Last week, the Ombudsman ruled that the Prime Minister should release communications between him and sewer-scraper Rachel Glucina over his serial sexual harassment and bullying of a cafe waitress. Today, the Ombudsman released their formal case-note of the case, and there's some interesting features which are worth highlighting.
Firstly, on confidentiality, the Ombudsman reiterates that protection applies to information supplied to the government, not to information supplied by it. So, what journalists say to Ministers might be protected, depending on the circumstances - but what Ministers say to journalists probably isn't. And while that's a "might", its a pretty narrow one, because its a two-legged test: not only must there be an express or implied obligation of confidence (rather than just a chummy assumption that no-one will ever find out), there also has to be a real risk that release would prejudice the supply of such information in future. And on the latter point, the Ombudsman notes that journalists are "more aware than most" of the OIA and the principle of availability - an implicit suggestion that it is unlikely to be seen as prejudicing future communications. To which I'd add that the fact that it is a journalists job to talk to Ministers would weigh heavily against a finding of prejudicing future supply.
Secondly, the hat game. Its common for Ministers to try and dodge tricky questions by claiming that they were wearing a different hat and acting in their capacity as a Member of Parliament rather than as a Minister. Key's office tried to do this, after the fact, but the Ombudsman shut that down because he had already accepted responsibility. But more importantly, he goes on to say that
In the absence of any evidence that it was received by the Prime Minister in any other capacity, the Chief Ombudsman concluded that it was held in the Prime Minister’s capacity as Minister of the Crown and, as such, the OIA applied.
In other words, Ministers can't just assert that they were acting as an MP rather than a Minister - they need to prove it. The presumption now is that Ministers are always acting as Ministers, and the information they hold is official by default.