Serious concerns with Chief Ombudsman’s proposed case note
Last week we received from the Office of the Ombudsman this proposed case note. We were invited to comment if we “have any issues or concerns with the proposed case note.” We do have serious concerns and for transparency we decided to publish not only the Chief Ombudsman’s proposed case note here, but also our detailed response to him.
Response to proposed case note (case number 009781)
Dear Chief Ombudsman John Allen,
We are writing today to response to your proposed case note provided to us.
We are seriously concerned about this case note because it contains a significant number of errors in fact finding as well as applying the law correctly. We already raised these issues with you during the investigation process and provided detailed feedback. However, it appears that our commentary has not been taken into consideration at the time and also not for this proposed case note.
We are going to address these issues in the case note in two parts. First, we will highlight errors in fact finding by directly quoting from the case note. The second part will focus more on general issues.
Errors in fact finding
You write: “24 of the requests were refused by the Council under section 17(h) of the LGOIMA”. The actual number of refused request relying on section 17(h) LGOIMA is much higher, but only 24 of them were complained about to the Ombudsman.
We had the intention to bring more of the refused requests to the Office of the Ombudsman so that you have a clearer picture of the overall issue. But your staff advised us not to make any new complaints (no matter the reason for refusal by Council) to the Office of the Ombudsman. Effectively, we were put on a restriction not to complain to the Ombudsman for roughly one year.
You write that you “considered the history and context of the requests, the stated intention and purpose of the requests, the administrative demands of the requests”. This statement directly contradicts what you wrote to us in your final opinion: “You have set out each of your requests separately, explaining the purpose and context. I do not intend to go through each of your requests separately”. Consequently, a statement that you considered “the stated intention and purpose” of the requests cannot be upheld, because you asserted that you have not looked into each of the requests.
You write that you considered “any pattern of requests”. As above, when unwilling to look into each request, obviously one cannot find any pattern. However, we are of the firm view that there is a clear pattern regarding which requests the Council refuses relying on section 17(h) LGOIMA. These are exactly the requests that deal with accountability of the Chief Executive and her staff, where the release of the requested information would likely demonstrate wrongdoing by Council staff. Ironically, as per section 4 LGOIMA, this is exactly the purpose of LGOIMA, namely “to promote the accountability of local authority members and officials”.
You write: “The complainant made over 150 information requests to the Council over a ten–month period.” This number is simply wrong and we made this clear in the past. It appears that the Office of the Ombudsman is not interested in diligent fact finding, but instead takes it as accurate whatever number the Council presents. This is concerning on its own, but more so with the background that in the past it was successfully demonstrated that the Council put forward false statements to the Office of the Ombudsman.
You write that there was “unreasonable pressure on the Council’s LGOIMA function”. Whether or not there was “pressure” is debatable, but clearly one cannot find pressure to be “unreasonable” when not looking into the content of the requests and solely dealing with a “very high number” of requests.
There can be situations when a high number of information requests can be expected. For example, as we pointed out in your investigation, when during the mentioned 10-months period the Council appointed a new CEO, adopted 4 bylaws, performed a representation review for the 2025 election and adopted a Long Term Plan. All of these topics were discussed confidentially, mainly in closed workshops, hence the public having only access to limited information. At the end of last year you found it “unreasonable” to excluded the public from these workshops, but failed to do the second step, to investigate what effect the closed workshops had to the general public and how this correlates with a higher number of LGOIMA requests. We highlighted this at the time, but our comments were simply ignored.
You write: “After the 24 requests were refused the Council placed the complainant on a communication management plan”. Again, that’s an error in fact finding. 24 was the number of requests that we were allowed to bring to the Office of the Ombudsman. Then we were restricted to complain about any more of the refused requests under s17(h) LGOIMA.
You write that you considered “that the ongoing information requests did not appear necessary to support the complainant’s legal proceedings”. It is almost hard to see how such a statement can still be made in good faith. This line alone contains 3 fundamental errors.
First, under the offical information regime, requested information does not need to be “necessary to support […] legal proceedings”.
Second, the Office of the Ombudsman had no detailed insight into the legal proceedings at the time, and surely no insight about proceedings that have not yet commenced. Consequently, any finding as to the necessity of the requested information for legal proceedings cannot be made.
Third, as a matter of fact, some of the requested information was indeed required for legal proceedings. The Office of the Ombudsman was explicitly made aware of this at the time the relevant complaints were made. For example in one of the complaints it was mentioned that “the information is needed for a defence in a legal proceeding”.
