New Zealand Law Society - Fairway Reviewers' Benchbook covered by OIA, says Ombudsman

Fairway Reviewers' Benchbook covered by OIA, says Ombudsman

This article is over 3 years old. More recent information on this subject may exist.

Ombudsman Ron Paterson has released an opinion in which he upholds a complaint against FairWay Resolution Ltd's refusal to release its Reviewer's Benchbook.

The Benchbook is a resource developed by FairWay for use in undertaking review services in relation to ACC decisions.

The complaint arose after a request to FairWay for a copy of the Benchbook. This was refused under sections 9(2)(b)(i) and 9(2)(b)(ii) of the Official Information Act 1982. FairWay said release of the information would disclose a trade secret, and would be likely to unreasonably prejudice its commercial position.

FairWay submitted that its reviewers are not an organisation for the purposes of the OIA, on the basis that they exercise judicial functions and are therefore excluded by section 2(6).

Professor Paterson concluded that FairWay's reviewers are not undertaking judicial functions for the purposes of section 2(6). He did not accept that the Benchbook was a trade secret, and felt that even if release would give rise to unreasonable prejudice to FairWay's commercial position, the strength of the public interest favoured release of the information.

"Although the Benchbook is not binding on reviewers, it is clearly used as a reference tool and utilised in decision-making. FairWay provides the Benchbook as a resource to the reviewers it engages to undertake informal, investigative and first-stage reviews for claimants, prior to recourse to the courts," he said.

"Claimants are often not legally represented, and the decisions arising from reviews have significant consequences for their entitlements under a scheme that impacts widely on their health, finances, employment and rehabilitation." 

Professor Paterson said reviews are not public or published. 

"If the Benchbook, which is critical guidance material for reviewers, is kept secret, there is little transparency in relation to the substance and quality of the decisions made by reviewers, or the basis on which they approach issues arising under the ACC Act."