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Railing against illegal disclosure

By Steven | August 24, 2012

On late Wednesday night, Kiwi Rail obtained an injunction stopping Radio NZ publishing copies of a leaked draft plan about its infrastructure and engineering. The next day (after distributing a press release about the injunction, I’m told) Labour MP Phil Twyford used parts of the draft plan to ask questions of government minister Gerry Brownlee. Was the infrastructure in danger of declining? Were there safety issues? Gerry Brownlee seemed to waver between not knowing what Twyford was talking about, and knowing full well. He hadn’t been advised about these issues, he said, and also that Twyford seemed to be basing his questions on a misinterpretation of a stolen scoping report. The media have been noticeably quiet in their reports on this, particularly before the High Court relaxed the injunction to exclude fair and accurate reports of yesterday’s statements in Parliamentary debate.

What’s the law here? Why was Kiwi Rail granted an injunction against Radio NZ? And so quickly? What about the public interest? Also, what’s the good of an injunction if it can be circumvented in Parliament? Who is allowed to report what?

Breach of confidence law

I was interviewed today on Morning Report on some of these matters. In short, it looks to me as if the injunction was based on breach of confidence. Kiwi Rail need to show that the draft plan had the necessary “quality of confidence” (that is, it’s essentially still secret, even if known to a small group); that it was “imparted in circumstances importing an obligation of confidence” (that is, it was created and distributed on the understanding that it was to be kept secret); and that there is public interest in keeping it secret. That last requirement only applies to government trying to gag people from revealing information about itself, as opposed to a private agency like Telecom. The idea is that we all have an interest in being able to criticise Parliament, so the government should have to show why that doesn’t apply here. If KiwiRail can make out such a case, then RNZ are probably bound by the confidence as well. Third parties are roped in when they receive material that they know (or should know) is meant to remain confidential.

The reality is that these elements are usually not difficult to prove, especially where a document (as here) is marked “confidential” and is distributed only to a limited number of people for particular purposes and on the understanding that they are not to be passed on.

RNZ would then need to make out a defence.  They might argue that it’s in the public domain. They might argue that it’s in the public interest. The reality is that this is trickier to prove. There may be complicated arguments about what sort of harm might be done by disclosure and whether that is outweighed by the benefit to the public in knowing the information and holding the government to account.

So the law is in favour of someone seeking an injunction like this. That’s doubly so if the injunction application is an urgent, get-the-judge-out-of-bed application. The are ways of ensuring that the other side gets heard in urgent cases like this, but it’s on very short notice and with very little information. There’s no real ability to argue the case properly. Judges usually grant an interim injunction as a holding pattern and set a date for argument within a week. That’s what happened here.

Interim injunctions

It’s hard to criticise the judge. Kiwi Rail was no doubt alleging that all sorts of terrible harm would befall it if this information was published, and it surely had a good case that the material was confidential. And she was no doubt aware that the injunction would only be for a very short period of time. The very short notice given to RNZ would have made it difficult to marshall arguments to resist the injunction.

Still, I’m a bit uneasy about this process. After all, the courts have said that injunctions that affect freedom of expression can only be granted for clear and compelling reasons. It’s not enough to raise a mere arguable case. Here, the evidence hadn’t even been filed when the injunction was granted. What’s more, there were some fairly clear indications that at least some of the material raised serious public interest issues. But at the end of the day, I’m not sure the judge had much choice. I would expect her to take a harder line with Kiwi Rail at the full hearing (which I’d hope would be next week).

Deja vu: the NZ Post case

Interestingly, this is exactly what happened in 2001 when Richard Prebble got hold of a NZ Post’s business plan for Kiwi Bank. Some of the material had been disclosed in Parliament.

NZ Post applied for and was granted a brief interim injunction against him pending full argument. After full argument some days later, the injunction was denied. Justice Gendall pointed out that NZ Post was publicly owned, that the report contained matters of public interest, that much of it was already in the public domain, and that the issues were deserving of public debate. The parallels are obvious, and they suggest that Kiwi Rail may face a similar uphill battle.

On the other hand, in NZ Post, the defendant was an MP, there may have been a wider circulation of the business plan, NZ Post had provided it to the government, and the government had made use of some of it for its own purposes. Those factors aren’t present here.

I think Justice Gendall was right to deny the injunction then… but not for all the right reasons. I think he applied the wrong test – looking only for an “arguable case” (for trainspotters, that’s the standard in American Cyanamid) even though the Court of Appeal ruled in Fahey (the doctor and mayoral candidate caught on TV3’s hidden camera sting) that:

Any prior restraint of freedom of expression requires a much higher threshold than the arguable case standard.

What’s more, Gendall J didn’t consider the cases that require the government to show that secrecy is in the public interest.

Locking the case up in the courts

There is a danger in cases like this that the judge may be tempted – even after next week’s hearing – to hold that the issues concerning public interest require a full evidentiary hearing. That would be likely to lock the case up in the courts for months, and possibly years. That’s what happened in the Winebox case, where material that was surely in the public interest didn’t come out for two years. It is not an unsensible strategy for a plaintiff to argue that public interest issues require careful consideration based on the full evidence and should not be decided at an interlocutory (that is, pre-trial) stage, and that the injunction should be continued in the meantime. There may even be occasions when such an argument is correct.

I have to say, I am extremely sceptical of the sorts of projected harms that are routinely advanced in support of cases seeking to keep a lid on material that might be embarrassing to governments. Look at Wikileaks, the Pentagon Papers, Nicky Hager’s Other People’s Wars: these contained extremely sensitive information and their release did not make the sky fall.

I take some comfort in the fact that lawsuits like this are rare. It is because they are often spectacularly counter-productive. They get everyone excited about the contents of the documents. People start wondering what the organisation is trying to hide. The contents then often start being hinted at or dribbling out all over the place. The story has legs. Most PR people will say it’s better to get the stuff out there, deal with it, and move on.

The rest of the media

Can the rest of the media (or anyone else) publish this draft plan? After all, the injunction is only againt Radio NZ. The answer is  that it would be very risky. There is a string of cases in the UK that make it clear that it can be a contempt of court to publish material that someone else has been gagged from publishing, because this would frustrate the purpose of the injunction and undermine the authority of the courts.

What about MPs?

That risk applies to them too. Of course, if they disclose the contents of a gagged report on the floor of the House, then they are immune from lawsuit or prosecution. But if they do it outside the protection of Parliamentary privilege, they are potentially liable for contempt. And if they undermine court processes by their statements within the House, they may be hauled up before the House’s Privileges Committee. I think it’s fair to ask questions about the appropriateness of Phil Twyford taking it upon himself to use the umbrella of privilege to gazump the effect of a court order.

Can the media safely report what happens in Parliament?

The media think so. “Anything said in Parliament may be quoted with impunity”, writes Jane Clifton. She’s only half right about that. The media (and others) have a statutory qualified privilege against defamation lawsuits when they fairly and accurately report on what happens in Parliament. But that protection doesn’t include a shield against lawsuits for other wrongs – breach of a name suppression order, for example, or contempt of court, or breach of confidence. In practice, though, it’s very unlikely anyone would be successfully prosecuted or sued for reporting what happened in the House. That’s especially so with breach of confidence, given that it would be hard to convince a judge that something said in Parliament hadn’t fallen into the public domain such that it had lost its quality of confidence.

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