Chapter 3: Protecting good government

Redrafted good government grounds

Submitters universally supported the view expressed in our issues paper that the good government grounds are so confusing and unclear that some redrafting of them was desirable. We recommend accordingly. The intention is not substantially to change the substance of the existing grounds, merely to clarify their expression, and to address the concerns we have identified above.

The proposed redraft in the issues paper

In the issues paper we proposed a redrafted provision which would combine sections 9(2)(f) and (g) as follows:82

The withholding of the information is necessary to maintain the effective conduct of public affairs by protecting:

(i) collective and individual ministerial responsibility;

(ii) the political neutrality of officials;

(iii) negotiations and the free and frank expression of opinion between the parties that form the government;

(iv) the free and frank expression of opinions and provision of advice by or between Ministers of the Crown or members of an organisation or officers and employees of any department or organisation in the course of their duty, where the making available of the information would be likely to prejudice the free and frank expression of similar opinion or the provision of advice in the future;

(v) the ability of Ministers properly to consider advice tendered before a decision is made;

(vi) Ministers, members of organisations, officers and employees of any department or organisation from improper pressure or harassment;

(vii) the confidentiality of communications by or with or about the Sovereign or her representative.

Most of this redraft attempts to restate, more clearly, what is in the current provisions. It also attempts to address the order of the grounds which, as has regularly been noted by the Ombudsmen and was noted by the Law Commission in its earlier review,83 do not reflect the chronological order in which opinions and advice are generated. The redraft attempts to reflect the natural order of the policy process.

We also asked for views on whether a simpler approach was more desirable, based on the relevant provision in the United Kingdom’s Freedom of Information Act 2000, reproduced above at paragraph 3.41.

Submitters’ views on the redraft

Submitters made a number of useful comments on the proposed draft which, while not leading to us reconsidering the approach to the redraft entirely, has led us to make a number of changes to it. We consider these comments in detail before recommending an amended redraft, below.

A small number of submitters preferred the simplicity of the United Kingdom approach. However, others considered that its simplicity would itself lead to difficulty and may increase debate about what should be withheld and what should be released. While the economy of expression of the United Kingdom approach has some attractions, we remain unconvinced that it conveys all the nuances of the required protection and prefer our own proposal.

While supporting the need to redraft the good government grounds, the Ombudsmen raised some general issues with the proposed redraft. These included that some of the identified interests (for example, (iii), (iv) and (v)) were better framed as prejudices to be avoided rather than interests to be protected. This would be consistent with the Ombudsmen’s approach to interpreting these grounds, which requires holders of official information to identify the harm that release of the information would cause. The Ombudsmen were also concerned that identifying interests to be protected rather than prejudices to be avoided may “tip the balance” towards the withholding of information rather than its release.

We accept that it is preferable to be transparent on this matter. Providing that transparency would reinforce our intention not to disturb the underlying approach to how these grounds currently apply. We think that the desirability of a prejudice-based assessment can be made clear by referring to the need to “avoid prejudice to” the effective conduct of public affairs, rather than referring to the need to “maintain” it.

Issues paper grounds (i) and (ii)

The withholding of the information is necessary to maintain the effective conduct of public affairs by protecting:

(i) collective and individual ministerial responsibility;

(ii) the political neutrality of officials

Grounds (i) and (ii) are reformulations of the current provisions, but which omit the reference to “constitutional conventions” while attempting to catch the required substance.

One submitter considered that both grounds should be rewritten to explain what the concepts within them meant. However, we think that this issue is best addressed by guidance, rather than by attempting to elaborate on the grounds in the statute.

Issues paper ground (iii)

The withholding of the information is necessary to maintain the effective conduct of public affairs by protecting:

(iii) negotiations and the free and frank expression of opinion between the parties that form the government

Ground (iii) is new. It reflects the fact that, post-MMP, the Government can be made up of multiple parties. The ability for these parties to communicate with each other confidentially is necessary and worthy of protection.

The Ombudsmen (and the New Zealand Law Society) thought that the interests this ground would protect were already covered by other grounds. In past cases, the Ombudsmen have found that this type of information is protected by section 9(2)(f)(iv). In the interests of providing greater certainty and clarity, we remain of the view that proposed ground (iii) is a useful addition to the good government grounds.

It may be that much of the information generated or used in such exchanges would not be official information at all in that it would be held by political parties rather than by agencies subject to the OIA. But it seems desirable to have protection for information of this kind which is, or becomes, subject to the OIA by virtue of the agency which holds it.

