Thursday, February 07, 2013

Hiding behind "commercial sensitivity"

Earlier in the week the government released its response to the Law Commission's review of the Official Information Act [PDF], in which it signalled its intention to add new withholding grounds for commercially sensitive information. And right on cue, we have an Ombudsman's decision reminding us of how Ministers abuse the already existing provisions, ordering the release of information about the government's negotiations with New Line and Peter Jackson over The Hobbit.

The full decision is here. Basically the CTU and Radio New Zealand requested information about the production of The Hobbit. After consulting with New Line and Wingnut, the government withheld their communications with the film industry, claiming they were "commercially sensitive" and provided in confidence. The Ombudsman disagreed, finding that some of the material had already been discussed publicly, and that there was no serious risk of unreasonable prejudice to their commercial position. As for the claim of "confidence", the Ombudsman was scathing:

There is no indication that the third parties here ascertained whether Ministers were prepared to accept the information they wished to convey on a confidential basis. As far as I can see, their claim of an obligation of confidence has been constructed after the event in response to the official information requests. I do not consider that section 9(2)(ba)(i) provides a tenable basis for withholding these communications.

However, I would go further and say that I doubt whether communications of the nature involve din this case attract an 'obligation of confidence' whatever the parties making them may have claimed at the time (here they made no claim at the time). As I remarked above, they are submissions on a matter of public interest designed to persuade Ministers to adopt a particular policy stance. They are not intrinsically confidential communications on personal matters, indeed much less so than in the
Jefferies case itself. I do not consider that section 9(2)(ba)(i) was ever intended to permit Ministers or departments to erect a barrier to the disclosure of general policy submissions made to them by third parties on the ground that an obligation of confidence thereby arises that is owed to those submitters.

(Emphasis added)

So, the government thinks large corporations should be able to lobby in secret for their commercial advantage, and have their lobbying protected as "confidential" and "commercially sensitive". The worry is that they will "reform" the OIA to reflect that view. If they do, we will all be worse off for it.

(Meanwhile, the government will now have to release that lobbying, and from the sound of it it will be embarrassing to both them and their film industry cronies. While Robert Winter raises the prospect of a Ministerial veto, its not a real possibility. While the power to veto an Ombudsman's decision is still on the books, it has not been used since it was made more difficult in 1987, and it is now constitutionally unthinkable).