Kelsey v The Minister of Trade [2015] NZHC 2950

Kelsey v The Minister of Trade [2015] NZHC 2950 [25 November 2015]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2015-485-000583[2015] NZHC 2950UNDER The Judicature Amendment Act 1972 andPart 30 of the High Court RulesIN THE MATTER OF An application for judicial reviewBETWEEN JANE KELSEYFirst ApplicantCONSUMER NEW ZEALAND INCSecond ApplicantNGĀTI KAHUNGUNU IWI INCThird ApplicantOXFAM NEW ZEALANDFourth ApplicantGREENPEACE OF NEW ZEALANDINCFifth ApplicantASSOCIATION OF SALARIEDMEDICAL SPECIALISTSSixth ApplicantNEW ZEALAND NURSESASSOCIATION INCSeventh ApplicantNEW ZEALAND TERTIARYEDUCATION UNION TE HAUTŪKAHURANGI O AOTEAROAAND THE MINISTER OF TRADERespondentJudgment: 25 November 2015JUDGMENT (ON THE PAPERS) OF COLLINS JIntroduction[1] Professor Kelsey has sought additional orders which are described by hercounsel as being "supplementary/consequential" to my judgment of 13 October 2015(the judgment).[2] In the judgment I granted applications brought by Professor Kelsey and seven other applicants for judicial review of a decision of the Minister of Trade (the Minister).1 In the judgment I quashed a decision of the Minister made in response to a request under the Official Information Act 1982 (the Act) from Professor Kelsey dated 25 January 2015 for official information contained in eight categories of documents relating to the Trans-Pacific Partnership Agreement (TPP Agreement).2In the judgment I directed the Minister to reconsider his decision in relation to six of the categories of documents requested by Professor Kelsey. I made that order because I was satisfied the Minister had acted unlawfully when he failed to assess all the information requested by Professor Kelsey against the criteria in the Act forwithholding official information. Instead the Minister had adopted a "blanket approach" to Professor Kelsey's request.1 Kelsey v Minister of Trade [2015] NZHC 2497.2 The eight categories of documents requested were:Category AThe original negotiating mandate for the financial services and investment chapters of the Trans- Pacific Strategic Economic Partnership and the inclusion of the United States in those negotiations, and the subsequent negotiating mandates and/or amendments to those mandates in relation to the Trans-Pacific Partnership Agreement negotiations.Category BA list of the titles, dates and topic of all documents tabled by New Zealand in the negotiations.Category CAll papers tabled by New Zealand during the negotiations up to 31 December 2013.Category DAll papers tabled by New Zealand during the negotiations since 31 December 2013.Category EAll proposals for text tabled by New Zealand during the negotiations up to 31 December 2013.Category FAll proposals for text tabled by New Zealand during the negotiations since 31 December 2013.Category GBriefing notes and position papers provided by the Ministry to the Minister, to the Cabinet, to other government agencies or to Opposition parties or spokespersons on general or specific matters.Category HAny cost-benefit study, impact assessment or similar analysis or evaluation of the proposed agreement as a whole, of specific provisions, or impacts on particular sectors or policies that have been conducted by or for the New Zealand government.[3] The judgment did not cover two categories of documents sought by Professor Kelsey, namely the information in Categories B and H of Professor Kelsey's request. The information in those two categories was not coveredby the judgment because on 6 March 2015 Professor Kelsey lodged a complaint withthe Chief Ombudsman concerning the Minister's response to her request. TheChief Ombudsman upheld the Minister's decision in relation to the information in Categories A, C, D, E, F and G of Professor Kelsey's request. At the time the judgment was delivered the Chief Ombudsman had not reached a final viewconcerning the information in Categories B and H of Professor Kelsey's request. Iunderstand the Chief Ombudsman has still to deliver her final decision in relation to the information in those two categories of documents.[4] I shall not repeat the contents of the judgment. This decision should be read in conjunction with the judgment.[5] In her application for "supplementary/consequential" orders, ProfessorKelsey asks that: the Minister be directed to assess all the documents in category A, and themore refined documents within categories B to H against the criterion in s 6(a), (b)(i) and 9(2)(d) [of the Act] and make available this information by Monday 14 December [2015].[6] This judgment explains why I am not, at this juncture, prepared to make the"supplementary/consequential" orders sought by Professor Kelsey.[7] Professor Kelsey initially sought a hearing of her application. I set the application down for hearing in open court at 3.00 pm on 24 November 2015. On the morning of 24 November I was informed the parties were content for me to dealwith Professor Kelsey's application on the papers.Developments since the judgment was issued[8] On 9 November 2015, Professor Kelsey received a letter from the Minister in response to the judgment. In his letter the Minister said he:(1) was extending the time limit for responding to the information sought in relation to the documents in Category A until 5 February 2016. That extension was made under s 15A(1)(a) of the Act.