Access to justice

The Official Information Act and Crown Solicitors

Freedom of Information laws, such as New Zealand’s Official Information Act, allow the public, journalists, and politicians to seek information held by the Government in order to understand the decisions it takes. It allows voters access to information about government action so they can hold the Government to account for what it has done, and to have the information they need to be informed citizens.

New Zealand has a pretty good Official Information Act. There are sometimes problems in practice, and some bits of it are written for an earlier era, but as a law it avoids many of the pitfalls that freedom of information laws have in other countries (there isn’t an exclusion for documents seen by Cabinet, for a start!). If the executive government holds information, and there aren’t good reasons to withhold it or part of it, you’ll probably be able to get it if you ask.

Except, occasionally, if those exercising executive power are for historical reasons, somehow not really members of the executive. And there is one category of public official whose exclusion from the Official Information Act is so glaring, I finally decided to try to get them added.

These are the Crown Solicitors, the individual lawyers who are responsible for the prosecution of serious crime in New Zealand. They are appointed by the Governor-General and work to an extent under the guidance of Crown Law, but are very much not part of Crown Law. Instead, they are partners in private law firms, some of which have major corporate and private law practices, who head up teams of prosecutors, who are employed by those private law firms, to prosecute the vast majority of jury trials and a lot of the more serious judge-alone trials that make up the work of the criminal courts.

If a decision needs to be made about whether to accept a guilty plea to lesser charge in a serious prosecution, or to withdraw a charge of intentional damage, that decision will be made by a Crown Solicitor, or one of the prosecutors working for them.

And despite having been entrusted by the executive government with the exercise of these substantial government powers, that exercise is not subject to scrutiny under the Official Information Act.

(Image of New Zealand House of Representatives by Michal Klajban, CC BY-SA 4.0.)

This isn’t true of all prosecutions. The serious fraud office conducts prosecutions – including jury trials – of serious fraud. You can request information about these prosecutions under the Official Information Act. And when Police prosecute more minor offending, and Police prosecutors are making the same sorts of decisions around plea bargaining that Crown Solicitors make, Police are covered by the Official Information Act, and their decisions can be subjected to public and media scrutiny.

And the same goes for importation prosecutions by Customs, and fisheries prosecutions undertaken by the Ministry of Primary Industries, and District, City and Regional Council prosecutions, and even the exercise of prosecution powers by local Fish and Game Councils when people fish or hunt without a licence.

It will often be difficult to get information under the OIA when a case is still before the Courts and the release of certain information might threaten fair trial rights, but once cases are over, even if there are privacy interests, public interest in oversight of prosecution can force those exercising these great and small government powers to hand over information. Sometimes bits will be withheld, and some names redacted. Sometimes other exclusions under the OIA will apply, and you might not get much. But you can ask, and the rules of the OIA, and the Ombudsman’s guidelines will guide decisions to release and withhold.

But, if that charge wasn’t fishing without a licence but was instead murder, the Official Information Act will not help you understand the decisions made by those prosecuting on behalf of the State, because the law says that there is no public interest in allowing OIA oversight of murder prosecutions.

This seems utterly ridiculous. There will often be a good reason to withhold information in response to an OIA request, especially in the context of a prosecution. It will justifiably be difficult to get much information from Police or a prosecutor while a crime is still being investigated or before the matter reaches trial (especially a jury trial), but the Official Information Act already accounts for that, and all of those other prosecuting agencies are able to refuse requests or redact information when it is requested at a stage in the process that runs those risks.

There is no reason to expect that Crown Solicitors, if brought within the Official Information Act, would be unable to apply the law at least as well as Police prosecutors, or departmental prosecutors or the Serious Fraud Office.

And given the power Crown Solicitors possess, conducting the most serious prosecutions on behalf of the Government, there is no good reason not to subject them to the same scrutiny as Fish and Game wardens.

This oversight has been obvious for years. There are almost certainly other agencies whose private exercise of public powers could and should be brought within the ambit of the Official Information Act, but this one is so obvious and so egregious that I decided I shouldn’t wait longer before trying to get Parliament to look at changing the law.

I am one person. And I don’t work in Government. But the right to petition Parliament is a long-standing and pretty simple way of a group of people making their voice heard on an issue of public importance.

I make quite a few submissions on Bills before Parliament. And when you’re dealing with government bills, numbers mostly do not matter. A single good submission pointing out a flaw can get a Bill amended, and 10,000 or more submissions noting their opposition to a Bill will not stop it passing if the government really wants it.

But something like this seems different. The Government doesn’t have a policy on this. There are almost certainly MPs and probably government ministers who have no idea that Crown Solicitors aren’t covered by the Official Information Act. And knowing that a lot of people think they should be included might give them just the push to announce their support for the idea. So, for the first time ever, I have decided to petition Parliament.

And you can help by signing the petition on the Parliament website, asking that the House of Representatives Recommend to the Government that it bring Crown Solicitors under the Official Information Act.

(Fun fact about petitions actually hosted on the Parliament website, and unlike petitions hosted on political party websites or places like Action Station: I don’t get any information about you, or your email address, etc. that stay within Parliament, and I can’t use the information you provide to contact you about this or anything else.)

And if – after signing the petition – you can share this, or the petition with people you know, even better.