However, a number of submitters argued that the draft was too narrow in a number of respects. First, it was solely directed at the government formation process rather than ongoing support arrangements between the parties that formed the Government. Secondly, it did not cater for situations where a political party was in a support role to the Government and not formally part of the Government itself. Thirdly, it applied only to political parties and not situations where an individual MP was negotiating to be, or was, part of the Government.

A number of other drafting suggestions were made. These included that it was not clear that the reference to parties was a reference to “political parties”. It was also suggested that, if a reference to advice was included in ground (iv), it should also be included in this ground. Alternatively, the Ombudsmen suggested that a preferable approach was to focus the grounds on the negotiations context so that the reference to the free and frank expression of opinion (or advice) became unnecessary. We agree that this is the preferable approach.

Issues paper ground (iv)

The withholding of the information is necessary to maintain the effective conduct of public affairs by protecting:

(iv) the free and frank expression of opinions and provision of advice by or between Ministers of the Crown or members of an organisation or officers and employees of any department or organisation in the course of their duty, where the making available of the information would be likely to prejudice the free and frank expression of similar opinion or the provision of advice in the future

Ground (iv) is a reformulation of the current ground in section 9(2)(g)(i) of the OIA and section 7(2)(f)(i) of the LGOIMA, but differs in a number of respects. A reference to “advice” is included. It also spells out what we see as the main rationale for the protection of free and frank advice, namely the concern that publication might deter the provision of such advice in the future.

Most submitters who commented on this ground supported its reference to “advice” as well as “opinion”, although there was some confusion about the implications of doing so. For example, while some submitters considered that it would simply clarify the current approach, another submitter considered that it would “raise the bar” significantly in terms of finding reasons to withhold, while yet other submitters considered that it would expand the information that could be withheld. The Ombudsmen did not object to the inclusion of “advice” but did not see it as necessary because, in their view, “advice” was already covered by the reference to “opinion”.

We continue to support the inclusion of “advice” in any redrafted ground. Given the current confusion about the difference between “advice” and “opinion” and submitters’ calls for greater certainty in this area, we think that explicitly referring to “advice” will provide some much needed clarity. Including advice in this ground may also mitigate some of the concern amongst submitters about the narrowness of proposed ground (v).

Another concern arising in submissions was that sometimes, in the course of giving advice to Ministers, officials impart or receive confidential information. Sometimes, indeed, it may be of a sensitive kind, relating even to personal matters. Advice and opinions tend to interact with, and be based on, information in such a way that they are entwined and not readily severable. We agree that information imparted or received as part of advice or opinions should be protected, and in case other provisions may be thought inadequate to meet all cases, we recommend that “information” be added to “opinions” and “advice” in a redrafted ground (iv).

A number of other drafting suggestions were made in relation to ground (iv). One submitter thought that the reference to “similar” did not add anything and could lead to ambiguity – for example, because it was unclear whether it was to be read in a generic sense or specifically to the particular type or subject-matter of the advice or opinion that was the subject of the current request. Other submitters considered that the ground could be simplified. Submitters also pointed out that the redraft omitted the provision of opinions “to” Ministers (for example, by those outside government), in contrast to the current section 9(2)(g)(i). We agree with these suggestions, which we have attempted to address in the proposed redraft below.

Issues paper ground (v)

The withholding of the information is necessary to maintain the effective conduct of public affairs by protecting:

(v) the ability of Ministers properly to consider advice tendered before a decision is made

Ground (v) is a substantial reformulation of section 9(2)(f)(iv). It reflects the Ombudsmen’s approach to the current ground, but in a clearer and more transparent way. Its purpose is to give Ministers some room to consider advice they receive. It gives space for what we have heard described as “orderly decision making”.

However some submitters thought that, as phrased, it was too narrow. The Ombudsmen noted that it would not apply to advice that does not relate to conventional ministerial decision-making processes – for example, draft answers to parliamentary questions, CAB 100 forms and advice from the Department of the Prime Minister and Cabinet to the Prime Minister.

The Ombudsmen also referred to the complexity of government processes where there can be multiple stages to a project with no real end point in sight. This might make the ground difficult to apply in some situations. The Ombudsmen also noted that the provision of advice will not necessarily lead to a decision being made – it might, for example, simply be provided for the Minister’s information or the Minister, for whatever reason, may choose not to make a decision in relation to advice that has been provided.

Information provided in some of the situations identified by the Ombudsmen is likely to fall within proposed ground (iv). Nevertheless, we agree that reconsideration of the proposed ground (v) is necessary. In particular, we propose, for the reasons given, to remove the limitation on protecting the confidentiality of advice “before a decision is made”.

It has also been queried whether “tender” covers all advice, whether requested or not. We think it should, and that the legislative provision should make that clear, to remove any possible argument.

