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Veitch injunction

By Steven | May 21, 2009

Who would have guessed it? (Not me). The injunction barring the media from publishing the information released by the police under the Official Information Act, seems to be based on breach of confidence.

The Veitch team (headed up by heavyweight litigator Jack Hodder SC) argued that Veitch was not consulted on the release; he had a “legitimate expectation” that he would be consulted; that some material is “confidential and ought not to be released under the Act”; and that the publication would cause him irreparable harm.

Those grounds sound more like grounds for judicial review of the police decision to me. The police could have withheld some of the information, and should have consulted Veitch before making its call, and improperly released it. Yet this doesn’t seem to be an application for judicial review, and if it was, it doesn’t apply to Fairfax, APN and TVWorks, who’ve all been sued along with the police.

In fact, it’s difficult even to see how it makes out a good claim against the police. They can release information under the OIA, or can withhold it on grounds including, for example, privacy or (loosely speaking) confidentiality. The Ombudsmen have said it’s good practice to consult those affected before release. But it’s not mandatory under the legislation. (It’s possible, I suppose, that the police did consult Kristen Dunne-Powell). It seems, however, that the police promised Veitch last month to advise him “at such time as it is determined what information will be released”. But was this a promise of consultation? If so, does it make the release of information illegal? It’s a stretch.

Worse still, for Veitch, section 48 of the OIA immunises the police from civil or criminal proceedings connected with the making available of the information in good faith under the Act. That’s backed up by the recent High Court decision in Director of Human Rights Proceedings v Commissioner of Police. The immunity is wide, the case held. Even if the police could have invoked a withholding ground, but didn’t, that’s not bad faith, and that’s still making information available “pursuant to the Act”.

One might wonder at the reasons for the police’s very fullsome information release in this case, compared with its patchy record of releasing information to the media in other situations. But bad faith is a very high threshold.

So what about the media? Even if Veitch can establish that some of the police material was subject to an obligation of confidence, how on earth is this supposed to affect the media outlets that obtained it through an OIA release? Was the information communicated to the media in circumstances importing an obligation of confidence? No. The opposite applied. It was in an OIA release. Was it clear to the media that they were receiving information that itself had been provided on the basis of confidentiality? No again, I’d say. In fact, Justice Mallon said there was nothing in any of the stories that were already published that the plaintiff could claim ought not to have been released on confidentiality grounds. Might there be some material in the 358 pages that was released that may be obviously confidential, such that the conscience of the media might be engaged? It’s possible I suppose, but seems unlikely.

The OIA doesn’t immunise the media from breach of confidence, copyright, or defamation actions if they publish what’s released. But it certainly puts them on the front foot in arguing that the material isn’t plainly confidential.

The original application sought an injunction against any publication of the OIA material – including stuff already published by the NZ Herald and DomPost. Surely that was untenable from the outset. Once it’s in the public domain, the interest in confidentiality relating to that particular material is lost. Indeed, the temporary injunction ordered by the judge excluded the stories already published.

These applications are made in urgent circumstances, so we should cut the lawyers and judges involved considerable slack when assessing their actions. I’m inclined to be sympathetic with a judge faced with this sort of application who grants a very short-term injunction to enable the parties to argue the case more fully.

But I’ve got concerns about this one, particularly as regards the media. Veitch didn’t identify any particular material he said was confidential, just that “some of the information may be confidential and ought not to have been released”, as the judge put it.┬áThe stuff that was published wasn’t of that nature, according to the judge. Veitch seems to have provided no particular reason for thinking the other material might be. I would have thought that’s the end of the story. You need a better foundation than that to get an injunction.

Even if the material might be confidential, that’s not enough alone to make out a claim against either the police or the media. There doesn’t seem to be enough evidence to suggest bad faith on the part of the police. There doesn’t seem to be any evidence to suggest the media had any notion that any of it may be confidential. Again, that ought to be fatal to an injunction, I would have thought.

Jack Hodder apparently indicated that the grounds of the application may be “refined”. Given the urgency, I’m tempted to conclude that’s fair enough. But why should the media have to hold back on publishing something because of the possibility that a lawyer might be able to think of some better arguments against it?

Justice Mallon concluded: “I am not able to say there are no arguable causes of action.” But the evidence before her seems to have been so speculative and vague and the legal claims so tenuous that I can’t see where the arguable claim lies, especially against the media.

The judge made no mention of the NZ Bill of Rights Act.

The case is set down for Tuesday morning.

Topics: Breach of confidence, Injunctions, Official Information Act | No Comments »

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