University of Otago (Wellington) Aspire Aotearoa Research Centre co-director and leading tobacco researcher Prof Janet Hoek and Radio New Zealand (RNZ) sought information under the Official Information Act (OIA), to see what justification the ministry used to repeal the Smokefree Environments and Regulated Products (Smoked Tobacco) Amendment Act 2022.
"What we were looking for was any interactions between the minister and tobacco companies and various other groups that we were concerned were having an influence on the decision to repeal the smokefree legislation," Prof Hoek said.
Ms Costello led government moves to scrap the laws which aimed to slash tobacco retailers from 6000 to 600, remove 95% of the nicotine from cigarettes, and create a smokefree generation by banning sales to those born after 2009.
She refused to release any documents, citing a clause in the Act protecting confidential advice tendered by ministers and officials.
Prof Hoek and RNZ then referred their OIA requests to chief ombudsman Judge Peter Boshier, who found Ms Costello’s actions were "unreasonable and contrary to law".
He recommended she release the information and formally apologise to Prof Hoek and RNZ.
Prof Hoek said she and her colleagues had worked tirelessly on research to inform policy that would reduce the appeal, availability and accessibility of tobacco products.
"We were very disappointed when the minister withheld the information and very pleased that the ombudsman came out and supported our concerns."
She had now received a series of emails and some documents, but it had been flooded with "a whole lot of information that has been proactively released by the ministry".
"Some of it has been heavily redacted, so I’m just working through that at the moment."
"It’s difficult for us to do our work as researchers — holding the government to account and testing the decisions that they make by looking at the evidence that they use to make those decisions — if they’re going to withhold information."
She believed Ms Costello had "a lot to learn" and needed to be "more forthcoming and more transparent".
"There’s a very deep irony that when you look at the coalition government agreement, they all state that they are going to be making evidence-based decisions.
"Now, if she is deciding to withhold the evidence that she is drawing on to make these decisions, then it is impossible to hold her to account.
"I think that in the repeal of the smokefree legislation, we know that that was inconsistent with the research evidence, we know that they didn’t have a public mandate to act, so we’re extremely interested to find out where they did get this evidence from.
"It’s crucial that we can examine the documents that have gone through her office and find out whose advice she is following, because it is very clear that she is not following the Ministry of Health’s advice."
Otago health sciences pro-vice-chancellor Assoc Prof Megan Gibbons said for more than 20 years, Aspire researchers had steadfastly gathered the best possible evidence about tobacco products, and then used their findings to inform understanding of a major public health problem.
"We urge the government to uphold its commitment to transparency, as our academic staff cannot fulfil their responsibilities without access to essential information.
"It is crucial for the continued integrity of our democratic processes and the advancement of public welfare that such information is readily accessible."
Judge Boshier’s ruling will inform handling of future OIA requests because he has insisted it be published as a "case note" under the authority of the Ombudsmen Rules 1989.
