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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 Here, documents containing criminal allegations against Veitch in relation to charges that were withdrawn by police were matters in which he had a privacy interest.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.
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