Access To And Disclosure Of Government Information Notes

Government Information - Access to and Disclosure of Public Interest Immunity The executive can prevent the disclosure of documents in Court proceedings if disclosure would prejudice the public interest more than non-disclosure would prejudice the administration of justice. Conway v Rimmer A police constable was fired for allegedly stealing a police torch, and challenged the dismissal. Both parties wanted the dis closure of routine police reports to help decide a civil case (done after the criminal case). Overturned Duncan and Cammel, which had decided that any document or class of documents' disclosure could be prevented by Ministerial warrant. Held the courts should balance the public interest in the proper administration of justice against the public interest in wit hholding any evidence which a Minister considers ought to be withheld. Judges may decide to consider the specific document in a class claimed to be protected, judge that document. In this case, a routine police report's disclosure would not prejudice the public interest, so disclosure was given. Limits: If the Minister's reasons for non-disclosure are of a nature not in the judiciary's competence, the Minister's view must prevail. Retain certain classes of documents that ought not to be disclosed no matter their contents - e.g. Cabinet minutes. Environmental Defence Society v South Pacific Aluminium [1981] NZCA Overturned the absolute non-disclosure principle for higher level Government documents (Cabinet minute) Documents will only be withheld from disclosure to the extent that the public interest renders it necessary. The Court has the discretionary jurisdiction to inspect documents or order their production, notwithstanding a Ministerial ob jection. But inspection of documents should not be ordered without good reason, and in some cases the Court will likely never inspect (national security). In this case, there is a good reason: Unusually strict tests ("essential") A special procedure for judicial review is set in the Act - Court is the last safeguard. The Ministerial Warrant indicates the wrong considerations may have been considered. The power to inspect documents will not be exercised unless there are reasons to doubt the cogency of a Minister's reasons. Public interest in due administration of justice doesn't extend to allow a litigant without evidence to engage in a "fishing expedition". Fletcher Timber v Attorney General [1984] NZCA Once the Court is convinced that certain documents are relevant to a case, it has no discretion to refuse ordering their prod uction. i.e. A claimant does not need to establish the documents will benefit their case, like in England, just that they are relevant to the case. If a Ministerial certificate leaves a judge uncertain as to a PII claim, the judge will inspect the document as part of weigh ing up the PII claim. Presumption of production: the onus is on the party pleading PII to show the documents should be withheld from inspection. OIA 1982 maintains PII (s 11), but is focussed on open government - relevant consideration in deciding whether to grant PII. If information is available through OIA, will not be blocked by PII claim in litigation. A claim of PII to maintain candour and frankness of governmental advice is unlikely to succeed If documents are very important, or nature of litigation/issues demand it, Courts will be loathe to ignore a ministerial certificate. e.g. High finance, defence, diplomatic relations - non-justiciable. Matrix Churchill case Mr Henderson was the director of MC, which sold machine tools to Iraq, but also a MI6 informant. Selling the tools to Iraq was not a statutory crime, but a regulatory one - depended on the government's policy at the time, which didn't need to be publicised. The state tried to hide behind PII to claim that national security would be threatened by the production of documents showing that the Home Secretary knew of MC's dealings and sanctioned them, and lied to the Court claiming no knowledge of this. Prosecutor eventually conceded there was no PII claim, despite the State claiming there was - prosecutors are separate from the state. In exam - something about terrorism similar to this case? Choudry v Attorney General [1999] NZCA The Courts are the ultimate arbiters of disclosure, and are not bound by certificates even on security matters - but they are likely to defer. 1. Although certificates are not absolutely determinative, they cannot be required to specify details that will jeopardise the p urpose of immunity. 2. The "jigsaw effect": discretely innocuous pieces of information may be damage to the security interest when considered with o ther information. i. Production could show how investigations are carried out, typographic systems employed, security procedures, personnel, etc. Judicial inspection may be unhelpful considering the 'jigsaw effect' To a judge alone, the details may seem innocuous, but in fact with further knowledge the national security interest may be apparent. To consult the PM without reference to Choudry would be against principle and inappropriate. Issue is not justiciable. Given this, the customary deference paid to and trust placed in a certificate must prevail. The court must consider the competing public interests one the premise that the Minister has acted responsibly and with justi fication. Dissent: dear god, such dissent. Basically that if the Court is too deferent, there is no accountability of the SIS - should at least inspect. The Minister of the SIS is in no position to judge national security independently - fed information by covert SIS (biased) Official Information Act 1982 Throughout the West there has been a development of increasingly open government, whereby the public has greater access to in formation of executive activities, decisions and information. The result of this development in NZ: the OIA 1982, the Privacy Act 1993, and the Ombudsmen Act 1975. This has reversed the old law, which assumed that official information is the property of government, not to be disclosed wit hout reason and authorisation. Reasons for openness: Participation - an informed public better plays its constitutional role in our democratic system by judging policies of governments. Accountability - secrecy is an impediment to accountability. Public Page 19

Buy the full version of these notes or essay plans and more in our LAWS204 Public Law Notes.