Office of the Ombudsman   Tari o te Kaitiaki Mana Tangata

Appendix 1. Extract from my opinion
Withholding of the report due to it being in ‘draft’
In relation to the background of the Report, Ms Gardner has set out:
An initial draft version of the report was received by RFA in June 2017. RFA staff
identified that further work was required before the draft report could be presented to
the RFA Board.
The Report remained in draft while this further work was undertaken by PwC. Since Mr
Niall’s LGOIMA request on 30 November 2017, the draft Report was provided to the
RFA Board at their Thursday 22 February 2018 meeting.
Ms Gardiner then notes that the Report remains in draft and has not been finalised as this has not
been a priority for the RFA Board. The timeline for finalisation of the Report is uncertain and
depends on other work.
The Council is therefore withholding the report under section 7(2)(f)(i) of LGOIMA in order to
maintain the effective conduct of public affairs through the free and frank expression of opinions
from PWC to employees of RFA.
In this regard, the Council has submitted:
The process of consultants providing draft documents for review and feedback is well
established and important for the supply of quality reports. In the early stages of the
development of potential projects it is important for organisations such as RFA to be
able to confidentially engage with early drafts of reports that inform the direction of
the project. This process is important to maintain the effective conduct of public
affairs. The ability of local authorities and their CCOs to freely explore options for
strategies, projects and all relevant activities would be severely constrained if they are
unable to procure advice from consultants on a confidential basis, accepting that there
will be an appropriate point at which the advice should be made public.
Section 7(2)(f)(i) does not protect free and frank opinions per se. The interest it seeks to protect is
the ability to receive free and frank expressions of opinion in the future where such free and frank
opinions are necessary for the effective conduct of public affairs. There must be some reason to
believe release of the information at issue would inhibit the expression of free and frank opinions
in the future that are necessary for the effective conduct of public affairs.
Successive Ombudsmen have considered whether this provision applies to protect information
contained in review documents prepared by external contractors. As set out in this Office’s
recently published guide on this provision1, consultants that have been commissioned because of
their skill and professional expertise in a particular area are unlikely to be inhibited in providing
free and frank opinions in future. Professional advisers are expected to be frank and robust in

1

Office of the Ombudsman. ‘Free and frank opinions’ March 2018 Retrieved from
http://www.ombudsman.parliament.nz/system/paperclip/document_files/document_files/2544/original/free_an
d_frank_opinions.pdf?1519855061 at page 7

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 Office of the Ombudsman   Tari o te Kaitiaki Mana Tangata

their work and to state their findings and conclusions to the best of their ability, as that was the
purpose for which they were commissioned.
There is no basis for a blanket withholding of drafts under LGOIMA until they are completed and
finalised. There are withholding grounds that can apply to protect draft documents, most
commonly sections 7(2)(c)(i) and 7(2)(f)(i) of LGOIMA. However, their application depends on a
close analysis of the information at issue, and the harm that would flow from its release. Not all
drafts are the same. It is important to note in this case that this report was in near final form, and
has subsequently been submitted to the RFA Board[…] To have a standard approach of
withholding draft reports until they have been fully signed off leaves the process open to
exploitation by agencies who want to hold off release of information until it is most convenient.
If there are sections of draft versions of the Report which are undeveloped and require further
engagement with PWC, this can be mitigated by providing an accompanying statement that
places information in a proper context, or by making targeted redactions of this information
under section 7(2)(c)(i) or 7(2)(f)(i) depending on the circumstances. A blanket withholding of an
entire document simply because of its status as a draft is not consistent with the purposes of
LGOIMA.2
In these circumstances, I do not consider that disclosure of the Report would inhibit PWC or any
other external assessor from providing free and frank opinions in the future. This is clearly the
purpose for which PWC report was commissioned, and it had significant time to develop the
analysis provided to the Council at the time of Mr Niall’s request, and the report was in its final
stages.
I therefore do not consider that section 7(2)(f)(i) applies to the report. I consider that the Council
should have analysed the information within the report against the grounds for withholding, as
discussed below, rather than withholding it in full.
Owners of land identified as being potentially suitable for a National Stadium
The Council has identified that the report has been withheld to protect the commercial position of
the owners of the land which is identified in the report as being potentially suitable for the
location of a National Stadium (section 7(2)(b)(ii) of LGOIMA), as well as to enable RFA to carry on,
without prejudice or disadvantage, negotiations with the land owners (section 7(2)(i)).
I accept, subject to further comments from Mr Niall, that section 7(2)(b)(ii) of LGOIMA applies to
the section of the Report which detail and analyse the potential locations considered[…]
I do not consider that section 7(2)(i) applies to the information as the Council is not engaging in
negotiations, and it is not clear at this time how the project will progress[…]
In relation to the rest of the Report which does not comment on, or identify, the potential
locations, I do not see how the release of this information would give rise to the harms that the
Council has identified under section 7(2)(b)(ii) of LGOIMA, in relation to the owners of the land.

