Dear Ministry of Justice,

This is a request for information under the Official Information Act 1982 (the OIA). Under section 12(3) of the OIA I request that you process my request urgently. My reason for urgency is that I need the information requested below in order to make a submission on the Privacy Bill, the closing date for which is 24 May 2018. In deciding whether or not to accord urgency to my request, I trust the Ministry will attach appropriate weight to the section 4(a)(i) purpose of the OIA, to enable people to effectively participate in the making of laws - particularly since this relates to the human rights of individuals.

In the Law Commission's 2011 Report R123 (Stage Four of its review of the Privacy Act) (http://lawcom.govt.nz/our-projects/privacy), the Law Commission recommended (recommendation R37, page 132-3) that "The Ombudsmen should be deleted from the list of entities excluded from the definition of “agency”.

The previous government's response to the Law Commission report was that it would consider this matter further.

However, the definition of 'agency' in clause 6(b)(ix) of the current Privacy Bill still excludes the Ombudsman.

Please provide (as electronic attachments to your response to this request, as per s. 16 of the OIA) the following information:

(a) All documents, emails, memoranda, briefings, aide memoire, speaking notes, notes of meetings, handwritten notes made by officials, or other recorded information held by the Ministry, that includes any consideration of Law Commission recommendation R37 on deleting the Ombudsman from the list of entities excluded from the definition of 'agency'; and

(b) Copies of all correspondence and notes of meetings (handwritten or typed up) that relate to this issue, that the Ministry has held with:
(i) The Ombudsman or any of his employees or representatives
(ii) The Privacy Commissioner or any of his employees or representatives
(iii) Any other third party.

If you decide that any part of the OIA provides a ground for withholding information when you respond to this request, please could you - as per section 19(a) of the OIA - provide details of the reasons in support of those grounds, including the public interest factors considered by the Ministry under section 9(1).

In the event that the Ministry decides that there is reason under the OIA to withhold some information in full, please provide me with a list of all the documents it has determined fall within the scope of my request.

Yours faithfully,

Andrew Ecclestone

Dear Antony and Chris,

Thank you for your response to my request. I understand that my request to the Ministry has been transferred back from the Minister, and that my request to the Minister has been transferred to the Ministry also.

As discussed on the phone with Chris just now, I would be grateful if the Ministry could provide a supplementary response to my request that addresses the following deficiencies with the letter supplied today:

1) Please confirm that the Minister holds no additional information within the scope of my request beyond that held by the Ministry.

2) The first document listed in Appendix A to Mr Hubscher's letter is missing from the collation of documents supplied. Please provide a copy of document 1 - 'Note: R37 Act to apply to Ombudsmen (26 November 2012);

3) The response to my request does not address paragraph (b) of my request - for copies for all correspondence and notes of meetings held with the Ombudsman, Privacy Commissioner or others relating to this issue. Please could the Ministry make clear whether it could find no information when it searched for this (suggesting a refusal under s. 18(e) or 18(g)), or whether it does hold information that matches this description, but believes there is good reason to withhold it under another of the Act's provisions (and if so, which); and

4) In the penultimate paragraph of my request I asked "If you decide that any part of the OIA provides a ground for withholding information when you respond to this request, please could you - as per section 19(a) of the OIA - provide details of the reasons in support of those grounds, including the public interest factors considered by the Ministry under section 9(1)." Unfortunately, this aspect of my request appears to have been overlooked. Please could the Ministry's supplemental response address this issue, particularly in relation to document 6, the drafting instructions to Parliamentary Counsel, which have been withheld under section 9(2)(h).

In relation to document 6, and as I discussed on the telephone with Mr Hubscher, I presume the drafting instructions to Parliamentary Counsel address the definition of 'agency' in clause 6 of the Privacy Bill ('Interpretation'), in particular which bodies should be listed in paragraph (b) of the definition as being excluded from the definition of 'agency'. The OIA's purposes (section 4) indicate that there is a countervailing public interest which the Ministry should consider before refusing to disclose document 6. I believe that there are two public interest factors the Ministry should consider. First, the public interest in accountability for departing from the Law Commission's recommendation 37. Second, the public interest in participation in public debate on a matter affecting the human rights of New Zealanders, and making an informed contribution to Parliamentary consideration of this aspect of the Privacy Bill, outweighs the need to withhold the relevant part of the drafting instructions. Please could the Ministry re-consider this issue, and - as noted in paragraph 4 above - if it still decides the information should be withheld, provide me with details of its consideration of the public interest factors in relation to this specific request, as required by section 19 of the OIA.

I have secured an extension until Thursday 31 May for making a submission on the Bill to the Justice Committee, so I would be grateful if the Ministry could provide its supplementary response by the end of Wednesday 30 May at the latest.

Kind regards,

Andrew Ecclestone

Dear Julia and Chris,

Thank you for providing this supplementary response, and for releasing a portion of the drafting instructions (document 6).

Thank you also for directing my attention to section 61 of the Legislation Act 2012. I shall make a fresh request for information concerning the Ministry's understanding of the interacting effects of section 61 and section 9(1) of the OIA.

Yours sincerely,

Andrew Ecclestone