Kelsey wins OIA battle in court against Government

In her fight against the Trans Pacific Partnership Jane Kelsey has battled Minister of Trade Tim Groser for the release of information under the Official Information Act. When Groser used a blanket refusal Kelsey and others took it to court, and the High Court has just ruled that Groser treated her applications improperly.

The full court ruling is here (PDF).

Summary of judgement:

[1] The applicants have sought judicial review of a decision of the Minister of Trade (the Minister) in which he refused to release to Professor Kelsey official information contained in eight categories of documents she requested under the Official Information Act 1982 (the Act). The information requested by Professor Kelsey concerns material associated with negotiations that have led to a multi-lateral free trade agreement called the Trans-Pacific Partnership Agreement (TPP Agreement).

[2] When the Minister refused Professor Kelsey’s request, neither he nor his officials assessed each piece of information requested against the criteria in the Act for withholding official information. Instead, the Minister adopted a “blanket approach” to the request based upon his knowledge of the categories of documents requested by Professor Kelsey. I have concluded this approach did not comply with the Act.

[3] The applicants have applied for a series of declarations concerning the lawfulness of the Minister’s approach and the meaning of specific provisions of the Act.

[4] Rather than issue specific declarations I have quashed the Minister’s decision in relation to six of the categories of documents requested by Professor Kelsey. I explain in this judgment the aspects of Professor Kelsey’s request which have to be reconsidered. When the Minister reconsiders his decision he will be required to do so in a way that is consistent with his obligations under the Act, which I explain in this judgment.

This is a significant win for Kelsey and co over OIAs. There seems to be growing Government arrogance over and misuse of Official Information requests, and this is a prime example.

Some have tried to make more of this than a good victory over the OIA. For example:

Hey righties: Tell us more about how Jane Kelsey is a fake academic who doesn’t actually know a damn thing about trade agreements or the law

While this shows that Kelsey knows how to use the law to win battles, , and justifiably in this case, this does nothing to support her anti-trade and anti-TPPA stance.

What do righties think?

Matthew Hooton mixing it up with the Standardistas:

On this issue, congratulations Jane Kelsey. With it comes to OIA compliance, each government since Muldoon’s (which passed the Act) has been worse than the one before, and the slide risks continuing until the Act becomes a total irrelevance.

This is a good shot across the government’s bow that it has to comply with the law, and hopefully it will be part of encouraging a behaviour change.

Sadly, I doubt it though, and I think the OIA needs to be fully reviewed, reformed and modernised, including adding penalties for breaking it. This may also be a start for a push towards that.

I have been a big user of the OIA for many years and it would take months to get ministers in the last government to comply with the law. Now it is many more months, rolling in some cases into years. It seems each government tries to outdo the one before in terms of abusing this particular Act.

The Taxpayers’ Union put out this media release:

TAXPAYERS’ UNION TIP CAP TO JANE KELSEY

The Taxpayers’ Union is welcoming the decision of Justice Collins allowing the judicial review of the Minister of Trade’s decision not to allow access to information requested by Jane Kelsey and others relating to the Trans-Pacific Partnership negotiation. 

Taxpayers’ Union Executive Director, Jordan Williams, says:

“This is a significant victory for freedom of information and an embarrassment for the Office of the Ombudsman which has been shown up as lacking. Every day, groups from the Taxpayers’ Union to Greenpeace along with public lawyers and political journalists are hampered by a freedom of information system which is being gamed by the government.”

“For years the Ombudsman’s office has complained that the problems are due to a lack of funding. In reality, the number of appeals relating to the Official Information Act has snowballed because government agencies and politicians know that the Ombudsman is a toothless tiger.”

“Even when cases arise of officials completely gaming the system, the Ombudsman’s office won’t publicly condemn them for their actions.”

“Agencies are able to delay the Ombudsman’s investigations without consequence. As a public lawyer I once acted for a whistle-blower client who lost his job in the public sector while waiting more than two years for the Ombudsman to made a decision that never eventuated.”

“While Jane Kelsey and the Taxpayers’ Union are probably on opposite ends of most political spectrum, we absolutely commend her efforts in taking this judicial review and the victory for freedom of information and transparency. Ironically, while the High Court has been able to produce a decision the Ombudsman is still yet to determine the rest of Ms Kelsey’s original complaint.”

This is an important issue related to democracy, the legal obligations of Government and transparency.

It is good to see that it isn’t a partisan issue and Kelsey hasn’t just been attacked by political opponents, she has rightly and leftly been applauded for an important win that affects all of us.

Kelsey’s views on the TPPA and international trade are an entirely different matter.

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5 Comments

  1. IF it leads to some improvement in the OIA system and presumably that would flow down to Local Government as well – thats a good thing. The shroud of secrecy is drawn as a matter of sop instead of on a justified case by case basis…

    I suspect Kelsey won’t get the information she wants, as Groser will now reject the request category by category citing one or more reasons under the act… and Kelsey will seek a review again. But the TTP will be signed by then.

    That may lead to a review of whether NZ should have signed if she finds something in the negotiating documents that is suss, but that is not probable I would think.

    The whole rationale here seems to be that Government trade negotiators should consult with Ms Kelsey and only do deals that she and her cohorts approve of…. pity comecon is not still in existence as I am sure Jane would have approved of NZ joining that

    Reply
  2. kiwi_guy

     /  14th October 2015

    Excellent article, I don’t agree with Kelsey’s Marxist derived views, but its good to see a government forced to cough up the info the public has a right to see.

    Reply
    • 4077th

       /  14th October 2015

      Even if Kelsey succeeded in getting her hands on the information it will have been heavily redacted anyway so a massive exercise in futility either way.

      Reply
  3. Goldie

     /  14th October 2015

    Governments generally do not release relating to international treaty negotiations (IIRC, s.6b and 6e of the OIA). It was lazy of Groser’s officials to give a blanket ‘no’ (when they should have given seperate ‘nos’), but I am not sure it is a “significant victory” or an “important win” for anyone.

    Reply
  4. 4077th

     /  14th October 2015

    Grosser should have known better and probably did…A necessary risk to avoid people like Kelsey getting her grubby Marxist mits on the info to use as a stick to bash the government and in the process hand Little Andy some ammo. I understand why they refused and the reasons for it.

    Reply

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