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OIA-rony

By Steven | March 1, 2011

The Independent Police Conduct Commissioner has criticised the police for releasing files relating to the charges against Tony Veitch that he didn’t plead guilty to.

She found that the police should have kept their promise to contact Veitch before releasing the 358 documents. And, in fact, they shouldn’t have released the documents at all. The police’s excuse that they were looking to “balance the public debate” didn’t fly: the documents (an initial summary of facts, witness statements, etc) did not contribute to any public debate because they “comprised unproven allegations (including evidence inadmissible in a Court) and formed no part of the Police case once the Crown had agreed to the plea bargain”.

This outcome is probably right. As the Chief Ombudsman pointed out, the police are required to consider whether harm to a person’s privacy justifies withholding information, and whether that is outweighed by public interest considerations. Here, documents containing criminal allegations against Veitch in relation to charges that were withdrawn by police were matters in which he had a privacy interest. It’s not clear how their release would have served the public interest, particularly where Veitch wasn’t given a chance to have input into the release decision. Releasing these sorts of documents may also make witnesses more reluctant to come forward, and accused people more reluctant to co-operate with police.

Still, the case is rich with ironies. Foremost among them is the fact that the police are getting a rocket for handing out information. As the Ombudsmen point out in their latest annual report, the Police consistently trigger the most OIA complaints – for their failures to release information. In my experience, the police are awful at complying with the OIA, a bad look for an agency charged with enforcing the law. When I sent them an OIA request for my research on the OIA, they ignored it, despite the fact (as I pointed out in my letter) that the project was conducted under the auspices of a supervisory committee that included the law school’s dean and an Ombudsman. If a request with that sort of backing can’t prise information out of the police, heaven help anyone else who has a go at it.

The investigation showed that the police’s OIA request handling systems were in disarray. That seems to have been addressed. But it would be a sad thing if this report makes it even harder to get information from the police.

Second irony: the police cited the public interest in receiving the information to justify the release. I don’t think they have ever used the public interest balance to override a withholding ground before. I wish they’d do it a bit more often.

Of course, what’s sauce for the goose is sauce for the gander. When the media asked for Kristen Dunne-Powell’s police file, the police released that too, in order to balance the public debate. Actually, they didn’t. They refused. It really looks like they were playing favourites.

It didn’t help that they released initial witness statements – but not the briefs of evidence that were significantly different. Veitch’s lawyer said this made things worse. The police said this was “for expediency’s sake and to reduce the volume of material to be released”. No-one has pointed out that these are not reasons for withholding information under the OIA, and they’re rather telling of the police’s attitude. Did the police at least mention that they were holding some documents back? What grounds did they invoke? “Expediency”?

Also ironic: the Authority disagreed with a key aspect of the Ombudsmen’s interpretation of the OIA. The Chief Ombudsmen said there was no public interest in the release of the documents because it wasn’t the police’s role to balance the debate. The Authority said (surely rightly) that this was the wrong question. The police’s role is beside the point. The right question is whether the release would in fact serve the public interest by contributing to a balanced public debate. On that question, both the Authority and the Chief Ombudsmen agreed: it wouldn’t, because the material had not been tested in court.

Wait a moment. The material had not been tested in court? Almost all of the information published in the media has not been proved correct in a court. When a credible person makes an allegation about a significant matter, that gets reported. As a test for whether some particular information contributes to a balanced public debate, it’s absurd to ask whether it’s been proved correct in court. 

We might say that the culpability of a sports broadcaster for alleged offences related to another offence he’s pleaded guilty to simply isn’t a matter of public interest. We might say that this is a matter of public interest, but that the documents don’t really bear on it, or the public interest is not powerful enough to outweigh the privacy interest in the investigation documents. We might say that the witnesses themselves have privacy interests. But we can’t say that just because particular allegations haven’t been tested in court, there’s no public interest in them.

As Eady J said in W B v Bauer Publishing Ltd:

It cannot be right that a person who has been acquitted of a criminal charge, or against whom proceedings have been discontinued by the prosecuting authority, is never to be subjected to a further inquiry (eg through investigative journalism) with a view to establishing whether he truly was the culprit. There are remedies in libel if the media, having carried out such investigations, choose to publish allegations which they are unable to prove. It would in my view be a startling restriction upon their freedom of expression if they were also to be restrained by a (judicially imposed) law of privacy even in circumstances where they were willing to mount a defence of justification.

We should perhaps remember that there is nothing to stop any of the people who provided statements and witness briefs to the police from talking to the media. It’s hard to believe that Veitch would have a privacy remedy if they did (though if they mis-state facts, there may be a defamation case). What’s more these people were prepared to stand up in court. Veitch pleaded guilty to one of the offences, which at least raises questions about the others. He has held a prominent public position. There has been a lot of coverage of the allegations, much of it partisan and ill-informed. The allegations were serious. There’s also an interest in examining the workings of a prominent plea-bargain.

Have I just demolished my initial agreement that there was a proper privacy interest here and insufficient public interest to justify disclosure? You make the call. My point is that if the police’s release of the information was slapdash and biased toward the complainant, the Ombudsmen’s and Authority’s conclusion that release was unjustified also failed to grapple properly with the interests in play, I think. And in so doing, they have made it even harder to get information out of police even when there may be a compelling public interest in it.

