Confidentiality - recent case notes from the Office of the Ombudsmen

by: Imogen Edwards - Associate

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Disclaimer
The information in these articles is general information only, is provided free of charge and does not constitute legal or other professional advice. We try to keep the information up to date. However, to the fullest extent permitted by law, we disclaim all warranties, express or implied, in relation to this article - including (without limitation) warranties as to accuracy, completeness and fitness for any particular purpose. Please seek independent advice before acting on any information in this article.

As Chief Ombudsman, Peter Boshier has led the Office of the Ombudsman to faster and more effective resolution of complaints relating to the release of information under both the Official Information Act and the Local Government Official Information and Meetings Act 1987 (LGOIMA). Since his appointment in 2015, we have witnessed the increased presence of the Office and this will no doubt continue with Mr Boshier's reappointment for a second five-year term in 2020.

We know that over the last few years there has been an increase in the number of LGOIMA requests received by councils and this was confirmed by data published by the Office of the Ombudsman in March 2021. To assist councils with navigating the various statutory obligations imposed by the LGOIMA, this article addresses some of the recent case notes released from the Office of the Ombudsman regarding confidentiality.

Request for record of "without prejudice" meeting - document generated for a meeting held between Tauranga City Council and Bella Vista Homes Limited.

Without prejudice discussions (and the associated meeting minutes) are likely subject to an obligation of confidence, as per section 7(2)(c)(ii) of the LGOIMA but are not covered by legal professional privilege under section 7(2)(g).

The Ombudsman has provided clarification as to the scope of section 7(2)(g) of the LGOIMA, which covers two aspects of legal professional privilege:

  • 'Solicitor/client privilege' - which extends to all communications between a solicitor (acting in that capacity) and their client, for the purposes of seeking or giving legal advice or assistance, irrespective of legal proceedings; and
  • 'Litigation privilege' - which extends the privilege to communications with third parties where that communication has, as its dominant purpose, enabled a legal adviser to advise a client on the current or anticipated conduct of litigation.

Without prejudice privilege is distinct from legal professional privilege, as it allows parties seeking a compromise in a dispute or influencing settlement negotiations to engage in full and frank discussions, without fear of the information being brought before the courts. In this case, meeting minutes recording a without prejudice discussion between Tauranga City Council and Bella Vista Homes Limited were subject to an obligation of confidence, given the meeting was held to resolve various matters regarding the Bella Vista Homes development and avoid the need for litigation.

Public interest test in a confidential side agreement between Council and iwi

To rely on section 7(2)(c)(ii), providing the information must be likely to otherwise damage the public interest. As with all section 7 withholding grounds, councils must be satisfied that despite the existence of a privacy interest or a confidentiality interest, there is no other consideration which makes it desirable, in the public interest, to release that information.

In this case, a request was made for a confidential side agreement between Horowhenua District Council and Te R┼źnanga o Raukawa relating to the Council's resource consent application for the treatment and discharge of wastewater from Foxton, which was before the Environment Court.

The Ombudsman was satisfied that section 7(2)(c)(ii) applied and accepted that the obligation of confidence played a key role in achieving the agreement and that there was a public interest benefit to be gained in protecting that confidentiality. Further, the release of the agreement would be likely to damage the public interest by creating mistrust amongst iwi and other parties as to the robustness of the Council's confidentiality undertakings, resulting in reduced willingness to engage with the Council and making it more difficult to reach a negotiated outcome in the future.

In releasing such information, the Ombudsman considered there was public interest regarding the approach of public agencies to matters affecting the environment and matters of cultural interest (noting the agreement related to the Council's application for the treatment and discharge of wastewater from Foxton, which had raised issues of cultural concern for Te R┼źnanga o Raukawa). This was made more acute in the circumstances, given that a draft of the agreement had been leaked and the issue generated public disquiet and speculation following subsequent reporting by the local newspaper. In the circumstances, the Ombudsman considered a summary of the agreement, setting out information such as:

  • the Council's maximum financial commitment under the agreement;
  • the signatories;
  • the effect of the agreement on the proceedings; and
  • how the cultural effects of the proposal were addressed:

should be released, in order to complete the picture partially drawn by the initial leak, and to provide public assurance.

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Disclaimer
The information in these articles is general information only, is provided free of charge and does not constitute legal or other professional advice. We try to keep the information up to date. However, to the fullest extent permitted by law, we disclaim all warranties, express or implied, in relation to this article - including (without limitation) warranties as to accuracy, completeness and fitness for any particular purpose. Please seek independent advice before acting on any information in this article.