You write that the “decision to refuse some requests under section 17(h) did not appear to be causing the complainant any genuine disadvantage in terms of access to information”. As demonstrated at the point above, the Office of the Ombudsman was made aware that information was needed for legal proceedings. But not having had access to that information (and still not having access to the information now, 2 years later) undoubtedly caused a disadvantage, because legal proceedings could not be defended adequately.
You write that “the sheer volume of the complainant’s requests required a disproportionate amount of Council staff resource to respond”. There was no fact finding to support such a conclusion. As quoted in the case note itself, the Council always used a standard text to notify about the refusal. At worst, this would be a 1-minute copy-and-past job for each refused request. Even for 150 refused requests (which as mentioned is the wrong number) it would take Council less then 3 hours to refuse each of them. In contrast, Council’s in-house lawyer confirmed publicly that responding to a single LGOIMA request (meaning releasing information) would on average take 4 hours. So the refusal of all of our LGOIMA requests under section 17(h) took less time than responding to single request for information, for which information is actually released.
You write that “a number of requests were for information that was already publicly available”. We are only aware of a single request, where requested information was already publicly available, but at the time we did not know that this was the case. However, it is an irrelevant factor for a section 17(h) analysis, because if information is already publicly available then section 17(d) applies.
You write “Questions which require an agency to provide an explanation or defend a position will not generally be considered requests for official information.” This statement appears to be misleading, because just a few lines further down in the proposed case note, you write about request made under section 22 LGOIMA (‘Right of access by person to reasons for decisions affecting that person’). Under section 22 LGOIMA an agency must create information and “provide an explanation” in form of a written statement of reasons for a decision or recommendation made.
You write that you “acknowledged the tone of the complainant’s correspondence was polite”. That line seems a bit ironic given the outcome of another Ombudsman investigation, in which you looked at the exact same documents and concluded we would “harass” Council staff, and Council was entitled to rely on section 7(2)(f)(ii) LGOIMA (improper pressure and harassment).
You write that “some of the requests if made in isolation may not be considered vexatious”. As stated already earlier, you asserted that you have not looked into each of the requests individually, consequently any finding that “some of the request […] may not be considered vexatious” cannot be made. Until today, we were not informed that any of the requests looked at in isolation would have been considered vexatious. Such an affirmative statement would probably be hard to make, because we provided details on the background and purpose for each LGOIMA request.
You write that “the Council was not automatically relying on section 17(h) but giving due consideration to each request”. This statement not only contradicts what some of your staff noted in a phone call with us, where he described the Council’s refusals as a “blanket approach”. Even more concerning, it is in stark contrast how the Council treats requests for a certain group of documents. By way of example, many people tried to get access to Council’s Delegations Register. Categorically, the Council refused these requests under section 17(h) LGOIMA, even when the requester only ever made 2 LGOIMA requests to the Council. That alone proves it is not about the number of request, instead it is about the nature of the information that is sought.
We are aware that another requester has lodged a complaint with the Ombudsman concerning the Council’s reliance on section 17(h) LGOIMA in relation to requests for Council’s Delegations Register. We are particularly concerned that the Ombudsman upheld the Council’s decision to refuse access under section 17(h) by relying on the Council’s refusal of an earlier request for the exact same documents. However, that earlier refusal was itself the subject of an Ombudsman complaint, which, despite having been lodged two years ago, remains unresolved. It is therefore troubling that in correspondence relating to a different complainant, the Ombudsman refers to that earlier matter as though a determination had already been made. Reliance on an unresolved complaint to justify subsequent refusals under section 17(h) raises serious concerns about procedural fairness and the consistency of the Ombudsman’s approach.
You wrote that “the complainant still had reasonable access to Council information”. As already demonstrated above, as a matter fact, that was clearly not the case.
You concluded your case note with the following:
“The Ombudsman suggested that the complainant review the frequency and nature of their information requests to the Council. The Ombudsman also suggested the complainant may wish to prioritise the requests that were most important to them”.That is exactly what we did. In the second half of 2025, after the Ombudsman provided his opinion on the vexatiousness matter, we only made a handful (5) of LGOIMA requests, precisely the ones that “were most important” to us. But still the Council considers some of them vexatious, and clearly not surprising, the one that requested a specific version of Council’s Delegations Register. Undoubtedly, the Council’s current use of section 17(h) LGOIMA has nothing to do with the “volume of requests”, but instead to avoid accountability.
Errors on wider issues
One fundamental error in your case note, as well as during the investigation process itself, can be summarised as: Who is the complainant?
