Chapter 4: Politically sensitive requests

A particular area of our review has been an examination of the issues that arise in relation to politically sensitive requests. Sensitivity may arise due to the nature of the material being requested (i.e. whether one of the withholding grounds protecting the interests of government applies), the nature of the requester (i.e. media or Opposition Party requests), or the nature of the decision-making process (i.e. whether the request requires a decision by or input from a Cabinet Minister).

Allocation of decision-making

The OIA contemplates dialogue between officials and ministers in relation to official information requests, as does official guidance for agencies.85 One purpose of this dialogue is for the proper processing of requests through adequate consideration of potential withholding grounds and assessment of the balance of the public interest. Requests may raise issues about the protection of government interests under the conclusive withholding grounds in section 6, or under certain section 9 withholding grounds such as the good government grounds, the confidentiality ground or grounds that protect the Crown’s commercial activities or negotiations.

Consultation between a department and its Minister may be appropriate so that the department can assess all relevant factors in reaching a decision on release. Requests made to a number of departments or Ministers may require consultation for co-ordination purposes,86 as may requests being handled by a department on behalf of its Minister.

Another purpose of departmental/ministerial communication is to keep a Minister informed of any particular request that may give rise to issues of interest or accountability, given that the Minister may be answerable to Parliament for matters disclosed by the release of the requested information. This is known as the “no surprises” doctrine.

The issue of decision making rules for Ministers and officials has been the subject of discussion since the very early days of the OIA. The allocation of decision-making was not altogether clear right at the outset of the legislation and it was anticipated that support mechanisms such as a code, or even an amendment to the Act might be needed.

The Danks Committee, summarising the rationale for what would become the “good government” withholding grounds, noted:87

To run the country effectively the government of the day needs nevertheless to be able to take advice and to deliberate on it, in private, and without fear of premature disclosure. 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….

A new and sharper definition of areas of responsibility at senior levels, and the development of new and perhaps more explicit codes governing the relationship between Ministers and officials might be required. The importance of careful adjustments in this area does point yet again to an evolutionary approach to openness.

A State Services Commission leaflet published before the OIA came into force commented on the effect of the OIA on the relationship between public servants and Ministers.88 It noted that the free and frank withholding ground articulates for the first time in statutory form some of the constitutional conventions that underlie the relationship between officials and Ministers, and that decisions about the release of information must be based on the new statutory criteria:

However, it would be both prudent and fair, in cases where the public servant considers the Minister would wish to be involved because of the significance of the matter, to refer it for decision by the Minister. Even so, the public servant must make a recommendation and that recommendation must be made in terms of the Act.

Therefore it may well be that, as a result of experience with the operation of the Act, in the future there might need to be a more precise definition of areas of responsibility at the senior level, and the development of new, and perhaps more explicit, codes governing the relationship between Ministers of the Crown and officials…

It is clear that the relationship must be handled with some sensitivity, and with a good understanding on both sides, if it is to work well; further, it requires a high degree of trust between the political arm and the administrative arm of Government.

The new Official Information Act builds on, but does not undermine, the basis of the relationship that exists between the two arms of Government…

A paper prepared for the Information Authority in 1984 addressed the relationship of the Minister and the department in this way:89

Should the Minister take part in the initial decision on the request for information? The answer is yes if the request is made to the Minister. But what if the request is made to the department or organisation? No doubt it can consult with its Minister about its proposed action when it thinks that appropriate. But can the Minister actually make the decision at that point? The legal position is not that clear. The Act itself indicates that it is the recipient that is to respond, but the general law relating to the relationship between Ministers and officials and some of the provisions of departmental statutes relating to that relationship require the permanent head and department to act under the direction and control of the Minister. It is not clear whether the latter provisions affect the Official Information Act. What should the answer be? In principle the department or organisation should make the decision: the system of the Act looks to a later voice for the Minister which should, if possible, not be compromised by an early decision. But what of the case of a request to a department for a Cabinet paper or a paper actually prepared by the Minister and held by the department? Should not the Minister (in the former case in consultation with members of the Cabinet) make the decision? I suggest that the answer is yes: the Minister should. That situation is already adequately dealt with by section 14 of the Act which provides for the prompt transfer of requests by a recipient to the Minister, department or organisation more closely connected with the function in issue. I accordingly recommend that the Act make it clear that only the body or person dealing with the request make the decision on it.

In 1987, the Official Information Amendment Bill replaced and expanded on section 15 by adding subsections (4) and (5) which provide for decision-making on requests made or transferred to departments, and for consultation on requests by departments. Introducing the Amendment Bill, Sir Geoffrey Palmer, then Minister of Justice stated:90

Clause 8 spells out that a Minister cannot make the initial decision on a request properly made to the Minister’s department. That avoids the possibility of prejudgment, and there have been examples of that. Of course, the Minister can still be consulted by the department; the Bill makes that clear.

Despite this clarification, there is on-going confusion as to the nature of departmental-ministerial dialogue and the extent of ministerial involvement in OIA decisions which are taken by departments. This relates to the circumstances in which a Minister may take primary responsibility for OIA decision-making from the department to whom the request was initially directed (by use of the transfer provision), and the extent to which the Minister may influence a department’s decision-making, whether formally by a ministerial direction or informally through the consultation process.

OIA, s 15(5), s 15A.

See for example, requests made to both the Minister of Finance and the Treasury: Office of the Ombudsman “Requests for Documents Concerning the Government’s Mixed Ownership Programme” (Ombudsmen reference 318858, 319224, 319684, 24 November 2011). See also Law Commission Review of the Official Information Act 1982 (NZLC R40, 1997) at 196–199.

Committee on Official Information Towards Open Government: General Report (Government Printer, Wellington, 1980) at 19–20.

State Services Commission “The Public Service and Ministers” (Management Leaflet No 6, June 1983).

Professor Ken Keith “Resolution of Disputes under the Official Information Act 1982” (Information Authority Occasional Paper No 1, 1984) at [3.2(1)]. Professor Keith was a member of the Danks Committee on Official Information that prepared the Danks Report: Committee on Official Information, above n 87.

(12 June 1986) 471 NZPD 2166.