2

See for example discussion in relation to the Official Information Act in Kelsey v Minister of Trade [2015] NZHC
2487 at [108]

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 Office of the Ombudsman   Tari o te Kaitiaki Mana Tangata

Potential stadium stakeholders
The Council has also withheld the Report to protect the commercial position of the potential
stakeholders of a National Stadium that provided information for the Report (section 7(2)(b)(ii) of
LGOIMA), and to protect information provided by these potential stakeholders which is subject to
an obligation of confidence (section 7(2)(c)(i) of LGOIMA).
I accept, subject to further comment from Mr Niall, that the details within report which would
identify the potential stakeholders who provided information for the Report would need to be
withheld under these sections of LGOIMA.
Section 4 of the Report sets out the views of the potential stakeholders, as obtained by PWC. The
Council can redact Table 5 of this section, which details who the stakeholders were, as well as
further references to the names of these stakeholders throughout this section of the Report. I
consider, however, that the remainder of the information within this section is sufficiently
anonymised that it could not be linked to specific stakeholders. Therefore, releasing this
information would not prejudice their commercial position, or inhibit the ability of the Council to
receive sensitive information in the future. The information is mostly PWC’s summary of the
engagement with stakeholders, and represents their view on the various issues raised. Where
quotes have been included, these are generic statements which do not reveal sensitive
information about the particular stakeholders.
I am therefore of the provisional opinion that the Council had good reason to withhold the details
in the section which identify the potential stakeholders, but that these sections of LGOIMA do not
apply to the remainder of the information in relation to stakeholders.
Countervailing public interest considerations for the report
As you will be aware, where section 7(2) reasons for refusal are applicable, I must also consider
whether the interest in withholding the information, is outweighed by any countervailing public
interest considerations which favour the release of information (section 7(1) of LGOIMA).
While I also consider that there are sections of the report to which no section 7(2) grounds apply,
I still think it is useful to comment on the public interest in this information even if section 7(2)
grounds for refusal did apply.
In relation to the public interest in the information, Ms Gardner has commented:
The stadium discussion is a popular issue that has received considerable attention in
the media. However, as your guidelines state, the fact that an issue is discussed in the
news media does not prove that there is a valid public interest in the information that
is requested. We suggest that any interest in the contents of the Report is tangential to
the eventual overall stadium issue and falls into the category of being interesting to
the public as opposed to being of legitimate concern to the public.
Ms Gardner continued:
RFA have been transparent in confirming that they have engaged PWC to undertake
the review and provide the Report. RFA confirmed to Mr Niall that the Report has
identified “feasible locations for a National Stadium and National Stadium Precinct in

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the central city, however there would need to be much more work down on cost and
funding options and land availability”. The purpose of the Report is to ensure that
independent experts provide quality advice to feed into the development of policy…The
public are likely to have opportunities to participate in stadium decisions at the time
decisions are being considered and made. The public are not currently disadvantaged
or prevented from participating by not having the contents of the Report.
I consider that the Council has understated the countervailing public interest in this information.
While there may not yet be any decisions made on the matters raised in the report, there is a high
public interest in transparency of what expert advice the Council has received to inform its future
decisions on a possible National Stadium. This is a project which, were the matter to progress,
would involve the use of significant public funds, either through the Council or central
government. There is a public interest in the Council being transparent at each step of the
process.
The report shows what is being considered at this time, and what information is being used to
assess potential features of the stadium, as well as potential locations. These are key
considerations which will have an impact on subsequent decisions that are made on the issue of a
potential ‘National Stadium’.
I also consider that there is a strong interest in the release of information within the report to
enable more effective participation by the public in the decision making by Council concerning a
possible national stadium (section 4(a)(i) of LGOIMA). There is a public interest in availability of
information that enables the public to understand and debate issues, and participate in decision
making processes which affect them. Timely access to information is important to enable the
public to participate more effectively in the actions and decisions of local authorities. Delaying
access to relevant information until after decisions are made thwarts effective participation by
the public and runs counter to one of the purposes of LGOIMA.
Planned opportunities for public consultation at a later stage in the project, is not necessarily an
adequate alternative to release of information as early as possible to enable more effective
participation by the public. Nor is ‘participation’ met solely through formal, agency led processes.
The ‘pre-feasibility’ phase would seem to be an entirely appropriate time for the public to have an
opportunity to consider the issue, and the advice that the Council has received. If matters develop
and change following the report, the Council can also provide further information to better
inform the public at that time.
In these circumstances, the release of parts of the Report can satisfy the public interest, while
particularly sensitive information can be redacted to prevent the harms that the Council has
identified for land owners and potential stakeholders. I do not consider that section 7 grounds for
refusal would apply to many of these parts, as discussed above, but even if the grounds apply, I
consider that the public interest would require that this information be released.

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