(2) was inviting Professor Kelsey to refine the scope of her request in relation to the documents covered by Categories B to H of her request.[9] On 12 November 2015, Professor Kelsey proposed "interim refinements" toher request in relation to the documents covered by Categories B to H of her originalrequest "while maintaining [her] request for the complete information over time".[10] On 13 November 2015, Professor Kelsey filed her application for"supplementary/consequential" orders. In that application counsel forProfessor Kelsey submitted the Minister's response was not consistent with what I contemplated when I directed the Minister to reconsider his decision and "adhere tohis obligations under the Act and apply the law in the way [I] explained" in thejudgment.3[11] Counsel for Professor Kelsey submitted the Minister's response in relation tothe documents covered by Category A ignored the fact Professor Kelsey's requestwas made on 25 January 2015 and that his response to my judgment involved furtherunnecessary delays in complying with Professor Kelsey's original request.Ministry of Foreign Affairs and Trade's response[12] I have considered an affidavit from Mr Harvey, a divisional manager within the Ministry of Foreign Affairs and Trade (MFAT) with responsibility for overseeinghis division's responses to requests for information under the Act.[13] In his affidavit Mr Harvey has explained the resourcing and logistical challenges faced by MFAT in complying with Professor Kelsey's request.Mr Harvey has also explained the steps which he and other officials at MFAT have3 Kelsey v Minister of Trade, above n 1, at [155].put in place to ensure a full and proper response is delivered to Professor Kelsey'smodified application.AnalysisCategory A documents[14] In his affidavit Mr Harvey has explained the following four key points.[15] First, the Minister will respond to Professor Kelsey's request for theinformation covered by the Category A documents by 5 February 2016. That datereflects Mr Harvey's best assessment as to when he realistically expects officials within MFAT will complete the review of the documents falling within the scope of the Category A documents.[16] Second, Mr Harvey says that there are approximately 30 documents that fall within the scope of the Category A documents and that those documents comprise approximately 750 pages. Mr Harvey has explained that some of the documents are complicated and require careful assessment by officials, some of whom are engaged in meetings out of New Zealand during the course of November and December.[17] Third, MFAT has designated an official who has recently returned from an overseas posting to complete the review of the documents in question.[18] Fourth, the Minister will be out of New Zealand during much of December and January.[19] I can appreciate Professor Kelsey's frustration. She made her application on 25 January 2015. Mr Harvey's affidavit acknowledges MFAT has only recently commenced the steps required to properly assess and evaluate what information covered by the Category A documents could be lawfully withheld from Professor Kelsey.[20] I do not, however, see how I can make any orders that could realistically speed up the process of ensuring the Minister properly responds toProfessor Kelsey's request in relation to Category A documents before 5 February2016. I have to accept Mr Harvey's evidence, which has not been challenged through cross-examination, that it is not possible for the Minister to properly respondto Professor Kelsey's request concerning the information covered by the Category Adocuments before 5 February 2016.Categories B to H documents[21] Professor Kelsey's application for "supplementary/consequential" orders wasmade the day after she communicated the refinements she was willing to make, albeit on an interim basis, to the information covered by Categories B to H of her original request.[22] No doubt the fact Professor Kelsey filed her application the day after she modified her request reflects her intense frustration at the delays that have occurred in properly responding to her original request.[23] Counsel for the Minister has, however, explained that Professor Kelsey'srefinements to her request means that responding to that request will no longer require substantial collation or research. Counsel anticipates the Minister will be able to confirm his position in this regard once he returns to New Zealand during the course of this week.[24] In these circumstances, I do not believe it is appropriate to make any"supplementary/consequential" orders until the Minister has considered and responded to Professor Kelsey's modified request for the information governed by the documents in Categories B to H of her original request.[25] In reaching this decision, the Minister and his advisors will appreciate that there should be no further delays in responding fully and properly to ProfessorKelsey's request.Conclusion[26] The application for "supplementary/consequential" orders is declined.[27] This decision does not preclude Professor Kelsey returning to the Court for further orders and directions in accordance with the judgment.[28] I make no order as to costs.__________________________D B Collins JSolicitors:Oakley Moran, Wellington for ApplicantsCrown Law Office, Wellington for Respondent