Wednesday, October 25, 2017

LGOIMA, personal email, and journalists

There's an interesting Ombudsman's ruling out today covering both attempts by officials to circumvent the law by using private email accounts, and requests for communications with journalists. Here's the summary on the first part:

A requester sought access to a Hawke’s Bay Regional Councillor’s email and telephone communications with specified third parties between 8 and 25 August 2016. When the request was refused, the requester made a complaint to the Ombudsman under the Local Government Official Information and Meetings Act 1987 (LGOIMA).

Most of the communications in question were conducted and stored on the Councillor’s private email account. In the course of the Ombudsman’s investigation, parties suggested that information stored in a personal email account was not official information and therefore was not subject to the LGOIMA. The Ombudsman did not accept this argument.

The question of LGOIMA’s application turned on whether the Councillor had sent or received the communications while acting in his official capacity as a Councillor. The LGOIMA could not be circumvented by conducting or storing those communications on private email accounts or personal devices.

All of which is uncontroversial. The interesting part is the willingness of the Ombudsman to use s19(1) of the Ombudsmen Act to compel production of the relevant material so it could be properly assessed. Its a clear message to politicians: keep your official information on official services, or face having your personal accounts trawled through to find it.

The second part of the ruling is also interesting: one of the "specified third parties" was a journalist. And on that front, the Ombudsman ruled that those communications were subject to an obligation of confidence and could therefore be withheld. Journalistic source protection (which is recognised as important in the Evidence Act) protects officials who provide information to journalists, and LGOIMA (and by extension, the OIA) can't be used to break it. Its an important recognition of the democratic role of the media, and yet it raises potentially troubling questions about accountability for "official" leaks and dirty politics. OTOH, the latter is likely to involve a high public interest in release (there being a higher interest in accountability for smears). And on the gripping hand, if you ask a politician for their communications with a journalist, and they refuse release due to confidentiality, that's effectively a confession, and (unless there are strong reasons to think otherwise), its perfectly reasonable to conclude that they are the source. The only way for politicians to avoid such public inferences is to disclose.