1 June 2004
Dear Sir,
Complaint under the Official Information Act about the Minister of Conservation and the Pike River Coal Company
I request that under s 28(a) of the Official Information Act 1982 you investigate and review a decision of the Minister of Conservation to refuse to make official information available to me in response to a request.
The background to this is as follows. On 12 March 2003 the Minister approved under the Crown Minerals Act 1991 an application by Pike River Coal Company Limited ("PRCC") for mining access to various conservation areas adjacent to Paparoa National Park on the West Coast of the South Island.
On 14 March 2004 I requested under the Official Information Act 1982 a copy of the record of the Minister's decision under the Crown Minerals Act 1991 that gave his reasons.
On 29 March 2004 the Minister sent me a 'ministerial' giving a political explanation of the decision. On 8 April 2004 the Minister sent me the document titled "Pike River Access Arrangement", the formal record of the decision taken under the Crown Minerals Act 1991.
On 12 May 2004 I made a further request for the Minister's reasons for the weighting of the matters considered under the Crown Minerals Act 1991 and for deciding on the option of approving conditional access for Pike River Coal Company Limited.
On 19 May 2004 the Minister replied stating
"...I can advise that I decided that the section 61(2)(d) and (e) matters of the Crown Minerals Act 1991 outweighed the section 61(2)(a), (b) and (c) matters. My decision was based on the information set out in the departmental submission and from a site visit. No arithmetical weighting was given to the matters to be considered under section 61(2); rather my decision was based on the totality of the evidence before me. The details of the proposed partial safeguards and the compensation are set out in the departmental submission."With respect to the Minister this is an unsatisfactory response and amounts to a with-holding of official information.
The departmental submission to the Minister entitled "Pike River Access Arrangement" does not conclude on the weighting to be given to the matters to be considered by the Minister under section 61(2) of the Crown Minerals Act 1991.
That section states:
"In considering whether to agree to an access arrangement in respect of Crown land, the appropriate Minister shall have regard to:The departmental submission to the Minister concludes on each of these matters in its own terms. At page 14 paragraph 66 it states:
(a) The objectives of any Act under which the land is administered; and
(b) Any purpose for which the land is held by the Crown; and
(c) Any policy statements or management plan of the Crown in relation to the land; and
(d) The safeguards against any potential adverse effects of carrying out the proposed programme of work; and
(e) Such other matters as the appropriate Minister considers relevant."
"PRCC's application is inconsistent with the matters covered by section 61(2)(a), (b) and (c).."In respect of section 61(2)(d) the departmental submission to the Minister voiced concern about safeguarding the potential adverse effects on the natural resources in the Pike Stream area. In respect of section 61(2)(e) the departmental submission to the Minister noted that the financial compensation offered appeared reasonable and that the West Coast Tai Poutini Conservation Board and the New Zealand Conservation Authority had been consulted and had both opposed the application.
The departmental submission does not logically lead to or support the conclusion that the application for access should be granted. Nor does it purport to do so. The reasonable conclusion that can be drawn from it is that the grant of the mining access application was inconsistent with the section 61(2)(a), (b) and (c) matters and was either supported or not supported by the section 61(2)(d) and (e) matters depending on weighting.
The last paragraph of page 16, before the Minister is presented with a choice of options to select, states:
"The key issue for you to decide is whether the proposed partial safeguards and the compensation package offered, are sufficient to outweigh our concerns about the matters covered by section 61(2)(a), (b) and (c),..."It is not correct or reasonable of the Minister to state that his decision is based on the totality of the evidence presented in the departmental submission when that document does not draw to a single conclusion after weighing up the various statutory matters. The Minister must have had reasons for considering section 61(2)(d) and (e) matters to support the grant of access when the departmental submission was equivocal on that point. The Minister then must have had reasons for considering the section 61(2)(d) and (e) matters to outweigh the section 61(2)(a), (b) and (c) matters in order to approve the access application.
"Official information is not only information in written form, but includes information from video or audio tapes, films, or information stored in computers. It can even be information that is not recorded at all, but is within the knowledge of an officer, employee or member of an organisation."
If these reasons have not been documented then the Minister must be able to recall them from his memory. This is official information that the Minister has withheld and I request your help in obtaining it. Copies are enclosed of my correspondence.
