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It's important for all of us that the Police, and other agencies that maintain the law, can investigate and prevent crime and other offences.
Sometimes, there's a real risk that releasing information to a requester could get in the way of investigating and detecting offences. Releasing information at an inappropriate stage can also impede a fair trial.
Organisations should release as much information as they can without prejudicing their ability to maintain the law. For example, releasing a summary of information can be a good way to give a requester as much information as possible, while not revealing crime investigation techniques.
| 53. Other reasons for refusing access to personal information An agency may refuse access to any personal information requested if— |
| (c) the disclosure of the information would be likely to prejudice the maintenance of the law by any public sector agency, including— |
| (i) the prevention, investigation, and detection of offences; and (ii) the right to a fair trial |
Who can withhold information under this section?
Usually this refusal ground is used by the agencies that have criminal law enforcement functions, such as:
These agencies sometimes rely on receiving information from others. If another person or organisation is acting as a channel to provide information to a law enforcement agency, they may also be able to rely on this refusal ground. This ensures that channels of information are kept open to help maintain the law.
For example, if someone tells a doctor that a person has been abusing a child and the doctor sends the information to Oranga Tamariki to investigate, the person who is suspected of abuse might ask Oranga Tamariki who made the allegation. Oranga Tamriki can refuse to tell them under this section and the doctor can equally refuse if asked, since they were acting as a channel of information to a law enforcement agency. See Case Note 12846.
See also:
Can I find out who gave information against me?
Not usually. Agencies can almost always withhold information that could identify people who make complaints or provide information ('informants').
This is because agencies with law enforcement functions rely heavily on receiving information from members of the public. If these members of the public thought that their identity would be released to the person they were providing information about then they would be less likely to provide it. So the agencies would not get information they need, and would not be able to investigate possible offences.
There may be rare circumstances where releasing someone's identity will not deter others from providing information in the future.
If people have to give information about others as part of their job - for instance in certain parts of the public service - then they usually cannot remain anonymous unless there's a risk to their safety.
What if an informant provided false information in order to get me into trouble?
It is still likely that the agency will be able to withhold the identity of the informant. Revealing the identity of a malicious informant may still create a substantial risk that genuine or well-meaning informants may be put off supplying information in other cases.
The agency's investigation processes should be robust enough to deal with malicious information. For instance, agencies need to take reasonable steps to check that information is accurate before they use it (principle 8). And if the agency is sure that the informant acted maliciously, it may well take steps to note this on its records to reduce the chance that the person can cause trouble in the future (principle 7). Also, it may take further steps - deliberately supplying false information can sometimes be a criminal offence.
See Case Note 92046 (Traveller seeks access to name of malicious informant) and Nicholl v Department of Work and Income.
I am being investigated for an offence. Can I get a copy of my file from the agency investigating me?
If an agency is investigating an offence, releasing information can sometimes get in the way of the investigation. For instance, witnesses may be influenced to change their story, investigation techniques could be revealed, or evidence could be destroyed. So sometimes the agency can refuse to release some information about the investigation until that investigation has finished.
Of course, it can be very important that the person being investigated has a right to have their say. At the appropriate stage, therefore, the person will need to know enough for them to be able to state their own views. However, this does not always entail having access to all the information from the investigation. A summary of the allegations and supporting information may be sufficient.
Once the investigation has finished, the person who was investigated can ask again to see information from the file. At that stage, they should be able to see most of the information about them. Releasing the information at that stage is far less likely to prejudice the agency's ability to maintain the law. The agency can only withhold information that might prejudice future investigations (such as investigative methods or informant details).
Are there types of information that an agency can always withhold?
There are some types of information that agencies that maintain the law can usually withhold. These include informant identities and investigative methods.
However, even with these types of information, the agency needs to look at the individual circumstances to see if there is in fact a risk of prejudice to the maintenance of the law. Sometimes there may not be a risk. See DHRP v Police [2007].
The agency should in any case aim to give the person as much information as possible - for example it might provide documents with some deletions, or might give the person a summary.
For instance, in Case Note 99971, an agency gave a man a summary of the allegations against him. Providing a summary still allowed the agency in this case to protect the identity of its informants while allowing the man to see what he was accused of.