Topics: Official Information Act | 48 Comments »

48 Responses to “OIA-rony”

  1. metanarratives Says:
    March 2nd, 2011 at 8:19 pm

    Police are well known for playing favourites and politics – there are contradictions throughout the force.

    It is generally difficult to research matters that don’t make it through court and police conduct. Doesn’t open justice also extend to the prosecution process? I think it does – it is state conduct, isn’t it? Criminal justice researchers have spilled much ink pointing out what matters most in criminal proceedings is not what happens in court. The conception of court as the most important stage is illusionary. The area of highest impact is pre-court, what happens at the police station – a series of discrete discretionary decision making – where impact is greatest.

    Reason for this? Court is an area of high visibility – transcripts are taken, records are kept, public can attend, relatively well trained personnel are present – appeals can be taken. There is scrutiny. At the Police station visibility is low, power is typically individually centralised in officers who have little legal training and little scrutiny. In New Zealand, prosecutorial discretion is vested in the Police – typically the investigating officer calls the shots with little scrutiny. Crown solicitors only take responsibility for a file upon guilty plea or once a defendant is committed to trial (even then often, as was found in England and Wales, with the formation of the CPS police influence and demands still continued to permeate).

    The leading research in this area is “Case for the Prosecution” by Mike McConville & Andrew Sanders. The research involved access to over 1000 police files. One of their most striking findings from the research was the lack of compliance with Prosecution Guidelines by the Police. Only in one case was there evidence the guidelines were applied. I do not doubt this is different in New Zealand – a New Zealand Law Commission report “Criminal Pre-trial Processes: Justice through Efficiency” recently gave the police a good thrashing for their conduct of prosecutions and the exercise of discretion. The Law Commission identified a general lack of care and scrutiny exercised by the police when deciding whether to prosecute and in laying charges – overcharging is a huge issue. It noted mistakes, unfairness and inefficiencies were common. It also noted a general lack of accountability.

    Of course there is a substantial public interest in further exploration of these issues – particularly using case material. Trying to use the OIA to do it – build a sample – would be near impossible.

  2. metanarratives Says:
    March 5th, 2011 at 5:48 pm

    Further response:

    (1) Of course the Police should have kept their promise to advise or consult before releasing the material. Even if no promise was made, they ought to have done this anyway.

    (2) You rightly point out the distinction between (a) information heard in court, “unproven” information used in court or information used to found the police case and (b) information not used in court (eg inadmissible), information that comprise part of the Police’s court case, information found on the police file is a nonsense. New Zealand Courts in a number of cases have indicated there are no special rules whether information is used in court or not. See Rogers v Television New Zealand [2008] 2 NZLR 277, Television New Zealand v R (David Bain’s extended family) [1996] 3 NZLR 393 and M A v Attorney General [2009] NZCA 490, para 43-5, Baragwanath J for the Court.

    (3) You state “Releasing these sorts of documents *may* also make witnesses more reluctant to come forward, and accused people more reluctant to co-operate with police.” This is often bandied out, especially by the police, often with not much sophistication. I would really like to see some empirical support for this proposition – the mix of factors that influence a decision to report or make a statement, how this factors in the aggregate? Supreme Court in Rogers said (para 48):

    “The Court of Appeal in R v Mahanga [2001] 1 NZLR 641 at para [44] rightly saw the suggestion that suspects might be deterred as a speculative proposition. It observed that there had at the time of that case been recent incidents in which the police had themselves facilitated access to such interviews, which indicated that they had no such concerns.”

    In Rogers the Supreme Court was provided with an affidavit from Marie Dyhrberg to the effect that criminal defence lawyers may be even more less inclined to advise clients to give police interviews. Interesting to know whether this has happened post Rogers. I doubt it has.

    Maybe parallels can be drawn between the ‘chilling effect’ mentioned in Police v Campbell [2010] 1 NZLR 483 and this issue (deterrent effect). Randerson J at para 45 :

    “…it is impossible to identify the existence of such an effect [chilling effect] with any certainty and, if identified, to established how great its impact may be.”

    In that case there was expert evidence (para 45) that the effect depends on nature and extent, pattern and frequency. Nothing is fixed. Consideration needs to be given to the overall circumstances and context.

    (4) With regard to your own research and methodology, probably something you didn’t have much choice or control over, given the rise of university ethics committees, in contacting government agencies whether to give researcher credential information and the research topic details. Some purist researchers would never provide this type of information – potential to influence and bias the response.

  3. Graeme Edgeler Says:
    March 5th, 2011 at 7:04 pm

    In my experience, the police are awful at complying with the OIA, a bad look for an agency charged with enforcing the law.

    From a post by I/S:

    In the six months to June 31 2010 [the Auckland Police] district had handled 2279 requests. Six of these had poor data (e.g. typos in dates) so I don’t want to guess at them. Of the remaining 2273, only three were late. The median response time was one working day.

  4. Steven Says:
    March 7th, 2011 at 10:27 am

    Graeme: kudos to the Auckland police district. But that response rate is by no means uniform across the police force. Most of my dealings have been with police national headquarters. Anyway, a quick turnaround does not indicate compliance with the OIA. Quick responses may can be unlawful refusals. We’d have to look at the content of the responses to see whether the law was properly complied with.

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