25 Oct 2017

Politicians can't hide behind private email - Ombudsman

1:59 pm on 25 October 2017

The Ombudsman has sent a message to politicians they cannot hide from the Official Information Act using private email addresses and phones.

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An illustration of the proposed Ruataniwha Dam. Photo: supplied

Last year, former Central Hawke's Bay mayor Peter Butler requested Hawke's Bay regional councillor Tom Belford's email and telephone communications with specified third parties around the height of the Havelock North water crisis.

Mr Butler requested the councillor's communications between 8 and 25 August, specifying "of particular interest are any communications with Peter Fowler of Radio New Zealand, the Hawke's Bay Today, Simon Lusk, Russell Norman, and Genevieve Toop of Greenpeace NZ relating to either the Ruataniwha Dam or the Havelock North water contamination incident".

Mr Butler made the request under the Local Government Official Information and Meetings Act (LGOIMA) a day after Greenpeace conducted an email campaign calling for councillors to shelve the Ruataniwha Dam.

The Ombudsman said Mr Belford refused to release any documents on the grounds information stored in a personal email account was not official information.

A case note just published said the Ombudsman then exercised his power to require the councillor to provide him with the requested information.

After reviewing the material, the Ombudsman said he did not accept some of the information sent to Mr Belford's private email address was exempted from the Act.

"The question of LGOIMA's application turned on whether the councillor had sent or received the communications while acting in his official capacity as a councillor.

"The LGOIMA could not be circumvented by conducting or storing those communications on private email accounts or personal devices," the Ombudsman said.

Mr Belford has released one email exchange with Greenpeace which the Ombudsman deemed official information. It shows Greenpeace alerting Mr Belford to the impending Ruataniwha Dam email campaign and how to manage the messages.

Some of the communications were between the councillor and a journalist. The Ombudsman accepted that the emails were official information because they were sent and received in the councillor's capacity as an elected official.

The Ombudsman accepted the councillor and the journalist were respectively acting in their official and professional capacities.

"In these circumstances, the Ombudsman accepted that the communications in question were subject to an obligation of confidence."

The Ombudsman said a key point arising out of the investigation was the use of private email accounts or personal devices did not override official information requests.

He said the LGOIMA might provide protection to communications between journalists and communications with elected officials, but it was not a blanket protection.

"Such communications may be justifiably withheld if their disclosure would be likely to damage the public interest by compromising the confidentiality of journalists' sources.

"This would affect the free flow of information to journalists, recognised by Parliament and the courts as a vital component of democracy in New Zealand."

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