Chapter 3: Protecting good government

The issues

Constitutional conventions

Section 9(2)(f) of the OIA provides that, subject to release in the public interest, information can be withheld if it is necessary to:64

(f) maintain the constitutional conventions for the time being which protect—

(i) the confidentiality of communications by or with the Sovereign or her representative:

(ii) collective and individual ministerial responsibility:

(iii) the political neutrality of officials:

(iv) the confidentiality of advice tendered by Ministers of the Crown and officials;

There is a general sense of confusion with aspects of this provision amongst all users of the OIA. The following features of the constitutional convention ground in section 9(2)(f) seem to be particularly problematic:

(a)the reference to “constitutional conventions;”

(b)the mixed list of references to conventions, interests, and relationships in sub-paragraphs (i), (ii), (iii), and (iv); and

(c)the reference to “maintain.”

 

(a) Reference to “constitutional conventions"

Constitutional conventions make up a part of New Zealand’s constitution as much as the principles of the Treaty of Waitangi or the Constitution Act 1986. They are “customs, practices, maxims or precepts which are not enforced or recognised by the courts”.65 They have an important role to play in making our system of government work because they are seen as binding even though they are not of legal effect and thus not enforceable in the courts. However, constitutional conventions are not readily understood and even amongst constitutional lawyers their boundaries are open to debate. By their nature they are contestable and debatable. The reference to “constitutional conventions” therefore creates a problem for requesters and officials.

The section does make direct reference to two well recognised constitutional conventions which are key features of our Westminster style of government – the conventions of collective and individual ministerial responsibility. Even these have been strained by recent coalition agreements under MMP. Beyond those two conventions, there is a great deal of uncertainty about which other constitutional conventions the ground is intended to protect.

One feature of constitutional conventions is that they change over time. This is reflected in the wording of section 9(2)(f) which allows information to be withheld to protect constitutional conventions for the time being. Given their evolving nature there is no authoritative source of conventions in New Zealand. An official is required to second-guess prevailing norms and assess whether these constitute a convention that exists for the time being. There is little support for officials who are trying to apply statutory provisions in a politically charged environment.

(b) The nature of the interests involved

Of more concern is the mixed list of purposes and conventions contained in section 9(2)(f), a list that Eagles, Taggart and Liddell call “conceptually incoherent” and which introduces unnecessary complexities into the interpretation of the section.66

Contrary to popular belief, the section does not provide a list of constitutional conventions that are to be protected. Only one subparagraph ((f)(ii)) contains conventions as that term is generally understood. The other subparagraphs are the relationships or interests protected by certain constitutional conventions. For example, Eagles, Taggart and Liddell claim that (f)(iii) reflects a purpose (rather than a convention in its own right) and that (f)(iv) appears to elevate a practice of keeping confidential advice tendered by or to Ministers to the status of a convention.67

As currently drafted, an official is required to understand what the constitutional conventions are that protect these particular interests. A link must be identified between the listed interest and the convention that is being relied upon before a decision to withhold can be made. This scrambling of conventions and the interests they exist to protect creates confusion and obscurity, and undermines the effectiveness of the provision. We believe that, as far as possible, the interests or relationships to be protected should be explicitly and clearly stated in the Act.

(c) “Maintaining” a constitutional convention

After an official has identified a convention that protects one of the interests listed in section 9(2)(f), to successfully invoke the provision the official must go on to consider whether withholding is necessary to “maintain” the convention in question. This requirement introduces an unfortunate complication into the decision making process. It suggests that the withholding must be necessary to sustain the very life of the convention, as opposed to being able to rely upon it where release would merely lead to its breach or cause some detriment to it. This is a very high threshold. There is support for this in the Ombudsmen’s Guidelines:68

Maintenance of constitutional conventions does not require compliance in every case. Constitutional conventions can be breached on occasion without actually lapsing.

Eagles, Taggart and Liddell comment further:69

… it is in the very nature of a constitutional convention that it can be departed from ‘without necessarily impairing its effectiveness’.

It is asking much of officials to decide whether the release of information in a particular case would lead to a serious risk to the life of a constitutional convention.

Free and frank expression of opinion

Provisions to protect the free and frank expression of opinion exist in both Acts. Section 9(2)(g) of the OIA allows, subject to the public interest in release, information to be withheld if it is necessary to:70

(g) maintain the effective conduct of public affairs through—

(i) the free and frank expression of opinions by or 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; or

(ii) the protection of such Ministers, members of organisations, officers, and employers from improper pressure or harassment

The equivalent LGOIMA provision covers members or officers or employees of any local authority.71

The Ombudsmen’s Guidelines state that the purpose of these sections “is to avoid prejudice to the generation and expression of free and frank opinions which are necessary for good government.”72 In essence the provisions exist to thwart the chilling effect that openness can have on the expression of blunt or unfettered opinions communicated between Ministers and officials.

When deciding whether information can be withheld under this provision the Ombudsmen consider three questions:73

(a)How would disclosure of the information at issue inhibit the free and frank expression of opinions in future?

(b)How would the inhibition of such free and frank expression of opinions prejudice the effective conduct of public affairs?

(c)Why is this predicted prejudice so likely to occur that it is necessary to withhold the information in the circumstances of the particular case?

