Chapter 3: Protecting good government

Submitters’ views about the good government grounds

Although no submitter questioned the need for the good government grounds, it is clear from submissions on the issues paper (and our initial survey) that the appropriate balance between the interests the grounds are intended to protect and the public interest in disclosure is hotly contested.

All submitters except one agreed that the good government grounds required some redrafting. However, there was much less agreement about whether this redrafting should simply strive to maintain the substance of the current grounds or whether the opportunity should be taken to narrow or broaden their scope.

On the one hand, some submitters (predominantly holders of official information) considered that the grounds did not always provide sufficient protection or certainty about what information could be withheld and had led to some adverse impacts on the policy-making process. These included a reluctance to commit advice to paper and some undermining of the ability or willingness of agencies to provide free and frank advice. As argued by the Public Service Association:

Our perception is that the Act has led gradually to the development of a “verbal culture” within policy agencies where as much discussion as possible is undertaken face-to-face or by telephone and “sensitive” issues and views are not written down and obviously not disclosed when such information is requested. Not only does this risk undermining the intent of the Act, but the lack of written expression of some information may also lead to less rigorous and precise debate in some cases, and may impair the institutional memory of the public service.

On the other hand, other submitters (predominantly requesters of official information) considered that the grounds made it “too easy” for information to be withheld. In particular, some submitters gave examples from personal experience of situations where they considered that the grounds had been relied on erroneously to prevent the release of controversial or embarrassing information.

We share the concern that there is potential for the good government grounds to be used merely to withhold embarrassing or controversial information. But we also acknowledge the concerns raised by the Public Service Association, which have been recognised and discussed elsewhere.63 In some respects, all of these concerns are the inevitable consequences of an information disclosure regime. However, as we discuss below, we think there are some changes that could be made to the good government grounds to minimise their current complexity and clarify their application. The increasing moves towards proactive disclosure of official information may also assist to remove some of the tension in this area, as will the development of robust guidance on how the grounds are to be applied.

See Steven Price The Official Information Act 1982: A Window on Government or Curtains Drawn? (New Zealand Centre for Public Law, 2005) and Nicola White Free and Frank: Making the Official Information Act 1982 Work Better (Institute of Policy Studies, Wellington, 2007).