Dear Ministry of Health,

Fyi Ref:
H202206577

Hi.

In a fyi.org.nz response to Scott dated 22 June 2022 your Ministry said:

"The Minister of Health, Hon Andrew Little, has commissioned an independent review which has not been completed. Once the report arising from the review has been submitted to the Minister, the Ministry expects the Minister will decide whether to release it."

Has the independent review now been completed? If so, can you please forward me a copy.

If the review hasn't been completed can you give an estimated date for completion? It's now over 18 months since the data breach occurred

Yours faithfully,

Peter Mitchell

Dear hnzOIA,

Gaynor,

I see there are media reports that a report was released on 7 December. I'm surprised you didn't send me a copy of the report. Can you please do so.

Yours sincerely,

Peter Mitchell

Dear hnzOIA,

I have now been given a copy of the InPhySec Security report. I see it has been released with a number of redactions made under the Official Information Act.

In terms of those redactions can Health NZ please provide, under s. 19(a)(ii) of the OIA, the grounds of support of each of those redactions.

I note for the record Health NZ has not advised me of my right to make a complaint to the Office of the Ombudsman to seek an investigation and review of Health NZ's refusal to provide all the information in the InPhySec Security report.

I also note that Health NZ has not referred to any public interest reasons to release the redacted information referred to in s. 9(1) of the OIA. Can you please send me that s. 9(1) consideration.

Yours sincerely,

Peter Mitchell

Dear hnzOIA,

I refer to your response of 21 December 2022.

You refer to ss. 9(2)(c) and 9(2)(k).

Grounds in Support

Regarding my request for the s.19 OIA grounds in support of that reason to withhold you have not given me those grounds in support.

S. 19(a)(i) provides you must give the applicant who made the request the “reason for its refusal.” You have done that by referring to s. 9(2)(c) and 9(2)(k).

As you will be aware s. 19(a)(ii) provides, in part:

“if the applicant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by …. section 9 and (in the case of the interests protected by section 9) there is no countervailing public interest;”

In my 8 December 2022 email I had asked for those s.19(a)(ii) “grounds in support” of Health NZ’s decision to use s. 9(2)(c) and 9(2)(k).

In his September 2022 report “OIA compliance and practice in Ministry of Health” the Chief Ombudsman commented (at p. 30):

“Staff in the Communications and Data Services teams should also have an adequate level of knowledge about the OIA to allow them to identify OIA requests and to be aware of the obligations they must adhere to when responding to them. In particular, these staff need to be aware of OIA timeliness obligations and, where any aspect of the request is refused, they must be aware of the Ministry’s obligations under section 19 of the OIA to give the requester the reason for its refusal … “

And at p.46:

“There are a number of reasons I suggest the Ministry embed good record keeping practices for OIA requests:

it will assist the agency in responding to requesters if they seek the grounds for withholding information, under section 19 of the OIA;”

Again I request you to provide me with the grounds in support of Health NZ‘s decision to use s. 9(2)(c) and 9(2)(k).

Public Interest

In your 21 December 2022 response when I asked about Health NZ’s section 9(1) (public interest) considerations you simply said:

“We considered the public interest in transparency and accountability, but did not consider that it outweighed the harm.”

To assist agencies in considering how to properly apply section 9(1) and the public interest the Ombudsman in 2019 prepared “Public interest: A guide to the public interest test.” In its Introduction this Guide said:

"This is a guide to how the public interest test works in practice. It contains discussion and case studies to illustrate:
the kinds of public interest considerations that can favour disclosure of official information;
some factors that can affect the weight of the public interest in disclosure; and
alternative ways that agencies can seek to strike the right balance between the need to withhold information and the public interest in release.

In the Guide (p. 4) it states:

The public interest is broadly equivalent to the concept of the public good. It can cover a wide range of values and principles relating to the public good, or what is in the best interests of society.

The Guide goes on to give examples of public interest considerations favouring disclosure. These considerations include:
Transparency
Participation
Accountabilty
Administration of justice
Health, safety and environment

The Guide says (p.5):

In practice, this means that agencies must:
Identify the …. interest(s) in favour of withholding the information
Identify the public interest considerations in favour of disclosing the information
Assess the relative weight of these competing interests, and decide whether the public interest in disclosure outweighs the need to withhold.

The Guide, at pp. 8 – 22 gives practical examples of identifying public interest considerations favouring disclosure.

Recording and giving reasons
On p. 27 the Guide says:

The official information legislation doesn’t say that agencies have to record or give their reasons for concluding that the public interest in release does not outweigh the need to withhold information when refusing a request. However, it is good practice for agencies to adequately document their decision making process, including their application of the public interest test. Doing so helps in the event that a requester seeks the grounds in support of the reasons for withholding, or an agency has to justify to the Ombudsman its decision to refuse a request.

It is also good practice for agencies to explain their application of the public interest test to requesters, even if the requester does not seek the grounds in support of the reasons for withholding. This should include the public interest considerations they have taken into account, and their reasons for concluding that those considerations did not outweigh the need to withhold. Doing so promotes transparency and helps to instil trust and confidence that the agency has taken a robust approach to the application of the withholding grounds."

In his September 2022 report “OIA compliance and practice in Ministry of Health” the Chief Ombudsman commented (at p. 47)”

“... I suggested in my provisional opinion that the Ministry may wish to consider adding a prompt to staff in its template OIA response letters to include details for the requester about the public interest considerations specific to their request. This should not simply be a rote sentence stating that countervailing public interest considerations do not outweigh the decision to withhold information. It should promote genuine consideration of the public interest and be informative for requesters. The Ministry has advised that it has amended its template in accordance with my suggestion and I look forward to following up on its implementation over the coming months.”

Given your Ministry has advised it has amended its public interest template you have still given me in your response of 22 December 2023 what the Chief Ombudsman refers to as a “ …a rote sentence stating that countervailing public interest considerations do not outweigh the decision to withhold information.”

Can you provide what the Public Interest Guide referred to above says:

"This should include the public interest considerations they have taken into account, and their reasons for concluding that those considerations did not outweigh the need to withhold."

I await your response on both of these matters.

Yours sincerely,

Peter Mitchell