The Ombudsmen, Office of the Ombudsman PO Box 10 152 Wellington 6143 Attn: K Stein, Ref. 345479
Dear Ombudsman, Re: LGOIAM ACT- KCDC POSTAL ADDRESSES OF NON-RESIDENT RATEPAYERS AFFECTED BY COASTAL EROSION Thank you for your letter of 21 December. I wish to make further submissions concerning your interim finding that the disclosure of addresses would be contrary to s28A (6) (b) of the LGRA. At pages4/5 of your letter you indicate that the request for addresses is not related. Further you hold that they are being sought for bulk collection. Related I would submit that the requests for addresses are clearly related. The Shorter Oxford defines related as (inter alia) “connected”. The addresses sought are limited to coastal properties where the owners’ address for rate demands is other than the physical address of the properties concerned. The addresses are also related in the sense that they are all affected by the hazard lines in the Proposed District Plan, with the concomitant effect on maintenance, building restrictions etc. Bulk Collection - purpose You hold that the purpose of the request for names is for the purpose of “bulk collection”. At page 5 paragraph 4 you state with regard to “bulk collection'- “It applies to the means of collection whatever the purposes of such collection”. It is submitted this is a misreading of the section. The section states that a request can be made “for purposes other than bulk collection” We are not seeking the information for the PURPOSES of bulk collection. You earlier correctly identified our purpose. Purpose is a critical factor in deciding whether a request can or cannot be refused. The reference to means has no statutory basis. Personal details supplied for specific statutory purposes You state that where personal details are supplied for specific statutory purposes and the collection is unrelated to those purposes, and that the persons concerned would reasonably expect those details not to be used for extraneous purposes the
information should not be made available. Could you please indicate the scope of statutory purposes you considered so I can reply to this point? Without knowing what you considered I would indicate that it is my submission that the addresses would be necessary not only for rates notices but all communications from the council relating to the property. It is precisely for this purpose that CRU is seeking the addresses - to ensure that property owners have been properly advised. Furthermore, the information CRU wants to send directly relates to those persons interest and concerns as land owners in Kapiti and as ratepayers whose rights as landowners are being threatened with curtailment under the PDP. The very opposite of extraneous I would suggest. The information relates to their rights and interests as enshrined in the Resource Management Act and the Local Government Act. Bulk collection - it contextual meaning As you note there has been no judicial decision on the phrase. We are left with relying on its meaning in common parlance. The Shorter Oxford defines it thus: “...the whole amount (of a commodity); ...a large quantity...the greater part or number. “ What CRU is seeking is not bulk but relatively precise specifically defined addresses meeting clear criteria. The numbers sought are likely to be less than 3% of the names on the rating roll. This number is the opposite of “Bulk”. The Supreme Court in Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC5 emphasised the need to contextually interpret words, see esp Blanchard J at [11[ and Tipping J at19] McGrath J at [57]-[66] esp at [61]. Although the Court was dealing with a commercial contract in that instance there is other authority that establishes the same principles apply to statutory interpretation. Further one of the key tests is to ask what is the evil that the statute is designed to thwart? Your letter indicates that is no longer a valid test, but no authority is cited to justify such a major shift in statutory interpretation. In THE CHANGING APPROACH TO THE INTERPRETATION OF STATUTES (2002) 33 VUWLR Professor Burrows said: “Hand-in-hand with the purposive approach goes two other things. The first is a concentration on the "scheme of the Act". Sir Ivor has emphasised this in many leading judgments. He has described scheme and purpose as "the twin pillars of modern interpretation". I think the term "scheme" is not consistently used by everyone, but at the very least it means that the provision in question must be read in the context of the Act as a whole. Only in that way can the interpreter get inside the mind of the legislator, and fully understand the philosophy and theme of the legislation. It is common nowadays for a judgment to set out in full not just the provision under interpretation but a number of the Act's other provisions. The art of
interpretation lies in abandoning one's own prejudices and preconceptions and fully appreciating the direction of the legislature's thinking.” I refer you to the decisions in R v Ireland [1998] AC 147 (HL); McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277 (HL); Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 (HL). He went on to note: “First, there is what I might describe as contextual material, or, to use a fashionable term, the "factual matrix". It has always been admissible to some extent, but in the past tended to be an adjunct to the "mischief" rule that was only resorted to if literal interpretation produced no clear result”. Of particular relevance are the observations of Richardsn J in Williams v AttorneyGeneral [1990] 1 NZLR 646, 681 (CA) Richardson J. Professor Burrows' second major point was the use of extraneous material, such as the excerpts I referred you to in my initial letter, and apparently dismissed as being not relevant. I would repeat that initial submission, namely that the purpose of the evil of selling off bulk names of ratepayers was the evil Parliament was concerned to stop, not the type of request we have made. I submit our position is clearly supported by relevant case law and academic analysis. As Professor Burrows put it: “Over the past 15 years or so in New Zealand, and more recently in England, it has become a common occurrence for counsel to cite, and courts to refer to, extracts from Parliamentary debates, explanatory notes to Bills, amendments to Bills, and, more recently, reports of select committees. Most commonly they are used to provide contextual background and evidence of the genesis of the Bill in question.” I note you have made a finding of fact, namely that ratepayers were sent copies of the 25 August letter to their rating addresses, and have chosen to ignore our evidence that this was not the case. Here is a list of members who are non-resident and did not get any mail sent to their rating address. I have received advice from 6 other people who don’t want to be disclosed- 4 living in Singapore, in the same category. These names are not to be disclosed to any other party for privacy reasons. We consider this only the tip of the iceberg.
Paul Barrett. 4 Kirkway Raumati South Barrett Family Trust. Rachael Bartlett. 37 The Esplanade Raumati South. Erika J Bellis. 22 Kohutuhutu Rd Raumati Beach. JA and RV Bennett. 176 Weggery Drive Waikanae Beach Grant Cathro. 189A Manly St Paraparaum Grant Cathro. 189 Manly St Paraparaum Susie DeDera. 329A Rosetta Rd Raumati Beach. Ken and Phillipa Greer. 80A The Esplanade Raumati South. David Hendry. 106 The Esplanade Raumati South. P. John Holden. 51A Rosetta Rd Raumati Beach Steve lange. 111 Rosetta Rd Raumati Beach. Noelean Morris. 19 Wharemauku Rd Raumati Beach. No email Tracy and Glen Nyhan. 184 Manly St Paraparaumu Beach. Loraine Mary Perrett. 14 Waiheke St Waikanae. Greg and Sonia Pratt. 6 Nuhaka Place Paraparaumu Beach. Michael and Lesley Shanahan. 41/43 Field Way Waikanae Beach. Paul and Charlie Thomson. 221 Rosetta Rd Raumati Beach.
Your faithfully,
C B Ruthe