Yours sincerely
Simon Johnson
Dear Mr Johnson
This acknowledges recipt of your letter and enclosures dated 1 June 2004. For reference purposes this has been allocated with a file number W52306 and it would be helpful if you would quote this number when communicating with the office.
The matter will now be analysed and you may expect to hear from me or one of my colleagues in the near future.
Yours sincerely
John Belgrave
Chief Ombudsman
Ref: W52306
16 June 2004
Dear Mr Johnson
I have received your letter and enclosures of 1 June 2004, in which you complain about the alleged failure of the Minister of Conservation to provide you with all of the information that you sought by your Official Information request to the Minister of 14 March 2004.
Your complaint appears to be based on your assumption that the Minister must have withheld some information from you as you consider that his decision on the matter in question could not be supported by the information that you have received. Your view is therefore that there must be other information that has not been made available to you
Before I notify your complaint to the Minister, I should be grateful if you would advise me whether, at the same time, you are complaining about the Minister's decision not to make some other information available to you. The Minister has identified the nature of the information, and has withheld it from you under section9(2)(k) of the Official Information Act.
While your letter focuses on your suspicions about not identified, but which you consider exists and has been withheld, it is silent on the matter of the information withheld under section 9(2)(k) of the Official Information Act.
I should be grateful for your advice as to whether you wish this latter matter to be pursued as part of your complaint.
I look forward to hearing from you.
Yours sincerely
Mel Smith
Ombudsman
21 June 2004
Dear Mr Smith,
Your Ref: W 52306
Complaint concerning alleged withholding of official information by the Minister of Conservation
Thank for your letter of 16 June 2004.
Please pursue the information withheld by the Minister under section 9(2)(k) of the Official Information Act.
I understand this to be the financial amounts related to the proposed financial assurances and the compensation amounts not referred to in the Minister's press release of 12 March 2004. This information appears to have been blanked out of the Department of Conservation's submission to the Minister at paragraph 58. This information may well have some relevance to the matter of my assertion that there is some other information that exists that has not been provided to me.
In terms of section 9(2)(k) of the Official Information Act I question what reasonable grounds the Minister has to consider that it is necessary to prevent the disclosure to me of that official information for improper gain or improper advantage.
Of course I wish to 'gain' this information. I wish to use the information to my 'advantage' in terms of my previous complaint to you. My purpose is to promote the accountability of the Minister of Conservation in decisions that are likely to have a significant impact on conservation areas. This is consistent with section 4(a)(2) of the Official Information Act and on that basis my acquisition of the information is, in my opinion, not an improper gain or advantage. I have no links with or financial interests in any mining companies and I cannot be reasonably be expected to know how competing companies, if any exist, would use the information for improper advantage.
Yours faithfully
Simon Johnson
Ref: W52306
28 June 2004
Dear Mr Johnson
I have received your further letter of 21 June 2004, in which you clarify the subject of your complaint with regard to the responses that you received from the Minister of Conservation to your Official Information requests of 14 March 2004 and 12 May 2004.
I have today notified the Minister of your complaint about:
I have asked for a report on these matters and shall write to you again when I have received and considered the Minister's response.
In the meantime I should be grateful if you keep Tony Ilott, the investigating officer who is assisting me in this investigation, informed of any developments which you believe may alter the circumstances pertaining to your request.
Yours sincerely
Mel Smith
Ombudsman
27 July 2004
Simon Johnson
LYTTELTON
Dear Mr Johnson
I refer to your recent complaint to the Ombudsmen's Office which has been referred to the Minister of Conservation for a response.
The first part of your complaint relates to your request of 14 March 2004, for a copy of the record of the Minister of Conservation's decision under the Crown Minerals Act 1991, to conditionally approve Pike River Coal Company's access arrangement application at Pike Stream on the West Coast.
The Minister has advised the Ombudsmen's Office that "after further consideration of this matter I agree to the release of this information and I have advised my department to release this information to Mr Simon Johnson."
Please find enclosed a copy of the relevant paper, now including the financial amounts related to the proposed financial assurances, and the compensation amounts that were previously deleted under section 9(2)(k) of the Official Information Act to prevent the disclosure or use of official information for improper advantage.
The Department apologises for any inconvenience caused by the delay in releasing this information to you.
