Posted by Idiot/Savant
http://norightturn.blogspot.com/2025/11/the-commerce-commissions-weak-case-for.html
Back in September, the regime announced plans to
give new powers to the Commerce Commission. But the announcement also included this:
We have also heard in your submissions that businesses and individuals are increasingly reluctant to share information with the Commission because of fears confidential information could be released under the Official Information Act, potentially leading to retaliation or misuse of confidential information by competitors. This is undermining the Commission’s ability to collect evidence and receive useful information, particularly in investigations and merger clearances.
The regime's solution was of course more secrecy, with a 10-year blanket exemption from the OIA for "confidential" information provided to the Commission, and greater power for the Commission to issue temporary exemption orders. I was curious about the justification for this, so I asked the Commission whether they in fact had any evidence supporting it: were they aware of any OIA release from them actually causing the harms the Minister had alleged, and did they have any evidence their
existing secrecy powers were inadequate? In both cases,
the answer was "no":
Regarding the first two bullets of your request, the Commission is not aware of any specific instances where information we have released under the OIA has caused harm to the business who provided the information to us.
The Commission is also not aware of any documents containing specific evidence that section 100 of the Commerce Act is inadequate.
What about wider advice on the OIA? Here the Commission said they had information, then refused to provide it for a further two months as they were (illegally) "consulting MBIE and the Minister’s Office prior to making our decision on the potential release of this material". But they finally provided the
response yesterday, and a
folder full of documents. There are a few interesting things in here, including that the Commission has apparently been
running its own private "special advocate"-style system for merger cases, where lawyers are given access to evidence but forbidden from discussing it with or disclosing it to their clients - similar to the
system used in "national security" cases here and overseas, with all the unfairness and professional issues that entails, only without any statutory authorisation. But on the actual case for secrecy, its largely fear, uncertainty, and doubt. TL;DR businesses are afraid they will be harmed by the release of "confidential" or commercially sensitive information. There's also fear over the public interest over-ride, and the inability of the Commission to give categorical assurances of total secrecy. Both show that businesses do not understand the law (which is to be expected), but that the Commission seriously entertains this shows that they don't either (possibly due to corporate culture capture). The fact is that there is a clear and obvious case for withholding confidential evidence under
s9(2)(ba)(i) (in that it is clearly in the public interest that people are able to give evidence to the Commission, so if release would inhibit the giving of such evidence in future, s9(2)(ba)(i) applies), and while this is subject to the
public interest test, the reality is that in practice such information is almost
never released, because the usual public interest factors of accountability, transparency, and participation simply don't apply to information provided by third parties about themselves.
(There is the issue of the accountability of the Commission for its decisions, which means they must release the evidence which justifies them, but they should be doing that publicly anyway, so that's not an OIA issue, but a basic one of administrative law...)
However, there is one significant issue: big companies intimidating smaller ones from giving evidence against them:
In cases involving an applicant with alleged market power, dominance, or some other form of power or leverage over market participants, those market participants may be particularly concerned by the prospect of any information provided to us being provided to the applicant. This is of particular concern to us, as cases of this nature generally merit scrutiny.
Which sounds reasonable at first glance. But it isn't specifically an OIA problem - because, as the Commission admits, it is
required to provide such information to applicants for reasons of natural justice. So the applicants are going to find out whether a request is made or not, and all attacking the OIA does is hide information from other people.
The obvious move here is not to undermine the OIA, but to target the actual problem of retaliation and victimisation, just as we do for whistleblowers. And the government announcement included that, so there's no need for secrecy at all.
The release also includes a summary of public submissions to a consultation by MBIE, which gives a good overview of their consultees' views on "protecting confidential information". Its worth noting that a broad OIA exemption was not one of the options canvassed in that consultation, so the Commission is going well beyond what was floated. Its also shocking that any government agency would fail to recognise the constitutional nature of the OIA, and that their response to it causing them minor irritations is to try and exempt themselves from a fundamental part of our constitution. But again, this is likely a matter of capture by corporate culture. We know that local and international business are fundamentally hostile to democracy and transparency; its utterly shocking that the body we have established to police them has been so captured by them as to share that hostility. At the end of the day, the Commerce Commission is a public body. That means it must respect democratic norms - including the OIA.
http://norightturn.blogspot.com/2025/11/the-commerce-commissions-weak-case-for.html
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