The country's transparency watchdog has found Stuart Nash was wrong to refuse a media request for emails by saying they did not relate to his role as a minister but as an MP.
The emails were since made public and revealed Nash had discussed Cabinet matters with two donors, a revelation which prompted his sacking from Cabinet and a Cabinet Office review into his behaviour.
That review was released last week.
The journalist who made the original request reopened an Ombudsman's Office complaint on the issue, and Chief Ombudsman Peter Boshier was tasked with investigating Nash's decision-making around it.
In August 2021, Nash refused the journalist's request for information about his communications with 19 individuals who were political donors, Boshier said.
Nash identified 14 emails and attachments relevant to the journalist's request but refused the information because he considered it out of scope.
"Mr Nash withheld the information under the OIA on the grounds he was not communicating with the donors as a minister, but as an MP."
Information — including communications — held by a minister is subject to the Official Information Act, but information held by an MP is not.
Boshier found Nash was justified to withhold three emails because they were held solely in his capacity as the local MP for Napier.
"This case highlights the potential for the roles of an MP and a minister to overlap and for information to be held in both capacities," Boshier said.
"The OIA is an important constitutional safeguard. It is based on the principle of making information available.
"The OIA should apply where there is a ministerial overlap of any kind."
Boshier found 11 of the 14 emails were relevant to Nash's role as a minister and should have been treated as official information, while there were, in his view, grounds under the OIA to withhold some or all of the remaining three emails "because confidential Cabinet decisions were discussed".
"There is a strong public interest in release to promote accountability and transparency where a minister appears to have disregarded the confidentiality of Cabinet discussions.
"However, I consider the public interest in releasing them would not have outweighed the need to withhold the emails to protect collective and individual ministerial responsibility."
Boshier said he would have recommended Nash provide a broad summary of the content of the emails to the journalist.
"A summary would have informed the public of the apparent breach of the minister's responsibilities without undermining the confidentiality of Cabinet discussions by the further release of the improperly disclosed material."
Boshier would have also recommended referring the matter to the Cabinet Secretary, he said — though subsequent events had rendered it unnecessary.
"Most of the email content was already in the public arena and the Cabinet Secretary did her own investigation."
The statement said Boshier also looked into the role of the office of then Prime Minister Jacinda Ardern, which was consulted by staff from Nash's office about the OIA request.
Boshier found the prime minister's office did not support Nash's position on refusal.
"Decision-making on the request rested at all times with Mr Nash, who it appeared did not agree with the advice provided by the prime minister's senior advisor, and proceeded to make the decision now at issue."
Boshier said the journalist had confirmed he was seeking un-redacted copies of the remaining eight emails, as well as the attachments to the emails that had not been released.
"I intend to seek comments from parties potentially involved and provide a further opinion at a later date."
Last week, following the Cabinet Office's review into his communications with donors, Nash said he hoped it would "draw a line" under the issues that saw him removed from Cabinet, plummet to the bottom of Labour's parliamentary list. He has announced his retirement from politics at the 2023 general election.
SHARE ME