Associate Health Minister Casey Costello admits to "flawed" actions and "sincerely apologised" to RNZ and public health expert Janet Hoek. Photo: RNZ / Angus Dreaver
Associate Health Minister Casey Costello has been severely reprimanded by the Chief Ombudsman and forced to apologise for trying to keep information about tobacco and vaping policy secret.
Chief Ombudsman Judge Peter Boshier took the rare step of forcing Costello to apologise to RNZ and to Otago University Professor of Public Health Janet Hoek for her handling of Official Information Act (OIA) requests.
In his ruling, Boshier said Costello's actions in withholding the information were "unreasonable and contrary to law".
Costello came under intense scrutiny earlier this year after RNZ revealed that her public statements on tobacco and vaping policy were contradicted by official documents she had sent to health officials.
In late December RNZ made an OIA request, asking for all documents sent, held or received by Costello relating to tobacco control and vaping policy.
Costello refused to release any documents at all, citing a clause in the OIA protecting confidential advice tendered by ministers and officials.
RNZ asked the Ombudsman to intervene and the results of his investigation show deep concerns about how Costello handled the information.
"Her scoping of the requests was inadequate and incomplete, as it seemed there would have been a large volume of information within the scope of the requests that she had not accounted for," Boshier found.
Costello also failed to supply the Ombudsman with information he required for his investigation.
"The Associate Minister omitted to provide the Ombudsman with the un-redacted information," Boshier said.
"The Associate Minister provided no explanation of her decision making on the requests, including what public interest factors she considered when concluding that the need to withhold the information was not outweighed by the public interest in its release."
The ruling will inform handling of future OIA requests, as Boshier has insisted it be published as a "case note" under the authority of the Ombudsmen Rules 1989.
The Chief Ombudsman ruled that Costello should make fresh decisions on the OIA requests from RNZ and Hoek "and make written apologies to the requesters for the deficiencies identified".
RNZ has received a written apology from Costello, who said her actions were "flawed and meant that you did not receive the transparency expected of government around its decision making. I sincerely apologise for this".
Costello's apology states that her office was in a "transitional state" at the time of RNZ's request and "while it does not excuse my decision in this circumstance" her office was now better equipped to manage OIA requests.
Costello has referred to tobacco proposals that came from her office as an "extraction of a whole lot of historical documents". Photo: RNZ
Repeal and replacement of smokefree plans
Costello came under fire in Parliament earlier in the year with multiple revelations putting pressure on the minister to explain why her comments in the media were at odds with the contents of official documents.
When RNZ asked Costello in January whether she was proposing a three-year freeze on tobacco excise she claimed she had not considered it.
"I've had no discussions on that at all. Like, that's - it's not even something I specifically sought advice on," she told RNZ. "I haven't looked at a freeze on the excise at all."
But a Health Ministry document, sent to Costello, said the minister was proposing to freeze the excise tax. "The additional information you provided to us proposed also to freeze the excise on smoked tobacco for three years."
Costello led government moves to scrap laws slashing tobacco retailers from 6000 to 600, removing 95 percent of the nicotine from cigarettes and creating a smokefree generation by banning sales to those born after 2009.
Costello's office sent a document to the Health Ministry proposing ideas to help develop new laws to replace Labour's smokefree plans.
The document included the idea of freezing the excise tax and also the claim that nicotine was no more harmful than caffeine.
But Costello still maintains she does not know where the document came from.
In an interview on Newstalk ZB, Costello said the document was an "extraction of a whole lot of historical documents - it was sitting around and [someone] just compiled them all into one big list". She didn't know who wrote the document, she said. "I'm not sure who put it on my desk."