New Zealand Law Society - Ombudsman considers "off the record" confidentiality

Ombudsman considers "off the record" confidentiality

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Chief Ombudsman Peter Boshier has released a case note following investigation of two complaints about refusal of the Prime Minister's Office to disclose communications with a journalist over the pulling of a waitress' hair by the Prime Minister at an Auckland cafe.

At issue was a single unsolicited text message from journalist Rachel Glucina to the Prime Minister, received while he was overseas. The Prime Minister did not respond to the message, which was subsequently deleted.

A request was made under the Official Information Act 1982 for all emails, text messages, or social media messages between Rachel Glucina and the Prime Minister or his office in any capacity, "regarding the Rosie cafe, its owners or employees".

The requester was advised that "it is not the practice of the media team or the Prime Minister to divulge details of the communications the Prime Minister or the media team has had with Rachel Glucina" and any relevant information was withheld. The grounds relied on were sections 9(2)(a) (privacy) and 9(2)(ba) (subject to an obligation of confidence) of the Official Information Act.

A later request for the same information was also refused.

The Chief Ombudsman says in the circumstances it was not necessary to withhold the information to protect either the privacy interests of the individuals concerned or any obligation of confidence to Ms Glucina.

Considering the obligation of confidence, he says the decision to refuse the requests appeared to rely on a purported broader, unspoken convention that "off the record" communications with members of the media fall within scope of a wider obligation and protection of confidence.

"... there is not blanket protection under the OIA for 'off the record' communications between Ministers and members of the media. Each case must be considered on its own merits and the suggestion that there may be a convention of confidentiality which overrides the OIA is unfounded. This was acknowledged by the Prime Minister's Office."

Judge Boshier says there may be occasions where an "off the record" communication from the media to a Minister might need to be withheld to protect an obligation of confidence, but this was not such a case.

"In his report to the Chief Ombudsman the Prime Minister had identified that the text message, a communication of Ms Glucina's opinion to the Prime Minister about the subject of her interview, was unsolicited by him, he had not responded and the text had not been retained. Therefore in all the circumstances of this case the Chief Ombudsman could not see any basis to accept that the text message was subject to an obligation of confidence."

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