Naturally Resourceful

14 Sep 2009

Ombudsman's Decision Requires Council to Release Information on Unverified Contaminated Sites

A recent decision by the Ombudsman has required the Hawke's Bay Regional Council (Council) to release details of 3,099 "unverified HAIL sites" in response to a request under the Local Government Official Information and Meetings Act 1987 (LGOIMA).

This FYI provides a brief summary of the key features of the decision and its implications.

Background

Regional Councils are required under section 30(1)(ca) of the Resource Management Act 1991 to identify and monitor contaminated land.

As part of this function, in 1995 the Council engaged consultants to compile a list of "HAIL sites" (sites on the Hazardous Activities and Industries List, ie, sites on which hazardous activities and industries known to have the potential to contaminate land had been carried out). Being identified as a HAIL site does not necessarily mean a site is contaminated. The Council has updated the classification of each site in its database as contamination on that site was confirmed or ruled out. By September 2008, there were 3,099 remaining "unverified HAIL sites" in the region.

An employee of the Dominion Post, Marty Sharpe, made a LGOIMA request seeking details on all of the 3,099 unverified HAIL sites. The Council declined the request and Mr Sharpe complained to the Ombudsman.

The Ombudsman's Decision

The Ombudsman considered the request and found, for the three reasons set out below, that there were no valid grounds for withholding the information:

First, the release of the information would not "unreasonably prejudice the commercial position of the person who supplied or is the subject of the information" under section 7(2)(b)(ii) of the LGOIMA (by potentially reducing property values). In making this finding the Ombudsman noted that case law had consistently held that in order for an activity to have a "commercial purpose", there had to be an intention to "make a profit". Although people might have a general motivation to protect the value of their properties, the Ombudsman found that this was not sufficient to amount to a "commercial position" under section 7(2)(b)(ii), unless a person was "in the business of dealing in land". Further, the Ombudsman considered that even those people in the business of dealing in land would not be "unreasonably prejudiced" by the release of the information, because the information identifying the sites as unverified HAIL sites simply noted the sites' previous land uses and the potential for contamination. This information was generally available from other sources.

Second, the release of the information would not "prejudice the supply of similar information, or information from the same source" under section 7(2)(c)(i) as the information identifying the sites as unverified HAIL sites had been mainly obtained through a telephone book survey of the activities undertaken on the sites (rather than by information supplied by owners of the properties).

Third, although in the case of properties owned by "natural persons" there was an argument that the information should be withheld to protect the privacy of those natural persons under section 7(2)(a), this argument was outweighed by the public interest in making information available so that the public were in a position to assess the level of risk to the environment or their person at particular sites.

Interestingly, the Ombudsman had consulted with the Privacy Commissioner in preparing this determination, and the Privacy Commissioner had expressed a view that (1) the status of the land was personal information about the landowner; and (2) the public interest in release could be adequately served by individuals making specific site requests, rather than by the release of the whole list. The Ombudsman did not agree that this approach would satisfy the public interest in release of the information, largely because only two of the territorial authorities in the region included the information on PIMs and LIMs and so, to access this information, members of the public would also have to be aware that they should approach the regional council.

The decision also noted that information about the unverified HAIL sites should be accompanied by a statement explaining:

• the definition of "unverified HAIL";
• the other categories used to describe information about land contamination held by the Council;
• a copy of the Hazardous Activities and Industries List; and
• information about the Council's verification and investigation process.

Implications of the Decision

The decision confirms the importance of the principle of availability of information under section 5 of the LGOIMA. Namely, that all requests under the LGOIMA are to be decided on the basis that official information should be made available "unless there is a good reason for withholding it".

The decision takes a narrow view of what is required to cause "prejudice to the commercial position of the person who is the subject of the information" under section 7(2)(b)(ii) and indicates that simply decreasing the value of property may not be sufficient. The decision further finds that even where the disclosure of information might affect the privacy of natural persons under section 7(2)(a), this effect on individual privacy may be outweighed by the public interest in disclosure of the information.

The decision indicates that councils have an obligation to disclose even "unverified" official information and that when unverified information is disclosed it should be accompanied by the necessary qualifying statements to put the information in context.

Accordingly, if councils hold "lists" of information of any sort (whether verified or not) they should be aware that they may be under an obligation to disclose that information if it is the subject of a LGOIMA request.

It is worth remembering that, if required to respond to large-scale LGOIMA requests (as in this case), section 14 of the LGOIMA enables councils to extend the time limit for responding to a request for a "reasonable period" for any LGOIMA request requiring "substantial collation or research". A council also has the right under section 13 of the LGOIMA to charge for the reasonable costs (labour and materials) of responding to the request.

Disclosing information about unverified HAIL sites may be problematic for councils because, even if it is accompanied by disclaimers, it has the potential to impact negatively on property values or potential property sales. Inevitably, in some of these cases where a reduction in property values occurs, it will later be confirmed that the site was not actually contaminated, or only has low levels of contamination that can be easily remediated.

If information about unverified HAIL sites is disclosed in response to a LGOIMA request, provided the information is disclosed in "good faith" (ie, honestly and with no ulterior motive), the council will be protected under section 41 of the LGOIMA from any civil or criminal liability arising from making the information available, or the consequences that flow from making it available.

Section 44A(2)(a) requires territorial authorities (city and district councils) to include as part of their Land and Information Memoranda (LIMs) information identifying the "likely presence of hazardous contaminants". Not all unverified HAIL sites will ultimately be found to be contaminated. Whether there is a duty under section 44A(2)(a) to include information about unverified HAIL sites in a LIM will depend on an assessment of the likelihood of contaminants being present.

Territorial authorities should be aware that the protection from liability under section 41 that applies to official information released under LGOIMA does not apply to LIMs. This means that if information about unverified HAIL sites included in LIMs is incorrect, territorial authorities could be found liable (for example in negligence or breach of statutory duty). Furthermore, any warnings or disclaimers about the accuracy of the information in a LIM will not protect a territorial authority from liability: CIV-2005-406-00091: Altimarloch Joint Venture Limited v David Moorhouse and Ors.

Accordingly, councils need to ensure that the information held about unverified HAIL sites is as accurate as possible and that databases are updated when a site is investigated or remediated. When councils release information about unverified HAIL sites it should be accompanied by the qualifications outlined in the Ombudsman's decision. In our view, it would be prudent if information released under a LGOIMA request was also accompanied by a warning that identification as an unverified HAIL site does not necessarily mean that a site is contaminated or that, if it is contaminated, there is any health or other risk or need to remediate.

If territorial authorities have information identifying sites as unverified HAIL sites, that information may be required under section 44A(2)(a) to be included in a LIM. Territorial authorities should be aware that any disclaimers regarding the accuracy of the information in a LIM are likely to be ineffective in protecting them from legal liability.

Authors

Bill Loutit

Partner - Public Sector

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Padraig McNamara

Partner - Public Sector

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Jonathan Salter

Partner - Public Sector

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Judith Cheyne

Senior Associate - Public Sector

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Ann Maddox

Senior Associate - Public Sector

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Vivienne Wilson

Senior Associate - Public Sector

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