Yours sincerely
Chris Hickford
Community Relations Manager West Coast Conservancy
Dear Mr Smith and Mr Ilott,
Your Ref: W 52306 Complaint concerning alleged withholding of official information by the Minister of Conservation
Thank you for your letter of 30 July 2004. I confirm that I wish you to proceed to form a provisional view on my assertion of 1 June 2004 that there is other unspecified information, being the Minister's reasons for the weighting of the Crown Minerals Act considerations, that has been withheld.
I also request your assistance under s 28 of the Official Information Act 1982 in respect of another request for information from the Minister of Conservation.
On 24 June 2004 I requested copies of appendices to the document "Pike River Access Arrangement", the formal record of the decision taken under the Crown Minerals Act 1991.
In a letter received on 2 August 2004 and dated 29 July 2004, the Minister of Conservation advised that he is withholding three appendices.
Appendix C8 (a draft resource consent memorandum) has been withheld under s 9(2)(i) and (j) of the Official Information Act 1982. Appendices D1 and D2 (Pike River Coal Company responses to departmental report of 10 December 2003) have been withheld under s 9(2)(h) of the Official Information Act 1982.
I question whether the withholding of Appendix C8 is 'necessary' under s 9(2) to enable the Minister to carry out a commercial activity (s 9(2)(i)) or a negotiation (s 9(2)(j)). The Minister is not carrying out a commercial activity - the Minister is performing the statutory function of entering into an access arrangement in respect of crown land under s 61(1) of the Crown Mineral Act 1991. I question whether it would be at all likely for the disclosure of this information to prejudice or disadvantage the Minister.
I question whether the withholding of Appendices D1 and D2 is 'necessary' under s 9(2) to 'maintain legal professional privilege' when neither of these two pieces of information appears to be in the nature of privileged legal advice given in confidence.
I look forward to your response on these matters and thank you again for your assistance to date.
Yours sincerely
Simon Johnson
I refer to previous correspondence with regard to your complaint about the responses that you have received from the Minister of Conservation to your Official Information Act requests of 14 March and 12 May 2004.
I have received your letter dated 2 August 2004, in which you advise me that you wish to proceed to form a provisional view on your assertion that the Minister has withheld other unspecified information from you. That view is set out below.
Background and Information at issue
Your complaint in this matter is that Minister of Conservation has failed to provide you with all of the information that you sought by your Official Information Act request to the Minister of 14 March and 12 May 2004.
By letter of 14 March 2004, you requested a copy of the record of the Minister's decision under the Crown Minerals Act 1991 that set out the reasons for his approval of a recent application made by Pike River Coal Company Limited.
By letter of 8 April 2004, the Minister provided you the "relevant paper" and advised you that he had withheld certain information under section 9(2)(k) of the Act. You then complained about that decision. That aspect of your complaint has been resolved as the Minister subsequently made available to you the information withheld under section 9(2)(k) of the Act.
On 12 May 2004, you made a further request, in which you sought your reasons:
"for the weighting of the matters considered under the Crown Minerals Act 1991 and for deciding on the option of approving conditional access for Pike River Coal Company Limited".On 19 May 2004, the Minister responded, advising that:
My decision was based on the information set out in the departmental submission and from a site visit. No arithmetical weighting was given to the matters to be considered under section 61(2); rather my decision was based on the totality of the evidence before me. The details of the proposed partial safeguards and the compensation are set out in the departmental submission."You are of the view that:
"the departmental submission does not logically lead to or support the conclusion that the application for access should be granted."You consider that the Minister must have had reasons for considering section 61(2)(d) and (e) matters to support the grant of access when the departmental submission was equivocal on that point."You expressed your concerns in the following manner:
"The Minister then must have had reasons for considering the section 61(2)(d) and (e) matters to outweigh the section 61(2)(a), (b) and (c) matters in order to approve the access application."You then quoted from the Ombudsmen's "Practice Guidlines" in stating:
"Official information is not only information in written form, but includes information from video or audio tapes, films, or information stored in computers. It can even be information that is not recorded at all, but is within the knowledge of an officer, employee or member of an organisation."You concluded your letter of complaint to me with the comment:
"If these reasons have not been documented then the Minister must be able to recall them from his memory. This is official information that the Minister has withheld..."I conveyed to the Minister your observations as set out above and sought his response to them and confirmation that:
"all informattion relevant to [your] request of 14 March 2004 and 12 May 2004, in both recorded and non-recorded form, has been available to Mr Johnson and that the only information withheld from him is that under s 9(2)(k) of the Act."The Minister has now confirmed that "all information relevant to Simon Johnson's requests of 14 March and 12 May 2004, in both recorded and non-recorded form, have been made available to him."