It is this ground, in particular, that raises questions about the appropriate balance between the public interest in disclosure of information and the need for information sometimes to be withheld. The Danks Committee explained the potential negative consequences that could flow from a transparency model that went too far:74

If the attempt to open processes of government inhibits the offering of blunt advice or effective consultation and arguments, the net result will be that the quality of decisions will suffer, as will the quality of the record. The processes of government could become less open and, perhaps, more arbitrary.

It goes on to say that if provision is not included to protect good government:75

The requirement of openness could be evaded, for example, by preparing and giving advice orally, or by maintaining parallel private filing systems; the record of how decisions are arrived at would be incomplete or inaccessible; public confidence could suffer, and if the relative roles and responsibilities of ministers and officials became the subject of public debate, mutual recriminations could all too often develop.

Nicola White’s research suggests that even with the “free and frank” ground, the OIA has had negative effects on the policy process in New Zealand. As noted above, this view was also taken by some submitters on our issues paper. It is also reflected in a recent empirical study in the United Kingdom.76

 

Some of the consequences White identified are that:77

  • blunt advice is offered less easily, and obfuscation and softer language are widely preferred;
  • wide-ranging advice is restricted, with written documentation tending to stick to the safe middle ground with more adventurous thoughts being tested in discussion;
  • if issues are delicate or difficult, they are dealt with orally;78
  • many people working at the centre or at sensitive levels of government work largely without creating records and, for example, will avoid e-mail completely because of lack of any assurance that their comments could be protected.

In the end, the question is one of balance. We believe the “free and frank” ground for withholding must remain in the Act for the reasons the Danks Committee gave. We have concerns that even with this ground being available some officials feel inhibited and are less free and frank than might be desirable. To some extent this caution seems inevitable. However, careful application of the “free and frank” ground and attention to the cases and Guidelines of the Ombudsmen should assist to keep things in proper balance. Training and guidance is also necessary. As discussed below, we also consider that the “free and frank” grounds would benefit from redrafting.

(a) Maintenance of the effective conduct of public affairs

The term “to maintain the effective conduct of public affairs” is not defined further in the Act. Eagles, Taggart and Liddell point out that after demonstrating that release would inhibit candid opinion making or result in undue harassment or pressure, officials must demonstrate that these proven detriments are so weighty or pervasive as to cause public affairs to be less effectively maintained.79 The degree to which this must occur is not stated on the face of the provision.

We have considered whether this terminology should be removed from the Act, but on reflection think there is reason to retain it. It makes it clear that it is not enough just that free and frank statements of opinion have been made: there must be the added factor that effective government would be prejudiced by their disclosure. The expression is narrower, and more closely confined than “public interest”, which would otherwise probably have to make an appearance in the provision.

(b) Scope

In our issues paper we queried the applicability of this ground to bodies outside the core of government.

Eagles, Taggart and Liddell make reference to the purpose of this provision – the maintenance of effective public affairs – and question what this means for agencies that fall outside core government or local government: SOEs, Crown research institutes and tertiary education institutions, for example.80 These grounds were drafted and enacted before the significant restructurings and reforms of the 1980s, which were not in the minds of the Danks Committee or the Acts’ drafters when the provisions were created.

No submitters argued for the exclusion of any of these agencies from the grounds. As noted in the submission of one Crown research institute, these agencies may be involved in advising government on sensitive matters and the grounds should therefore apply to them in the ordinary way. Given that all these bodies have relationships with Ministers, we consider that the good government grounds (and the OIA itself) should continue to apply.

(c) Advice versus opinion

Both Acts refer to “opinions” rather than “advice” in the free and frank ground. However, “advice” and “opinion” are sometimes used interchangeably, and at best the line between them is blurred.

The relevant provision in United Kingdom’s Freedom of Information Act 2000 covers both advice and opinion, so as to remove any distinction between the two:81

Information to which this section applies is exempt if … disclosure of the information

(b) would, or would be likely to, inhibit:

(i) the free and frank provision of advice, or

(ii) the free and frank exchange of views for the purposes of deliberation, or

(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

OIA, s 9(2)(f). There is no equivalent ground in LGOIMA.

AV Dicey Introduction to the Law of the Constitution (10th ed, Macmillan & Co Ltd, New York, 1962) at 417.

Ian Eagles, Michael Taggart and Grant Liddell Freedom of Information in New Zealand (Oxford University Press, Auckland, 1992) at 339.

At 339.

Office of the Ombudsmen Practice Guidelines – Official Information (Wellington, 2002) at Part B, ch 4.5 “Constitutional Conventions”.

Eagles, Taggart and Liddell, above n 66, at 364.

OIA, s 9(2)(g)(i).

LGOIMA, s 7(2)(f)(i).

Office of the Ombudsmen, above n 68, at Part B, ch 4.6 “Free and Frank Expression of Opinion”.

At 2-3.

Committee on Official Information Towards Open Government: General Report (Government Printer, Wellington, 1980) at [47].

At [48].

Peter Waller, R.M. Thomas, Duncan Simpson and Robert Hazell Understanding the Formulation and Development of Government Policy in the Context of FOI (The Constitution Unit, University College, London, 2009).

White, above n 63, at 271.

Even though this may contravene the spirit of the Public Records Act 2005.

Eagles, Taggart and Liddell, above n 66, at 367.

At 367.

Freedom of Information Act 2000 (UK), s 26(2)(b) and (c).