Crown  Law  Office)  should  be
consulted about the request.

Cabinet  Office  Circular  14  (4):  Attorney-General's  Protocol  for  Release  of  Draft
Government  Legislation  outside  the  Crown  then  says  that  requests  under  the  Official
Information  Act  1982  will  continue  to  be  dealt  with  (even  if  they  involve  waiving  Crown
legal  professional  privilege)  under  paragraph  4.68  of  the  Cabinet  Manual  (2008)  (now
paragraph 4.72 of the 2017 Manual). The Circular also says that drafting instructions to
Parliamentary Counsel are released according to the general Cabinet Manual process.

Justice Centre | 19 Aitken Street
DX SX10088| Wellington
T 04 918 8800 | F 04 918 8820
[email address] | www.justice.govt.nz

Accordingly,  requests  for  drafting  instructions  and  draft  legislation  held  by  departments
subject to the Official Information Act will be determined under s 9(2)(h). Draft legislation
prepared to assist the Select Committee report back to Parliament, however, is subject to
parliamentary privilege and so falls within s 18(c)(ii) of the Official Information Act.

If you have any further questions related to this request, please contact Antony Paltridge,
Team  Leader  (Media  and  External  Relations)  on  04  9188980  or  027  6890667  or
[email address]

I trust this information is of assistance to you. You have the right, under section 28(3) of
the Act, to complain to the Office of the Ombudsmen.  It can be contacted at: Office of the
Ombudsmen, PO Box 10152, Wellington.

Yours sincerely

Chris Hubscher
Manager, Electoral and Constitutional

Justice Centre | 19 Aitken Street
DX SX10088| Wellington
T 04 918 8800 | F 04 918 8820
[email address] | www.justice.govt.nz

APPENDIX A
Docum
Document
Status
ent #
1
Draft
•  Withheld under s 9(2)(h) as it is legally privileged. The public
Legislation  Bill
interest  in  enabling  effective  participation  in  the
(consultation
administration  of  laws  does  not  outweigh  the  important
version)
public  interest  in  maintaining  legal  professional  privilege.
Information  about  the  policy  rationale  for  s  61  of  the
Legislation  Act  is  available  through  the  Departmental
Report (Document 2).
2
Legislation  Bill  •  Refused under s 18(d) as it is publicly available:
(as
http://www.legislation.govt.nz/bill/government/2010/0162/8.0/D
introduced)
LM2997666.html
2
Departmental
•  Refused under s 18(d) as it is publicly available:
Report  for  the  https://www.parliament.nz/en/pb/sc/submissions-and-
Legislation Bill  advice/document/49SCRR_ADV_00DBHOH_BILL10035_1_A
143131/legislation-bill-departmental-report

3
Draft
•  Refused  under  s  18(c)(ii)  as it  is  subject to parliamentary
Regulations
privilege. A final version of the report is publicly available:
Review
https://www.parliament.nz/resource/en-
Committee
NZ/49DBSCH_SCR4939_1/1d6df6d69ca563e378d0a1738b11
report  to  the  36f7d9d3ba8c
House  about
the  Legislation
Bill
4
Draft
RT  •  Refused  under  s  18(c)(ii)  as  it  is  subject  to  parliamentary
version  of  the
privilege. A final version is publicly available:
Bill
https://www.parliament.nz/en/pb/sc/reports/document/49DBSC
H_SCR4939_1/legislation-bill-162-2

Justice Centre | 19 Aitken Street
DX SX10088| Wellington
T 04 918 8800 | F 04 918 8820
[email address] | www.justice.govt.nz

APPENDIX B

The  following  searches  were  undertaken  on  Justice’s  jukebox  filing  system  for  al
documents and without date ranges:
•  “official information act” AND “legislation act”
•  “OIA” AND “legislation act”
•  “OIA” AND “s 61”
•  “official information act” AND “s 61”
•  “official information act” AND “section 61”
•  “official information act” AND “s 61”
•  “OIA” AND “legal professional privilege”
•  “OIA” AND “legal privilege”
•  “official information act” AND “legal professional privilege”
•  “official information act” AND “legal privilege”
•  “official information act” AND “PCO”
•  “OIA” AND “PCO”