In these circumstances, the issue is now whether section 18(e) of the Act applies. This section provides that:
"18. A request made in accordance with section 12 of this Act may be refused only for one or more of the following reasons, namely:When that section applies it provides good reason for refusal.
(e) that the document alleged to contain the information requested does not exist or cannot be found".
The Minister has advised me that all information relevant to the requests in question have been made available to you. I have no reason to consider this not to be the case, particularly when your view that further information has been withheld from you is not supported by any evidence.
I am satisfied that all the information relevant to your requests of 14 March and 12 May 2004 have been made available to you, and my provisional view is that section 18(e) of the Act provides the Minister with good reason not to make any further information pertaining to those requests, available to you.
My view is provisional at this stage and I am happy to receive any further submissions that you wish to make, before I proceed to form my final view. However, if it is your intention to comment further, I should be grateful to receive those comments within three weeks of the date of this letter.
Turning now to a new matter, in your letter of 2 August 2004, you also advised me that you wish me to investigate and review the decision by the Minister to withhold certain information from you that you hade requested in your letter to the Minister of 24 June 2004. The information at issue in your new complaint is appendices to the document "Pike River Access Arrangement". These are:
- C8 withheld under section 9(2)(i) and (j) of the Act; and
- D1 and D2, both withheld under section 9(2)(h) of the Act.
I have today formally notified the Minister of your latest complaint and have asked to receive the information at issue, together with a report on his essential concerns with the release of the information. I will keep you informed of developments and will let you know when I have formed an opinion on your complaint.
Yours sincerely
Mel Smith
Ombudsman
Dear Mr Smith and Mr Ilott,
Further submission on your provisional view - Complaint W 52306
Alleged withholding of official information by the Minister of Conservation
Pike River Coal Company access arrangement for mining on Crown land
1. Thank you for your letter of 2 September 2004. In summary your provisional view is that the Minister of Conservation has provided all relevant information, that s 18(e) of the Official Information Act (OIA) applies and that no evidence has been provided to support the existence of the unspecified allegedly withheld information.
2. I submit that s 18(e) does not apply and that there is relevant official information, most probably in non-recorded form, that has been withheld. If I had documentary evidence of the existence of this official information I would not have to resort to the provisions of s 28 OIA to obtain it. This submission supplements, but does not replace, my previous requests for investigation.
3. The legislation conferring the discretion on the Minister of Conservation in respect of Crown land held for conservation is the Crown Minerals Act 1991 (CMA). In respect of Crown land it allows for holders of mining permits to apply to the relevant Minister of the Crown for access arrangements.
4. Section 61(2) of the CMA section states:
"In considering whether to agree to an access arrangement in respect of Crown land, the appropriate Minister shall have regard to:
a) The objectives of any Act under which the land is administered; and
b) Any purpose for which the land is held by the Crown; and
c) Any policy statements or management plan of the Crown in relation to the land; and
d) The safeguards against any potential adverse effects of carrying out the proposed programme of work; and
e) Such other matters as the appropriate Minister considers relevant."
5. The Department of Conservation (DOC) completed a final draft report, the 'Conservancy Mining Report' (CMR) or Appendix AA on 10 December 2003 and Pike River Coal Company (PRCC) provided comment on 15 December 2003.
6. The CMR is a substantive report at 94 pages or 360 paragraphs long, not including the 31 appendices, that fully describes the statutory matters considered by departmental officials. It cannot be said to be lacking as material of probative value.
7. The CMR concludes at page 88 para 360 that "PRCC's application is inconsistent with the matters covered by s 61(2)(a), (b) and (c)..." (statutory objectives, land-holding purposes and management plans).
8. For s 61(2)(d), 'safeguards from adverse effects', the CMR concludes "we are particularly concerned about losses to the following natural resources…" (flora, remoteness, water quality, aquatic habitat, threatened native species habitat and the sandstone escarpment) from the following adverse effects (acid mine drainage, subsidence, discharges, and slow rehabilitation).
