Case 388866 (Complaint ground: 388868)

Contact Leanne Stewart @mbUdsman

7 March 2017 Fairness iorall

Dea--

OIA investigation
Prime Minister
Briefings to bloggers

Following the change in Prime Minister, it was necessary for me to re>>notify your complaint to the
Rt Hon Bill English.

You will recall that the Rt Hon John Key had refused your request1 under section Isle) of the CIA.

Farmer Prime Minister
When responding to the complaint, Mr Eagleson, on behalf of the Rt Hon John Key, commented:

a comment2 maae by Rt Hon John Key that was
published by the New Zea/ana Hera/a on 18 August 2014. The context in which the
request was made demonstrates that the nature of the issue at the heart of the
request related to the Prime Minister in his capacity as leaaer of the National party
rather than a Minister of the Crown. As notea above, the Prime Minister, when
referring to 'his office', wI/l not usually be explicit as to whether he is referring to the
office of the prime Minister or the office of the teaaer of the National Party. in the
present circumstances the context indicates clearly that the Prime Minister was
referring to Mr Ede's actions in the context of the office of the teaaer of the National
Party. Any briefing wouia have been ofa political nature supporting Rt Hon iohn Key's
role as teaaer of the National party. [would also note that Mr was [m7 longer a
Ministerial office employee] auring the month ofJuly 2014. i can confirm this Ofi'ice
does not hold any official information within the scope of--reauest. in

1'allbiielings given by the PM or any member of his stair to ploggers during the month olhily 2014' On 25
November 2016 you advised this oriice that you were prepared to limit your request to prieiings given to
Cameron slatei lWhale oil) and David Falral lKIwalog)

2 "Asked if he was aware that Mi Ede was running a dirty tricks campaign from his office, Mi Key said 'He's been
briefing ploggers, and or course he oiiels people on the right, iust as people l'm sure in the Labour leadership,
over the years, have orielea people on the left'."

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the circumstances, I continue to rely on section 18(e) of the CIA to refuse-

- request.

Current Prime Minister

On 22 December 2016, I wrote to the Rt Hon Bill English and asked him to advise me whether he
adopted the decision of his predecessor. This is because:

A Minister's decision is essentially a personal one. An incoming Minister is not
automatically responsible for OIA decisions made by his or her predecessor. The
incoming Minister must be free to make his or her own decision on the requests.

When responding to the complaint, Mr Eagleson, on behalf of the Rt Hon Bill English, reiterated
his initial point about the context in which the request was made. However, he advised that as
the Rt Hon John Key and many of the staff in his Office are no longer available to review and
advise on the context of any communications that may be identified, 'Rt Hon Bill English is not in a
position to be certain in which capacity the former Prime Minister made these communications
and whether they are definitely not official information. Accordingly, Rt Hon Bill English is not in a
position to adapt the decision of the former Prime Minister in respect of his response to Mr
Marwick's request. Neither is Rt Hon Bill English in a position to make a fresh decision regarding
the status of any communications identified as potentially relevant to the request'.

My investigation going forward

Accordingly, we are in a position where the new Prime Minister neither adopts nor disputes the
decision made by his predecessor. In these circumstances, I would normally ask the Prime
Minister to supply me with any briefings covered by the request and I would make the
assessment regarding the status of the information.

However, the 'Protocol for the release of information from the parliamentary information,
communication and security systems' dated 17 August 2016 provides guidance on the
exercise of an Ombudsman's powers under section 19 of the Ombudsmen Act 1975 'where
the Minister is claiming that the information is not held in his or her official capacity as a
Minister and is therefore not subject to [the 

Before exercising the powers under section 19, an Ombudsman must be satisfied that there
is a reasonable likelihood that the information is held by the Member of Parliament in his or
her official capacity as a Minister of the Crown and having regard to the following:

i. that a Minister's official capacity does not include matters that are carried out by
the Minister in his or her capacity as a member of Parliament or a
member/leader of a parliamentary party; and

ii. that the OIA does not apply to members of Parliament or the parliamentary
agencies generally, and that the protocol is based on the principle of member
consent; and

3 Ombudsman's Quarterly Review, Volume 5, Issue4 December 1999

 

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Office of the Ombudsman   Tari o te Kaitiaki Mana Tangata

iii.

that the exercise of power under section 19 cannot be used as a means of
widening the scope of the OIA to cover the parliamentary agencies.

In the circumstances of this case, given that I accept that any briefings relevant to your
request would likely have been in the Prime Minister’s capacity as the Leader of the
National Party and given that I have no evidence to suggest that any official information is
held, I am not satisfied that the threshold in the Protocol for the exercise of my powers
under section 19 has been met.
In these circumstances, I cannot take this investigation any further in so far as it relates to
briefings given by the Prime Minister. I would also note that when a Minister or official
ceases office, information that they alone hold (if it is official information) ceases to be
official information at that point. However, I can ask the Department of Internal Affairs to
provide me with any information that is relevant to this investigation which DIA is deemed
to hold by virtue of section 2(5) of the OIA (namely, the requested communications which
involve DIA employees who worked in the Prime Minister’s office at the relevant time).
I would be grateful if you would let me know within 7 working days whether you would like
me to continue with the investigation but with the reduced focus discussed above. If I have
not heard from you within that time frame, I will discontinue my investigation and review.
Yours sincerely

Judge Peter Boshier
Chief Ombudsman

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