The Ombudsman said the former minister was wrong to have withheld emails from Newsroom, which one law expert said showed a "tendency to go looking for reasons not to disclose information"
Chief Ombudsman Peter Boshier has concluded that former Labour minister Stuart Nash breached the Official Information Act by improperly withholding emails in which he discussed confidential Cabinet discussions with two of his political donors. The decision highlights ongoing problems around disclosure of official information by government officials and establishes new expectations for how ministers respond to Official Information Act (OIA) requests.
In June 2020, Nash emailed Troy Bowker and Greg Loveridge to inform them that during a Cabinet discussion about which companies would qualify for a rent relief program, he had “lost this argument” to other ministers. In addition to being substantial donors to Nash, both Bowker and Loveridge have significant commercial property holdings.
READ MORE: * Nash donor lobbied for high-wealth tax study exemption * Call for official information penalties following Nash saga * Evidence Stuart Nash breached official information laws
Nash added, “I am as annoyed (and surprised) about the final outcome of the ‘commercial rent relief package’ as you are.” The comments breached rules that require ministers to keep Cabinet discussions confidential and support the final decision made.
In June 2021, Newsroom made an OIA request for “All written correspondence and details of the nature and substance of any other communication since the start of 2020” between Nash and certain political donors, including Bowker.
Nash denied the request and said, “I hold nothing that is within the scope of your request as the Act relates only to information provided to me as minister. I must therefore refuse your request under section 18(e) of the Official Information Act as the information does not exist or cannot be found.” The emails were leaked to Stuff earlier this year, prompting Prime Minister Chris Hipkins to describe them as “inexcusable” and dismiss Nash as a minister. Nash subsequently said that he will not stand for reelection as an MP.
Newsroom complained about Nash’s original response, let the complaint lapse after delays in the investigation, then revived the complaint after the emails were made public. Nash initially defended his decision by saying he had sent the emails to Bowker and Loveridge as an MP, not a minister, and that they therefore weren’t subject to the OIA.
Otago University law professor Andrew Geddis later told Newsroom that Nash’s argument made no sense. “That would allow Nash to take off his hat as minister, where he learned all the information, where he found out what happened in the Cabinet ... put on his hat as an MP and then tell this to people and say, ‘Well, I don’t need to tell anyone about it’.”
Geddis said Nash’s response showed “a tendency to go looking for reasons not to disclose information,” which undermined the spirit of the OIA.
On Monday, Boshier agreed and concluded that the emails with Bowker and Loveridge “were held by Mr Nash in his ministerial capacity, and Mr Nash should not have refused [Newsroom’s] request for this information under section 18(e) of the OIA.”
Boshier added that Nash could have withheld the emails under s 9 of the OIA, which allows government officials to withhold information to “maintain the constitutional conventions for the time being which protect ... collective and individual ministerial responsibility.” However, Boshier said that withholding the emails on that basis would be “subject to release of a summary of the emails to meet the public interest in accountability and transparency”.
Boshier said he would normally have considered referring Nash to the Cabinet Secretary “in light of the contents of Mr Nash’s first email disclosing Cabinet discussions”, but that subsequent events had made that unnecessary.
In announcing his decision, Boshier also set out his expectations about how future ministers should respond to OIA requests. He emphasised the importance of transparency and underlined the OIA’s broad application.
“This case highlights the potential for the roles of an MP and a minister to overlap and for information to be held in both capacities. The Official Information Act is an important constitutional safeguard. It is based on the principle of making information available,” said Boshier. “In my view the OIA should apply where there is a ministerial overlap of any kind.”
