This is the third part in the Commerce (Promoting Competition and Other Matters) Amendment Bill (Bill) series. This article we will look at amendments to enhance protections on confidential information held by the Commerce Commission (Commission), and people that provide information to the Commission.
The Commission, like many other public bodies, is subject to the Official Information Act 1982 (OIA). The underlying principle of the OIA is that information should be made available unless there is a good reason for withholding it. While freedom of information legislation promotes accountability of the public service, its application can sit uncomfortably with investigatory agencies, like the Commission, that hold highly sensitive and confidential third party information.
The OIA has long been a pain point for businesses, consumers and the Commission itself. The Commission must consider each request for information individually and is unable to give absolute guarantees of confidentiality. This makes the system cumbersome, slow and somewhat unpredictable.
Problem definition
The materials accompanying the Bill note that businesses and individuals are increasingly reluctant to share information with the Commission due to fears that it could be released under the OIA. This, it is said, has a chilling effect on third-party cooperation as they fear retaliation. Several examples from Commission processes are cited as evidence in the relevant Cabinet Paper. The Regulatory Impact Statement (RIS) also notes concerns about the OIA being used strategically to obtain competitors’ confidential information.
This is consistent with my lived experience working for both the Commission and private clients.
The proposed amendments
The Bill would introduce several new provisions into the Commerce Act (Act) to enhance protections on information, documents and evidence held by the Commission, as well as those that provide it.
A new provision protecting information supplied ”in confidence”
New section 100AA would introduce a general prohibition on the Commission publishing or disclosing:
- information provided to it ”in confidence”; and
- information ”derived from or based on” information provided in confidence.
However, this would be subject to several carve-outs. The Commission would be able to make such information available under the OIA if:
- the information is public;
- it is in statistical or summary form;
- disclosure is ”for the purposes of, or in connection with” the Commission exercising its functions or powers under any legislation;
- it is to another public body under section 99AA of the Act, or via a cooperation agreement;
- it is to a person that the Commission considers ”has a proper interest” in receiving the information; or
- it is by consent of the person who supplied the information, or to whom it relates.
After 10 years the OIA would apply in the normal way, although the Commission would have an ability to extend time if disclosure ”may cause harm” to the person that supplied the information, or who is the subject of the information.
This provision is similar to section 269 of the Reserve Bank of New Zealand Act 2021 and section 59 of the Financial Markets Authority Act 2011.
Enhanced confidentiality order powers
Section 100 of the Act currently gives the Commission the ability to make confidentiality orders prohibiting the publication or communication of information, documents and evidence obtained by the Commission in connection with processes such as merger clearance applications and investigations. Currently any order made by the Commission expires 20 working days following the conclusion of the relevant matter.
These orders are used infrequently, and almost never in merger clearance or authorisation processes. However the proposed amendments would provide that these orders last significantly longer, and give the Commission additional flexibility when making them. Among other things the amendments would:
- extend the expiry date for orders from 20 working days after the relevant matter concludes, to 10 years;
- allow the Commission to make orders in relation to classes of information, documents and evidence;
- allow the Commission to make orders on terms and conditions ”that it thinks fit”;
- introduce a ”reasonable excuse” defence; and
- significantly increases maximum fines for breaching an order from $4,000 to $100,000 for an individual, and from $12,000 to $300,000 for a company.
New non-retaliation and victimisation provisions
Finally, the proposed amendments create prohibitions on employers retaliating against employees, and on persons victimising anyone, on the basis that they have complained or provided information to the Commission. These provisions are based on those that appear in the Protected Disclosures (Protection of Whistleblowers) Act 2022.
- Under new section 97A, an employer must not ”retaliate or threaten to retaliate” because an employee makes (or intends to make) a complaint to the Commission or provides (or intends to provide) the Commission with information. There are carve-outs for false allegations or employees acting in ”bad faith”, as well as for sensitive information such as intelligence and security information.
- Similarly, under new section 97B a person must not ”treat, or threaten to treat” another person ”less favourably” than other persons in the same or substantially similar circumstances because they make (or intend to make) a complaint to the Commission or provide (or intend to provide) the Commission with information. The same ’bad faith’ and ’security’ carve outs apply, but in addition people must not be treated less favourably because they encouraged others to complain or provide information to the Commission.
- A breach of section 97A would mean that an employee has a personal grievance against their employer under the Employment Relations Act 2000. A breach of section 97B would carry equivalent sanctions to a breach of Part 2 of the Act, with penalties of up to $500,000 for individuals and $10 million (or more) for companies.
Assessing the proposed amendments
Any confidentiality regime needs to strike a balance between protecting sensitive information while also allowing disclosure in appropriate circumstances, for example for natural justice reasons. On the whole, the proposed amendments would be a significant improvement on the status quo. There is increased certainty about what information will be protected, and what may be released (and in what circumstances). I expect that this will give those providing information to the Commission significantly more comfort than exists today.
The general prohibition in new section 100AA effectively disapplies the OIA for 10 years (or longer) but gives the Commission discretion to release information in appropriate circumstances. For example, the wording of the provision would not appear to prevent it disclosing information to a court during proceedings, nor disclose it to investigated parties where natural justice requires. These are appropriate carve-outs and, while broad, still require that any decision on release is consistent with the OIA.
For matters involving particularly sensitive information eg merger clearance processes, the ability for the Commission to issue confidentiality orders over classes of information, documents and evidence, and impose conditions on those orders, gives the Commission added flexibility and control. This would appear to allow the Commission to make orders over, for example, all confidential versions of documents received in a merger clearance application, with release only to external counsel of the merger parties and other parties with a sufficiently affected interest.
(As an aside, in relation to merger control the Commission has recently announced that it plans to consult on how it handles confidential information in early 2026. My hope is that the Commission takes note of the proposed amendments and uses them as a basis to establish an access to file regime.)
Finally, the buttressing of the new prohibitions with anti-retaliation and victimisation prohibitions and significant penalties is likely to give people supplying the Commission with information additional comfort.
One thing that is missing, though, is that the amendments do not impose a requirement on the Commission to consult a person when their information is being provided to another public body under section 99AA of the Act. In my view, the Commission should be required to consult with third parties unless there are good reasons not to. This would be consistent not only with the stated purpose of the above amendments, but also with the Ombudsman’s guidance on the release of information under the OIA.
If you would like to discuss any aspect of what has been covered in this article, please get in touch.
