October 14, 2015 11:00am by David Farrar

A win for the OIA

Trade Minister Tim Groser has been ordered to take a fresh look at a request for information on Trans Pacific Partnership (TPPA) negotiations.

Professor Jane Kelsey and others took Groser to the High Court after he refused to release information to her under the Official Information Act. It later emerged that Groser had not reviewed the documents he refused to release, in a blanket refusal for information.

On Tuesday Justice David Collins delivered a judgement in which he said there was was “no lawful basis for the Minister to withhold, in the way he did, some of the information requested by Professor Kelsey”.

Collins added: “It is therefore appropriate for the Minister to ensure officials assess each piece of information requested by Professor Kelsey that is in the possession of the Minister and [Ministry of Foreign Affairs and Trade] MFAT against the criteria in the Act for withholding information”.

The decision fell short of a declaration that Groser or officials at MFAT acted illegally in the refusal.

This is an important court decision as it clarifies how the OIA should operate. Even if you disagree with Jane Kelsey on other issues, you can appreciate her victory in this court case as supporting the public good.

What is interesting is that the Chief Ombudsman had ruled the refusal was legal, so it is a wake up for them also.

The court ruling doesn’t mean that the Government has to release confidential negotiation documents. It means that a blanket refusal was not lawful. Instead officials have to look at each document and come to a view as to whether it can be released. I suspect there would be a very large charge for doing so, but if someone is willing to pay it, then some documents would be released.

However one OIA expert said it may be that Groser’s office and MFAT officials had made a basic error in the way it handled the request. Groser could simply have used section 18A of the act, which covers requests involving a substantial amount of collation and research to request further time and possibly inform Kelsey that she would have to pay for the research to be undertaken.

Charging should only be done rarely but if you want 30,000 documents analysed then it seems reasonable.