A concern was expressed by some agencies that the proposed new formulation does not quite cover all the ground in the present section 9(2)(f)(iv): “the confidentiality of advice tendered by Ministers of the Crown and officials”. However we think that any residual matters which fall outside this suggested new ground (v) will fall within, and be protected by, the new ground (iv) which we have explained above.

Issues paper ground (vi)

The withholding of the information is necessary to maintain the effective conduct of public affairs by protecting:

(vi) Ministers, members of organisations, officers and employees of any department or organisation from improper pressure or harassment

Ground (vi) is a reformulation of the current provision.

The Ombudsmen considered that, in order to maintain the current approach to the ground, it should include a reference to the effective conduct of public affairs. However, we consider that this is adequately covered by the opening sentence of the provision and do not think it is necessary to include a further reference to the effective conduct of public affairs in the ground itself.

Issues paper ground (vii)

The withholding of the information is necessary to maintain the effective conduct of public affairs by protecting:

(vii) the confidentiality of communications by or with or about the Sovereign or her representative.

Ground (vii) is a reformulation of section 9(2)(f)(i), save for the addition of the word “about”. That word was added at the suggestion of the Cabinet Office, who asked us to consider whether communications about the Sovereign and her representative should be protected. We consider that they should be. We also agree that “the Sovereign’s representative” should not be confined to the Governor-General, but should extend also to a member of the royal family who visits New Zealand on behalf of Her Majesty.

Recommended good government grounds

In light of these submissions, we have amended the draft proposed in the issues paper, and our recommended good government grounds for insertion in the OIA are now as follows:

The withholding of the information is necessary to avoid prejudice to the effective conduct of public affairs by protecting:

(i)collective and individual ministerial responsibility;

(ii)the political neutrality of officials;

(iii)negotiations between political parties or members of parliament for the purpose of forming or supporting the government;

(iv)the free and frank expression of opinions and provision of advice or information by, between or to Ministers of the Crown or members of an organisation or officers and employees of any department or organisation in the course of their duty;

(v)the ability of Ministers properly to consider advice tendered, whether that advice was requested or not;

(vi)Ministers, members of organisations, officers and employees of any department or organisation from improper pressure or harassment;

(vii)the confidentiality of communications by or with or about the Sovereign or her representative.

A much simpler version of these grounds is appropriate for LGOIMA, which includes no equivalent provision to section 9(2)(f) of the OIA. We recommend that the LGOIMA provision be as follows:

The withholding of the information is necessary to avoid prejudice to the effective conduct of public affairs by protecting:

(i) the free and frank expression of opinions and provision of advice or information by, between or to members or officers or employees of any local authority, in the course of their duty;

(ii)such members, officers and employees from improper pressure or harassment;

(iii)the ability of a local authority properly to consider advice tendered, whether that advice was requested or not.

Guidance

Although we propose that the good government grounds be reformulated, we also believe that assistance in the form of better guidance remains crucial to these grounds being understood and consistently applied.84 There was notable confusion and misunderstanding amongst submitters about how these grounds were to be applied. Submitters supported the need for greater guidance in this area.

Since most of the redrafting relates only to expressing the existing concepts in plainer form, we envisage that the large volume of Ombudsmen guidance and case precedents would remain as applicable and valuable as before. The omission of the reference to “constitutional conventions” should not in any way affect the value of this earlier guidance and jurisprudence.

R8Sections 9(2)(f) and 9(2)(g) of the OIA (the “good government” grounds) should be replaced by a provision stating that:

The withholding of the information is necessary to avoid prejudice to the effective conduct of public affairs by protecting:

(i)collective and individual ministerial responsibility;

(ii)the political neutrality of officials;

(iii)negotiations between political parties or Members of Parliament for the purpose of forming or supporting the government;

(iv)the free and frank expression of opinions and provision of advice or information by, between or to Ministers of the Crown or members of an organisation or officers and employees of any department or organisation in the course of their duty;

(v)the ability of Ministers properly to consider advice tendered, whether that advice was requested or not;

(vi)Ministers, members of organisations, officers and employees of any department or organisation from improper pressure or harassment;

(vii)the confidentiality of communications by or with or about the Sovereign or her representative.

R9

Section 7(2)(f) of the LGOIMA should be replaced by a provision stating that:

The withholding of the information is necessary to avoid prejudice to the effective conduct of public affairs by protecting:

(i)the free and frank expression of opinions and provision of advice or information by, between or to members or officers or employees of any local authority, in the course of their duty;

(ii)such members, officers and employees from improper pressure or harassment;

(iii)the ability of a local authority properly to consider advice tendered, whether that advice was requested or not.

Issues Paper at [4.46].

Law Commission, above n 60, at [234].

See [4.79]–[4.84].