9. In respect of s 61(2)(e), 'other matters', the CMR considers the compensation offer to be "generally appropriate" and the amount ($1.5 million) "appears to be adequate".
10. The CMR does not conclude with a single recommendation to the Minister based on a discussion of the five statutory matters. It finishes as follows on page 90:
The key issue for the Minister to decide is whether the proposed partial safeguards and the compensation package offered by PRCC, are sufficient to outweigh the Department's concerns about the matters covered by section 61(2)(a), (b) and (c), that is, the objectives of the Conservation and National Parks Acts, the purposes for which the land is held and the relevant management plans."
11. Therefore the authors of the CMR were clearly of the view that they had not weighted the s 61(2) CMA matters and that this was a matter for the Minister personally. Given the past conflicts on the West Coast about extractive industries and natural resources being "locked up" under Departmental management it is not surprising that the West Coast conservancy officials wished the Minister to personally make the decision.
12. The Minister of Conservation has provided the formal record of his decision taken under the Crown Minerals Act 1991 - the report titled "Pike River Access Arrangement" . This concise 17-page document includes both the 'Conservancy Mining Report' as Appendix AA and PRCC's response to it.
13. The first sentence of this document explicitly states that the Minister is to consider (or weigh matters): "We seek your consideration of the Pike River Coal Mining Company Limited access arrangement application …in accordance with s 61(2) of the Crown Minerals Act 1991…"
14. This report concludes, almost exactly in the same way as the CMR of 10 December 2003, that the "application is inconsistent with the matters covered by s 61(2)(a), (b) and (c)..." (on page 14 paragraph 66).
15. For s 61(2)(d) the report notes "we are particularly concerned about losses to the following natural resources…" (flora, remoteness, water quality, aquatic habitat, wildlife habitat and the sandstone escarpment, pages 14 - 15).
16. In respect of s 61(2)(e), 'other matters', the report considers compensation and consultation which was not in the CMR. The compensation offer is considered "generally appropriate" and the amount ($1.5 million) "appears to be adequate". However, the West Coast Tai Poutini Conservation Board "is opposed in principle to the mine and believes its development is not in the best interests of conservation, and does not foster or promote conservation". The New Zealand Conservation Authority "considers that the proposal from the PRCC is not consistent with the purposes for which the land is held" (page 15). There is no overall conclusion for 'other matters'.
17. The report does not conclude with a single recommendation to the Minister based on a discussion and weighting of the five statutory matters. It finishes as follows:
"The key issue for you to decide is whether the proposed partial safeguards and the compensation package offered, are sufficient to outweigh our concerns about the matters covered by section 61(2)(a), (b) and (c), that is, the acts under which the land is held, the purpose for which the land is held and the relevant management plans."
18. The final page is headed "Recommendations and the Minister's Decision". The Minister has marked with his pen from five 'yes/no decisions'; that he has noted the submission, the appendices, PRCC's comments, he has agreed there is enough information, and that he has approved the arrangement, rather than decline or defer it. The Minister has signed and dated the page (12 March 2004) as has the Acting General-Manager (Southern Region) of the Department of Conservation.
19. On 12 March 2004 the Minister issued a press statement that included this comment: "Taking into account the criteria laid down in the Crown Minerals Act, I have concluded that the partial safeguards and compensation deal offered by the company are sufficient to outweigh the inconsistencies between the application and objectives of the Conservation Act under which these lands are held, the various purposes for which these lands are held and the relevant management plans that apply."
20. As you are aware on 14 March 2004 I requested a copy of the record of the Minister's decision that gave his reasons. On 12 May 2004 I made a further request specifically for the Minister's reasons for the weighting of the matters considered. On 19 May 2004 the Minister replied stating:
"…I can advise that I decided that the section 61(2)(d) and (e) matters of the Crown Minerals Act 1991 outweighed the section 61(2)(a), (b) and (c) matters. My decision was based on the information set out in the departmental submission and from a site visit. No arithmetical weighting was given to the matters to be considered under section 61(2); rather my decision was based on the totality of the evidence before me. The details of the proposed partial safeguards and the compensation are set out in the departmental submission."
21. The Crown Law Office (The judge over your shoulder: judicial review of administrative decisions, 1991.) has provided the following advice for Crown departments on the exercise of statutory power.
