Congratulations Jane Kelsey

[1] The applicants have sought judicial review of a decision of the Minister of Trade (the Minister) in which he refused to release to Professor Kelsey official information contained in eight categories of documents she requested under the Official Information Act 1982 (the Act). The information requested by Professor Kelsey concerns material associated with negotiations that have led to a multi-lateral free trade agreement called the Trans-Pacific Partnership Agreement (TPP Agreement).

[2] When the Minister refused Professor Kelsey’s request, neither he nor his officials assessed each piece of information requested against the criteria in the Act for withholding official information. Instead, the Minister adopted a “blanket approach” to the request based upon his knowledge of the categories of documents requested by Professor Kelsey. I have concluded this approach did not comply with the Act.

[3] The applicants have applied for a series of declarations concerning the lawfulness of the Minister’s approach and the meaning of specific provisions of the Act.

[4] Rather than issue specific declarations I have quashed the Minister’s decision in relation to six of the categories of documents requested by Professor Kelsey. I explain in this judgment the aspects of Professor Kelsey’s request which have to be reconsidered. When the Minister reconsiders his decision he will be required to do so in a way that is consistent with his obligations under the Act, which I explain in this judgment.

I have not had time to read or analyse the decision.  No doubt better legal brains than mine will do so.  I suspect the Crown will appeal.

It has been noticeable how recently from various Government friendly quarters Jane Kelsey has been publicly attacked and maligned, in my view totally without justification.  But Jane Kelsey ought to be thanked for her sterling work and her perseverance.  Democracies need more citizens like her.