Contents

Appendix 3
Submissions summary and comment

What information should be protected?

4The first key policy question we asked in the Issues Paper was how we should define information that is prejudicial to national security. More specifically, we asked submitters what types of security interests should be sufficient to displace the normal assumption that relevant information is disclosed to the affected parties and how we should define national security for the purposes of the review.

5Submitters generally favoured defining national security information expressly in legislation. The New Zealand Law Society (NZLS) considered a clear, precise and narrowly focused definition a critical first step in the development of any new regime and that the definition needed to be capable of objective interpretation and application so should avoid the inclusion of subjective elements. The Privacy Commissioner favoured a definition that articulated the public policy reasons for treating the information as particularly sensitive and considered that it should be possible to identify with some specificity the particular interests that require protection. The Commissioner said that the advantage of this type of approach was that the various interests deserving protection could be organised in a hierarchy so that there is greater clarity about the circumstances in which national security “trumps” other interests and the circumstances in which it is one factor to be weighed in reaching an appropriate balancing of interests.

6The NZLS argued that a definition needed to be comprised of three important elements:

(a) A requirement that the information must be of a certain kind, for example, that it would disclose specific operational matters such as the source of the information or the operational methods by which it was gathered.

(b) A requirement that disclosure of the specified kind of information would pose a risk to certain specified interests. The NZLS agreed that the interests must truly be of a significant character before they would justify limiting fundamental legal rights. They said a distinction should be drawn between “national security” and broader notions of New Zealand’s “international relations” or “economic interests”, which do not in themselves justify the serious incursion on natural justice rights that a non-disclosure regime would entail.
(c) A weighting of the level of risk that disclosure would pose to the specified interests. The NZLS considered that the current requirement of simple “prejudice” should be lifted to a requirement of “significant” or “serious” prejudice.

7In contrast to these submissions, the then Chief Ombudsman, Dame Beverley Wakem, suggested using the definition of national security in section 6(a) and (b) of the Official Information Act 1982 (OIA):

6 Good reason for withholding official information exists, for the purpose of section 5, if the making available of that information would be likely—
(a) to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or
(b) to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by—
(i) the Government of any other country or any agency of such a Government; or
(ii) any international organisation.

8The Chief Ombudsman, Dame Beverley Wakem, questioned whether any tightening up of that definition would be consistent with the OIA and noted that Parliament has made the likely prejudice to these interests determinative. Under the OIA, there is no ability to consider whether the need to withhold is outweighed by other considerations favouring disclosure in the public interest. The Chief Ombudsman favoured an approach that uses this broad definition of national security information and in which the courts then determine whether particular modes of disclosure (such as the use of suppression orders) or particular types of hearings (such as closed hearings) would appropriately mitigate risks identified in the established definition of national security interests rather than seeking to narrow the definition.

9The joint submission from the New Zealand Security Intelligence Service (NZSIS) and the Government Communications Security Bureau (GCSB) said that any definition of national security information should be cognisant of the fact that there can be a variety of reasons why information or its release may be sensitive. The reason information may be sensitive may relate to the source or technique used to obtain the information rather that the content of the information.

Comments on submissions

10After considering the submissions and also the views expressed by officials and others at consultation meetings, we have taken a reasonably broad approach to defining national security information. We are conscious of the important point made by the security and intelligence agencies and consider that there are advantages in not limiting the kinds of information that may come within the definition. The definition we have settled on identifies the specific interests (such as prejudice to the security or defence of New Zealand or international relations) that could be put at risk by disclosure but does not identify the type of information that might do this. We favour ensuring that the specified interests align with section 6(a) and (b) of the OIA. These interests are:

  • the security or defence of New Zealand; or
  • the international relations of the Government of New Zealand; or
  • the entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government or any international organisation.

11The Law Society advocated specifying the level of risk or prejudice that disclosure would pose to one or more of the specified interests as “significant” or “serious”. However, while we consider the magnitude and nature of the potential prejudice very relevant to how the information is to be managed in proceedings, we prefer a broad definition and a staged approach, where coming within the definition is a first step to identify the information that will need to be carefully managed through court proceedings.

12As set out in this Report, the question of whether information is national security information does not determine whether it is ultimately withheld or released. Rather, it is a first step, and consideration must then be given to the seriousness and nature of the risk that disclosure of the information could pose.