For the purpose of your investigation and case note the “complainant” is an incorporated society and some of its members mixed together. Why only some of its members is unclear. However, it is an error when not handling complaints by different persons (whether a natural person or legal person) separately from each other. We brought this issue to your attention and in response you noted earlier this year:
In my view the Council is entitled to take a realistic approach and is not bound by legal formalism in this context. […] There are commonality of interests and objectives evident in the requests made by yourselves and Tasman Democracy. I do not consider it unreasonable for the Council to have recognised it as such. I am therefore satisfied that it was not unreasonable for the Council to decide to impose these restrictions on Tasman Democracy and you both personally.”(emphasis added)What you called “legal formalism” is applicable law recently enacted by Parliament. Section 78(1) of the Incorporated Societies Act 2022 provides:
“A member is not liable for an obligation of a society by reason only of being a member.”Relevantly, also the reverse applies, that a society is not liable for what its members do in their private capacity. By blurring the line between an incorporated society as a distinct legal entity and its members, one can quickly run into issues like discrimination. We put this to you already in the past, however it remained unaddressed.
By way of example, none of Christin’s correspondence with the Council was considered vexatious. Therefore, she was not part of any complaint to your Office regarding section 17(h) LGOIMA. However, your final opinion on this matter miraculously includes also Christin’s personal email addresses. Now, after the Ombudsman’s final opinion included her, some of her personal LGOIMA requests are also considered vexatious by the Council, explicitly pointing to the outcome of the Ombudsman investigation she was never part of.
The proposed case note does not at all consider that Tasman Democracy was working on many relevant issues for the whole district as stated above, but instead entangles personal dealings and requests with the work of the organisation, inflating personal matters and court dealings.
The important personal cases which were brought to the Office of the Ombudsman under urgency back in 2024 relating to the Council’s use of warrants as well as the Delegations Register, which were hugely important and remain to this day, had not been looked at. Interestingly, the case note makes mention that policies cannot be withhold, yet the complaint regarding Council’s Delegations Register remains not looked at by your Office, even that it was made under urgency and now already 2 years have passed.
The case note mentions “administrative burden and effect on staff”, but regrettably fails to analyse if that was caused by the “complainant". An external review of the Council’s Legal Functions found that their legal team is under-resourced in relation to workload and similar sized councils. Interestingly, these findings were already made before the “high volume of request” were submitted.
You write: “The Ombudsman considered the requests collectively. It was necessary to consider the whole context for each request, including any pattern of requests.” That statement means a “context” was created, which can only come from personal dealings of some of our members before the organisation was incorporated. Looking through this lens (“the context”) every single request coming from our organisation is already negatively tinted, and not objectively assessed, since the very first day when our organisation was incorporated.
It was bemoaned that we showed dissatisfaction with some of the Council’s responses or asked follow-up questions. But what if a response would not answer a request? Or even create more questions than providing answers? Is that something that can be held against the requester? It appears the investigation did not consider at all whether the Council’s responses to other requests were adequate, but instead presumed it was. Simply criticising the requester as opposed to equally look into both the content of the request and response, does not provide a full picture, or as you call it “context”. This is unfortunate as it creates a misrepresentation of an assumed “context” which was given “significant weight” both by the Council and the Office of the Ombudsman. This does not seem to align well with the principle of natural justice.
You noted that the Council placed us on a “communication management plan”. This measure clearly stated it would limit our access to official information under LGOIMA. As we already explained in our complaint to the Office of the Ombudsman in regards to this “communication management plan”, the Court of Appeal accepted in Commissioner of Police v Ombudsman that the OIA (and consequently also LGOIMA) is a constitutional measure and noted “it contains in effect its own code, providing sufficient indications of the right approach in its application to make resort to consideration ab extra unnecessary”. This means an external instrument, like Council’s “communication management plan”, cannot regulate or restrict the access to official information. Therefore, this background cannot have an influence whether or not a request is considered vexatious under the Act, as this would contradict established case law.
Another crucial point was not mentioned in your proposed case note. If the Council was really stressed about a higher number of LGOIMA requests, why did they not use the tools that are readily available to them to deal with the situation, e.g. extension of timeframe (section 14 LGOIMA) or charging for the supply of information (section 13 LGOIMA). Such an analysis would surely be necessary to get a good understanding of the “context”.
Lastly, in your email to us it was noted: “We have decided to publish this case note in the public interest to promote learning, transparency and accountability.” We wonder how the proposed case note could promote transparency and accountability, when all it does is to confirm the Council’s position to withhold information. In our view transparency and accountability is promoted when more information is released, not less.
For transparency reasons we decided to publish this letter as well as your proposed case note and other relevant documents on our website tasman.org.nz so that the general public has the chance to make up their own mind regarding the performance of the Council and the Chief Ombudsman.