Chapter 3: Protecting good government


This chapter considers the provisions that protect effective government and administration, colloquially referred to as the “good government” withholding grounds. The withholding grounds in question are sections:

  • 9(2)(f) of the OIA, concerned with the maintenance of constitutional conventions; and
  • 9(2)(g)(i) of the OIA and 7(2)(f)(i) of LGOIMA, concerned with maintaining the effective conduct of public affairs through the free and frank expression of opinion.

These grounds can be overridden by the public interest in disclosure in a particular case. Along with the grounds which allow information to be withheld to protect commercial interests (discussed in chapter 5), they are the grounds which cause the most difficulty for those who request and who hold official information.

The responses to our initial survey and submissions on our issues paper acknowledged the importance of the good government grounds but suggest that they are poorly understood and can be difficult for officials to apply. Their somewhat opaque nature and a perception among users that they are overused lead to a lack of trust, a result at odds with the premise of official information legislation, which is about enhancing trust in government.

The Law Commission considered these grounds in its 1997 review of the OIA.60 It identified significant issues with the grounds but, after attempting to redraft them, ultimately decided that the grounds were best left as they were, and that improvements could be gained instead through administrative means such as training and greater public discussion. The Commission said:61

The developing position under the Act has shown s 9(2)(f) and (g) to be less than perfect in terms of clarity and logic of presentation. Nevertheless the practice they have produced is, in general, well understood. We have considered whether there would be value in rewriting them, either to state the existing propositions with more clarity and logic, or to identify more precisely the types of interest they are intended to protect. We have concluded that a change to the legislative formulation would be counter-productive. The jurisprudence and practice under the existing provisions has taken some time to develop – it will, and ought to continue to evolve.

The passage of time suggests that such training and information as are available have not done enough to increase the acceptance or understanding of the good government grounds. We consider that some of the misunderstanding and confusion that attends these grounds is caused by their awkward expression and conceptually incoherent nature.

The enduring nature of these problems has led us to make recommendations in this report for a redrafted set of grounds. With some minor exceptions, the intention is not substantially to change the substance of the grounds but, rather, to improve the expression of the grounds to better reflect the interests that they are intended to protect. The guidance and case notes of the Ombudsmen in relation to the existing grounds will therefore continue to be applicable.

Law Commission Review of the Official Information Act 1982 (NZLC R40, 1997) at ch 6.

At [247].