Neil Sands
The Ombudsman has criticised the Prime Minister’s Office (PMO) for failing to disclose a briefing from Fonterra and Z Energy that suggested controversial climate change reforms, saying the approach Christopher Luxon’s office took was “unreasonable” and risked undermining confidence in the Official Information Act (OIA).
Chief Ombudsman John Allen
Chief Ombudsman John Allen also slammed the quality of record-keeping at PMO, including the use of personal emails to handle official information, calling on Luxon to remind all ministerial staffers of their obligations under the OIA.
Allen said PMO had apologised for the situation, which involved the meetings with Fonterra and Z Energy, as well as a briefing note proposing legislative changes, which were subsequently adopted by the government to quash a lawsuit by environmental activist Michael Smith.
Neither the meetings nor the briefing note, which was supplied in 2024, was disclosed when Environmental Law Initiative submitted an OIA request to PMO in March 2025. They emerged only in May this year as part of Smith’s legal proceedings in the High Court.
Allen said the information, which had been supplied in hard copy and email to a staffer’s personal account, was official information and should have been included in the OIA response.
“The handling of the request should have identified the briefing and associated documents and the failure to do so was unreasonable,” he said.
‘Surprising’ memory failure
Allen questioned the staffer, former chief policy adviser Matt Burgess, who no longer works at the Beehive, to clarify what happened to the documents.
Burgess said he could not recall the Fonterra and Z Energy meetings, did not know what he did with the hard copy of the briefings and could not fully remember dealing with the OIA request, although he advised “there was no deliberate decision to exclude the documents at issue”.
In response, Allen noted: “While I did not find any evidence that contradicts this advice and I appreciate that the chief policy advisor role has a high-workload, I do find it surprising that that the former chief policy advisor had no recollection of what was done with the information in the briefings, given they related to a prominent issue, were provided by high profile companies and the wording for the suggested legislative change in the briefing note was ultimately reflected in the proposed changes to the Climate Change Response Act 2002.
“These appear to have been documents of significance to informing the legislative process that followed.”
Burgess told Allen it was “well documented” that the Department of Internal Affairs’ IT systems could not adequately deal with many files and he used his personal email to overcome the limitations.
“The possibility of widespread use of personal email addresses to receive official information is particularly concerning to me. Receiving official information in this way significantly raises the risk of it not being identified in response to OIA requests, as was the case here,” Allen said.
The Ombudsman said PMO has asked staff to review their personal records, accounts and devices to ensure all records were saved in the appropriate systems to be part of the official record.
Smith this week announced he is challenging the validity of the government’s legislation to scuttle his lawsuit, arguing that it amounts to procedural impropriety because it resulted from off-the-record lobbying by corporate lobbyists without consulting any other parties.
“Something has gone seriously wrong here,” Smith said. “The government decided to introduce this legislation after the defendants lobbied for it. Their lobbying efforts disappeared from the public record.
“Decisions about whether businesses should get a free pass should not be made by businesses and officials behind closed doors.”
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