"it is strongly recommended that you carefully formulate your reasons in your recommendation as those reasons will be critical to the outcome of any judicial review".
"It is vital that the papers reflect all the relevant considerations taken into account and the reason for the decision…If the ultimate decision-maker does not accept in entirety the recommendation or the reasons set out, that difference should be briefly recorded, either on the recommendation itself or in a letter of advice to the affected party."
22. In the decision the relevant statutory matters are the five matters from s 61(2) CMA noted above. These are the matters the Minister must have regard to. The matters are joined by the word "and" so the starting point for their consideration, in absence of reasons given by the decision-maker to do otherwise, would be equal weighting.
23. In two detailed and substantive reports DOC has concluded that of the five matters, three [s 61(2)(a), (b) & (c)] do not support the grant of an access arrangement. With respect to the fourth matter, s 61(2)(d), they remain concerned about potential adverse effects that in their opinion have not been adequately safeguarded against. For the fifth matter, 'other relevant matters' they are equivocal: the compensation appears reasonable but the two statutory conservation bodies are opposed. Of five matters only part of one matter is a consideration in favour of granting the access arrangement. DOC has explicitly not weighted these matters but has stated that it is for the Minister to consider and weigh them.
24. The Crown Law Office advice would be that it is vital that all relevant considerations and reasons be documented and if the Minister, exercising the discretion, decides on a different decision and different reasons from the official's report, then these must be recorded.
25. The Minister made his choice by crossing out the word 'no' and leaving the word 'yes' next to the option "approve the access arrangement" on page 16 of the report 'Pike River Access Arrangement'. The Minister has, in effect, ticked a box. The Minister gives no specific reasons for his choice or what he has had regard to.
26. In his press statement of 12 March 2004 the Minister states he has concluded that partial safeguards and compensation outweigh the inconsistency with conservation objectives. In his letter to me of 19 May 2004 he confirms he decided the s 61(2)(d) and (e) matters of the Crown Minerals Act 1991 outweighed the s 61(2)(a), (b) and (c) matters.
27. It is an absurdity for the Minister to state that his decision was based on the totality of evidence presented to him when the overall thrust of the two reports did not support the grant of the access arrangement. It is an absurdity for the Minister to state that his decision was a comparative weighting of matters and then to state there is no official information in respect of the reasons he can provide other than the record of the decision which does not weight the matters.
28. The Minister's action to select the approval option logically must have been preceded by thought and the formation of intention. I submit that these thoughts and intentions will reasonably still be able to be recalled by the Minister now and the Minister would certainly have reasonably recalled them on the 14 March 2004, two days after his decision, when I first requested his reasons.
29. I submit that these thoughts and intentions are within the definition of official information in the OIA. I quote from Practice Guideline - A3.
"The Ombudsmen consider that the definition of official information also includes knowledge of a particular fact or state of affairs held by officers in such organisations or Departments in their official capacity. The fact that such information has not yet been reduced to writing does not mean that it does not exist and is not "held" for the purposes of the Act."
30. I further submit that the provisional view is not consistent with the final view formed by Chief Ombudsman Sir Brian Elworthy in 1997 in respect of investigation W37833. This was the alleged withholding of reasons by the Deputy Director-General of the Department of Conservation for his decision to grant a concession to Lake Rotoiti Scenic Cruises when the Department's report to him was equivocal. I enclose a copy of a letter to the Royal Forest and Bird Protection Society dated 30 July 1997.
31. I quote Chief Ombudsman Sir Brian Elworthy:
"The report and appendices provide a number of conclusions both for and against the application. To simply advise that these documents contain sufficient reasons to approve the concession subject to the conditions does not, in my view, fully answer your initial request for 'the reasons for the decision the Department made'. I have advised the Department that, 'official information' is defined in the Official Information Act as 'any information' held by a Department, a Minister of the Crown in his official capacity, or an organisation…..Accordingly I have requested that the Department immediately seek from Dr Edmonds his reasons for the decision…"
32. I submit that it is necessary for you to communicate to the Minister that you are not satisfied with his explanation. I also submit that you request him to recall from memory his reasons for his consideration and weighting of the s 61(2) CMA matters that led him to approve the access arrangement.
Yours faithfully
Simon Johnson