Dear Ministry of Health,

On 13 April 2021 I made a request to you for information relating to the Ministry's work on certifying or proving a person's Covid-19 status (your reference: H202104400).

The 13 April request and response can be found here:
https://fyi.org.nz/request/15162-certifi...

On 7 May 2021 the Ministry refused my request entirely, citing section 9(2)(f)(iv) of the OIA.

This request has three parts. Under section 12(3) of the OIA I am requesting that the Ministry respond to this request urgently. That section requires a requester to state their reasons for requesting an urgent response. My primary reason for seeking urgent disclosure of the information to enable people to play an informed part in the debate on the policy issues and options around certification or proof of a person's Covid-19 status. These options could have a major impact on people's civil liberties, their ability to get or maintain employment, travel, and so on. I believe there is a strong public interest in the public debate on these issues being better informed *before* Ministers take final decisions and/or legislation is introduced to Parliament. I do not believe that a better informed public prior to Ministers and Cabinet taking decisions will harm the orderliness of consideration of that advice nor the effectiveness of government decision making. If public debate on the material disclosed leads to a different choice, that's what a democracy is about.

First part of my request:
I don't believe the withholding ground cited by the Ministry in its 7 May response can apply to all the information I requested, since the Ombudsman's guidance on section 9(2)(f)(iv) states that:

"Section 9(2)(f)(iv) usually applies:
* to advice related to executive government decision making processes;
* that has or will be tendered to Ministers or Cabinet;
* by Ministers or officials;
* where disclosure would harm the orderly and effective conduct of the relevant decision making process; and
*most often on a temporary basis—while the advice remains under active consideration."

(Page 3 of the guide here: https://www.ombudsman.parliament.nz/site...)

The key elements to note are that 9(2)(f)(iv) applies to advice that has been or will be tendered to Ministers or Cabinet.

Paragraphs (c)(iii)-(vi) and paragraphs (d),(e), and (f) of my request seek information that can in no way be understood to be advice to Ministers. Section 9(2)(f)(iv) can therefore not provide 'good reason' under the OIA to withhold this information. Please provide the information requested as soon as possible.

The second part of my request relates to the Ministry's consideration of the public interest factors in release and withholding the information sought in my 13 April 2021 request.

All the withholding grounds in section 9 of the OIA require the Ministry to consider whether the public interest in disclosure outweighs the reasons for withholding the information (see section 9(1) of the OIA).

The Ministry has not explained what public interest factors it has considered. I therefore request, pursuant to sections 12 and 19(a)(ii) of the OIA, all information the Ministry holds about its consideration of the public interest in disclosing or withholding the information I requested on 13 April 2021, and all internal communications relating to the processing of my request.

The third part of this request relates to the Ministry's consideration of paragraphs (a), (b) and (c)(i)-(ii) of my 13 April request. The Ombudsman's guidance is clear that 9(2)(f)(iv) might apply when disclosure would prejudice the ability of Ministers and Cabinet to consider the advice tendered by Ministers and officials (page 5). The Ministry will need to demonstrate *how* disclosure would prejudice the ability of Ministers and Cabinet to consider the advice. It has not done this in its response of 7 May, simply made an assertion.

Please also note page 7 of the Ombudsman's guidance where he states a Ministry must consider:

"Is there any background material, or information that is purely factual or comprises bare options (as opposed to the analysis or evaluation of options)? Such material can often be released without any impact on the relevant decision making process. If it is severable from the remaining advisory material, there may be a basis for partial release. As the Committee that recommended the enactment of the OIA noted, ‘it is by no means now the case – if it ever was – that the canvassing of options within government administration must always be protected by confidentiality’."

The Ministry has not provided - or given any indication that it has considered doing so - any of this 'purely factual' or 'bare options' material contained in the material within scope of paragraphs a), (b) and (c)(i)-(ii).

In responding to this request, please explain - and provide all information held in relation to - how the Ministry has considered the application of the public participation 'in the making of administration of laws and policies' (section 4 purposes of the OIA) when considering whether section 9(2)(f)(iv) provides good reason to depart from the section 5 principle of availability. For further guidance on this issue, see page 11 of the Ombudsman's guidance on Public Interest, available here:
https://www.ombudsman.parliament.nz/site...

I look forward to hearing from you soon, given the urgency of this request.

Yours faithfully,

John Jacobson

Dear Ministry of Health,

I have not received from you an acknowledgement of receipt for the OIA request I made to you. Please confirm your receipt of the request I sent you.

Yours faithfully,

John Jacobson

Dear Ministry of Health,

This is again not a valid response to my OIA request, and I strongly suggest you show it to one of your lawyers, who will confirm this. Not only is the Ministry currently failing to meet its obligations under the OIA, but it is also disregarding the responsibilities of the Chief Executive that can be found in section 12(1)(d) and 12(2) of the Public Service Act 2020, and the section 16(1)(c) public service value found in the same Act.

In my request to you of 10 May 2021 I told you that it was invalid to apply the section 9(2)(f)(iv) withholding ground to material that doesn't constitute advice tendered to a Minister. I provided you with links to the Ombudsman's guidance which confirms this point. You have still not provided a valid response to parts (c)(iii)-(vi) and paragraphs (d),(e), and (f) of my request of 13 April 2021.

Second, I asked the Ministry, pursuant to both section 12 and the separate right under section 19(a)(ii) to provide me with "all information the Ministry holds about its consideration of the public interest in disclosing or withholding the information I requested on 13 April 2021, and all internal communications relating to the processing of my request." You have failed to respond to this aspect of my request of 10 May 2021, and your email provides no ground for refusal that is compliant with the OIA.

The Chief Executive of the Ministry of Health has spoken in public about the importance of transparency to the Ministry's success in responding to the pandemic, and retaining public trust. I agree with him. I respectfully ask that he respond to this OIA request in a manner consistent with the section 4(a)(i) purpose of the OIA, which is to enable people to participate in policy debates before decisions are taken. I cannot participate in the making of policy if the Ministry refuses to disclose information about policy formation until Ministers have taken decisions.

At present the Ministry's response looks like it is acting cynically to delay disclosure by forcing the matter to be investigated by the Ombudsman instead of complying with its legal obligations under the OIA. This is conduct that is destructive of public trust in the Ministry, even if it is conducive to pleasing senior managers and Ministers.

Please confirm that you will be providing a compliant response to my request of 10 May 2021. If not, please confirm this so I may ask the Ombudsman to undertake an expedited investigation.

Regards,

John Jacobson

Dear Ministry of Health,

On 8 July you wrote to me telling me you had made a decision on my request of 10 May, but that you would not be releasing the information to me until 28 July.

It is now five weeks past that date and you have still not disclosed the information, let alone responded to my request of 13 April 2021 (https://fyi.org.nz/request/15162-certifi...).

These are completely unacceptable breaches of the OIA, and the Ministry is making a mockery of the law's purpose of enabling people to participate in the development of laws and policies.

I understand the additional strain being placed on the Ministry by the pandemic response, but I note both requests were made, and the Ministry committed to providing a response to the second request, before the current outbreak of Covid in August.

This email is a fresh request for information on the progress with responding to both the request of 13 April 2021 and 10 May 2021. As this information will be immediately to hand, I expect to receive an answer far quicker than the outside time limit of 20 working days.

Yours sincerely,

John Jacobson