Kelsey v Minister of Trade

[2015] NZHC 2950

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-000583 [2015] NZHC 2950

UNDER

The Judicature Amendment Act 1972 and

Part 30 of the High Court Rules

IN THE MATTER OF

An application for judicial review

BETWEEN

JANE KELSEY First Applicant

CONSUMER NEW ZEALAND INC Second Applicant

NGĀTI KAHUNGUNU IWI INC Third Applicant

OXFAM NEW ZEALAND Fourth Applicant

GREENPEACE OF NEW ZEALAND INC

Fifth Applicant

ASSOCIATION OF SALARIED MEDICAL SPECIALISTS

Sixth Applicant

NEW ZEALAND NURSES ASSOCIATION INC Seventh Applicant

NEW ZEALAND TERTIARY EDUCATION UNION TE HAUTŪ KAHURANGI O AOTEAROA

AND

THE MINISTER OF TRADE Respondent

Judgment:                25 November 2015

JUDGMENT (ON THE PAPERS) OF COLLINS J

Kelsey v The Minister of Trade [2015] NZHC 2950 [25 November 2015]

Introduction

[1]      Professor Kelsey has sought additional orders which are described by her counsel as being “supplementary/consequential” to my judgment of 13 October 2015 (the judgment).

[2]      In the judgment I granted applications brought by Professor Kelsey and seven other applicants for judicial review of a decision of the Minister of Trade (the Minister).1   In the judgment I quashed a decision of the Minister made in response to a request under the Official Information Act 1982 (the Act) from Professor Kelsey dated 25 January 2015 for official information contained in eight categories of documents relating to the Trans-Pacific Partnership Agreement (TPP Agreement).2

In the judgment I directed the Minister to reconsider his decision in relation to six of the categories of  documents requested by Professor Kelsey.    I made that order because I was satisfied the Minister had acted unlawfully when he failed to assess all the information requested by Professor Kelsey against the criteria in the Act for withholding  official  information.    Instead  the  Minister  had  adopted  a  “blanket

approach” to Professor Kelsey’s request.

1      Kelsey v Minister of Trade [2015] NZHC 2497.

2      The eight categories of documents requested were:

Category A

The original negotiating mandate for the financial services and investment chapters of the Trans- Pacific Strategic Economic Partnership and the inclusion of the United States in those negotiations, and the subsequent negotiating mandates and/or amendments to those mandates in relation to the Trans-Pacific Partnership Agreement negotiations.

Category B

A list of the titles, dates and topic of all documents tabled by New Zealand in the negotiations.

Category C

All papers tabled by New Zealand during the negotiations up to 31 December 2013.

Category D

All papers tabled by New Zealand during the negotiations since 31 December 2013.

Category E

All proposals for text tabled by New Zealand during the negotiations up to 31 December 2013.

Category F

All proposals for text tabled by New Zealand during the negotiations since 31 December 2013.

Category G

Briefing notes and position papers provided by the Ministry to the Minister, to the Cabinet, to other government agencies or to Opposition parties or spokespersons on general or specific matters.

Category H

Any cost-benefit study, impact assessment or similar analysis or evaluation of the proposed agreement as a whole, of specific provisions, or impacts on particular sectors or policies that have been conducted by or for the New Zealand government.

[3]      The  judgment  did  not  cover  two  categories  of  documents  sought  by Professor Kelsey,    namely    the    information    in    Categories    B    and    H    of Professor Kelsey’s request.  The information in those two categories was not covered by the judgment because on 6 March 2015 Professor Kelsey lodged a complaint with the  Chief  Ombudsman  concerning  the  Minister’s  response  to  her  request.    The Chief Ombudsman upheld the Minister’s decision in relation to the information in Categories A, C, D, E, F and G of Professor Kelsey’s request.  At the time the judgment was delivered the Chief Ombudsman had not reached a final view concerning the information in Categories B and H of Professor Kelsey’s request.  I understand the Chief Ombudsman has still to deliver her final decision in relation to the information in those two categories of documents.

[4]      I shall not repeat the contents of the judgment.  This decision should be read in conjunction with the judgment.

[5]      In  her  application  for  “supplementary/consequential”  orders,  Professor

Kelsey asks that:

… the Minister be directed to assess all the documents in category A, and the

more refined documents within categories B to H against the criterion in s

6(a), (b)(i) and 9(2)(d) [of the Act] and make available this information by

Monday 14 December [2015].

[6]      This judgment explains why I am not, at this juncture, prepared to make the

“supplementary/consequential” orders sought by Professor Kelsey.

