Chief ombudsman Peter Boshier began an investigation after he received a complaint from University of Otago Aspire Aotearoa Research Centre co-director and leading tobacco researcher Prof Janet Hoek and Radio New Zealand (RNZ), about the Associate Minister’s refusal to release information on "who" wrote or compiled notes she used to formulate the government’s tobacco policy.
In July this year, Prof Hoek and RNZ sought the information via an Official Information Act (OIA) request 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 the chief ombudsman, 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.
After Mr Boshier began investigating, Ms Costello acknowledged the responses on the website did not in fact address the request.
She clarified that the request was refused under 18(g) of the OIA, because she did not know who wrote or collated the notes.
"The Associate Minister said she only received a hard copy of the notes that were placed on her desk, and that her staff told her they didn’t know who authored the notes," the report said.
"They were not written by ministerial staff, none of them had placed the notes on her desk, nor did they know who prepared them," it said.
Ms Costello added that she believed the notes were created by copying and pasting from a variety of sources over a significant period of time before the coalition government was formed.
She said the likely source was a political party staffer or volunteer.
In his final opinion, Mr Boshier believed Ms Costello had made reasonable efforts to try to determine who wrote or compiled the notes, and it was open to her to refuse the request on the basis she did not hold information about "who" authored the notes.
However, he was concerned the associate minister was unable to produce any records about the provenance of the notes.
Mr Boshier has taken the rare step of notifying the chief archivist about the record-keeping issues in this case.
"The chief archivist has a range of powers to examine record-keeping matters under the Public Records Act."
Mr Boshier also said Ms Costello’s failure to make reference to any OIA withholding ground when she refused the request was contrary to law.
He recommended she review the way she handled the request, and take steps to address the identified deficiencies.