[7]      Professor Kelsey initially sought a hearing of her application.   I set the application down for hearing in open court at 3.00 pm on 24 November 2015.  On the morning of 24 November I was informed the parties were content for me to deal with Professor Kelsey’s application on the papers.

Developments since the judgment was issued

[8]      On 9 November 2015, Professor Kelsey received a letter from the Minister in response to the judgment. In his letter the Minister said he:

That extension was made under s 15A(1)(a) of the Act.

(2)was inviting Professor Kelsey to refine the scope of her request in relation  to  the  documents  covered  by  Categories  B  to  H  of  her request.

[9]      On 12 November 2015, Professor Kelsey proposed “interim refinements” to her request in relation to the documents covered by Categories B to H of her original request “while maintaining [her] request for the complete information over time”.

[10]   On 13 November 2015, Professor Kelsey filed her application for “supplementary/consequential”    orders.        In    that    application    counsel    for Professor Kelsey submitted the Minister’s response was not consistent with what I contemplated when I directed the Minister to reconsider his decision and “adhere to his obligations under the Act and apply the law in the way [I] explained” in the judgment.3

[11]     Counsel for Professor Kelsey submitted the Minister’s response in relation to the documents covered by Category A ignored the fact Professor Kelsey’s request was made on 25 January 2015 and that his response to my judgment involved further unnecessary delays in complying with Professor Kelsey’s original request.

Ministry of Foreign Affairs and Trade’s response

[12]     I have considered an affidavit from Mr Harvey, a divisional manager within the Ministry of Foreign Affairs and Trade (MFAT) with responsibility for overseeing his division’s responses to requests for information under the Act.

[13]     In  his  affidavit  Mr  Harvey  has  explained  the  resourcing  and  logistical challenges   faced   by   MFAT   in   complying  with   Professor   Kelsey’s   request.

Mr Harvey has also explained the steps which he and other officials at MFAT have

3      Kelsey v Minister of Trade, above n 1, at [155].

put in place to ensure a full and proper response is delivered to Professor Kelsey’s

modified application.

Analysis

Category A documents

[14]     In his affidavit Mr Harvey has explained the following four key points.

[15]     First,  the  Minister  will  respond  to  Professor  Kelsey’s  request  for  the information covered by the Category A documents by 5 February 2016.  That date reflects Mr Harvey’s best assessment as to when he realistically expects officials within MFAT will complete the review of the documents falling within the scope of the Category A documents.

[16]     Second, Mr Harvey says that there are approximately 30 documents that fall within the scope of the Category A documents and that those documents comprise approximately 750 pages.  Mr Harvey has explained that some of the documents are complicated and require careful assessment by officials, some of whom are engaged in meetings out of New Zealand during the course of November and December.

[17]     Third, MFAT has designated an official who has recently returned from an overseas posting to complete the review of the documents in question.

[18]     Fourth, the Minister will be out of New Zealand during much of December and January.

[19]     I can appreciate Professor Kelsey’s frustration.  She made her application on

25 January 2015.   Mr Harvey’s affidavit acknowledges MFAT has only recently commenced the steps required to properly assess and evaluate what information covered   by   the   Category  A   documents   could   be   lawfully   withheld   from Professor Kelsey.

[20]     I do not, however, see how I can make any orders that could realistically speed   up    the   process   of    ensuring   the    Minister   properly   responds   to

through cross-examination, that it is not possible for the Minister to properly respond to Professor Kelsey’s request concerning the information covered by the Category A documents before 5 February 2016.

Categories B to H documents

[21]     Professor Kelsey’s application for “supplementary/consequential” orders was made the day after she communicated the refinements she was willing to make, albeit on an interim basis, to the information covered by Categories B to H of her original request.

[22]    No doubt the fact Professor Kelsey filed her application the day after she modified her request reflects her intense frustration at the delays that have occurred in properly responding to her original request.

[23]    Counsel for the Minister has, however, explained that Professor Kelsey’s refinements to her request means that responding to that request will no longer require substantial collation or research.   Counsel anticipates the Minister will be able to confirm his position in this regard once he returns to New Zealand during the course of this week.

[24]    In these circumstances, I do not believe it is appropriate to make any “supplementary/consequential” orders until the Minister has considered and responded to Professor Kelsey’s modified request for the information governed by the documents in Categories B to H of her original request.

[25]     In reaching this decision, the Minister and his advisors will appreciate that there should be no further delays in responding fully and properly to Professor Kelsey’s request.

Conclusion

[26]     The application for “supplementary/consequential” orders is declined.

further orders and directions in accordance with the judgment.

[28]     I make no order as to costs.

D B Collins J

Solicitors:

Oakley Moran, Wellington for Applicants

Crown Law Office, Wellington for Respondent