Chapter 4: Politically sensitive requests

Discussion

Allocation of decision-making

1997 Law Commission review

One of the issues the Law Commission was asked to report on in 1997 was the appropriateness of the decision making rules for Ministers and officials set out in section 15(4) and 15(5) of the OIA.111 These provisions require the chief executive of a department, or an authorised officer, to make the decision (if the request is not transferred) and state that the decision maker may consult a Minister of the Crown or any other person over a proposed decision.

The Law Commission’s initial view was that both these provisions were incomplete and that they should either be repealed or, alternatively, be given wider application. In its report, the Law Commission concluded that section 15(4) should be repealed (as being unnecessary given the change to the veto provision), and that section 15(5) should be broadened to cover consultation by all agencies that are subject to the OIA.112 If there was any doubt about whether the transfer provision was wide enough to allow for transfers in this context, the Law Commission thought the legislation should be clarified.

The change to the veto provision in 1987 that put the power of veto of an Ombudsman’s recommendation in the hands of the Governor-General in Council rather than in the hands of individual Ministers,113 was seen as reducing concerns and difficulties about ministerial consultation. While the Law Commission noted the potential for conflict between an agency’s decision-making with the Minister’s power of direction, the transfer provision was seen as the relevant mechanism for resolving disputes, in accordance with the view at that time of the Ombudsmen and the advice contained in the Cabinet Office Manual.

Since the 1997 Law Commission report, the Cabinet Office Manual advice on transfers to Ministers has been revised,114 and the Ombudsmen take a stricter view of section 14 (the transfer provision).115 The legislative provisions themselves (section 15(4) and (5)), however, have not been altered since they were introduced in 1987.

Current review

There are tensions evident in the operation of the legislation as to how decision-making is allocated. One aspect of this is the multiplicity of accountabilities that potentially arise.

The concept of accountability arises in a variety of guises as officials process official information requests. Sir Geoffrey Palmer has noted that there is an ambiguity about the term “accountability” within Westminster systems of government:116

There is the political accountability of public servants to elected politicians. There is accountability of ministers to Parliament. There is accountability to the law. There is accountability to the general public in the sense that decisions have to be explained and defended. But whatever form of accountability is being discussed, it cannot be effective without information.

Promoting the accountability of Ministers and officials, in order to enhance respect for the law and to promote good government, is an express purpose of the OIA.117 Improved accountability is therefore a direct goal of the legislation. However, furthering that goal can raise difficult related issues for officials and Ministers. Generally, departmental officials are accountable to their Minister, who in turn is accountable to Parliament.

The Danks Committee assumed that a delegation of authority from the government to officials would be the mechanism used to allocate decision making:118

One basic point needs to be made at the outset. Responsibility for administering the proposed legislation rests primarily on the Government as such, rather than on its individual officers. The principle that official information should be made available to the public unless there is good reason to withhold it should guide officials at every level, as well as Ministers, and the decision whether any given information should be released or withheld should be based on it. This decision is, however, one for the Government to take, not the individual officer. Authority to decide will no doubt be delegated to permanent heads, who will in turn need to delegate it to officials at lower levels. As we have noted in our General Report, these may often be the people who have functional responsibility for the area in question. But whatever the level at which the actual decision is taken, it must be duly authorised, and the officer taking it will be accountable for his actions.

However, the addition of section 15(4) in 1987 instead gave statutory authority to heads of departments and their authorised officers and employees.

Guidance from the State Services Commission confirms the powers of Ministers to issue directions to their departments:119

There is a close and hierarchical relationship between Ministers and departments, with the governance arrangements centred on a direct Minister-chief executive relationship. Ministers have extensive powers to direct departments, as long as such directions are consistent with the law (e.g. there are relatively numerous statutory requirements for officials to act independently in some matters – which can be quite significant).

An important question is whether the OIA is one of these statutory provisions that requires officials to act independently of ministerial direction. The Act is not entirely clear about this, despite the 1987 amendment to section 15, but there are a number of factors which indicate that there is a separation of responsibility between department and Minister:120

(a)The State Sector Act 1988 introduced the notion of separate spheres of responsibility of ministers and chief executives and of independent departmental control rather than a unified public service;121

(b)Section 15(4) of the OIA provides that decisions on requests made to a department are to be made by the chief executive of the department, or an authorised officer or employee, unless the request is transferred to another department, organisation or to a Minister;

(c)Section 15(5) of the OIA expressly confirms that a chief executive, employee or officer of a department may consult with a Minister of the Crown in relation to the decision that the chief executive, employee or officer proposes to make on any request received;

(d)The Cabinet Manual confirms that a department should advise its Minister of the release of particularly sensitive or potentially controversial information, although the decision to release should be made by the department “in accordance with the OIA”;

(e)The OIA includes an express mechanism for the transfer of requests from department to Minister and vice versa on fairly limited grounds and the Cabinet Manual confirms where there is a difference of views about release, a transfer can be considered if the section 14 requirements can be met [emphasis added];

(f)As noted above, practices that involve referring all OIA requests, or particular types of requests, such as media requests to the Minister’s Office, have met with disapproval from oversight agencies such as the State Sector Standards Board and the Ombudsmen.

One view is that it is appropriate for Ministers, who are accountable to Parliament, to take the final decision on contentious matters. However, there are strong policy reasons for departmental OIA decision-making not to be subject to ministerial direction, such as to reduce the perception of political influence in the outcome and potential conflicts of interest, as well as greater process efficiency.

A risk with departmental decision-making on contentious matters is whether this will always achieve a full and proper assessment of governmental interests as reflected in the relevant withholding grounds; however other available mechanisms for addressing this risk are ministerial consultation (to ensure that these grounds are fully considered) and use of the transfer provision where it applies to transfer requests to the Minister. Clarification of the withholding grounds themselves would also assist to alleviate this risk. Nevertheless, it may be unrealistic to strive to completely remove all political tension from the operation of the legislation:122

Freedom of Information never settles down. In terms of bureaucratic routine and a body of case law FOI does begin to settle down after the early years. But at a wider political level it never does. White’s study shows the strong tensions still evident in New Zealand after 25 years, especially around politically sensitive requests. In all systems there have been periodic reviews, reflecting continuing political discomfort with the legislation…There is permanent institutionalised tension built into the system. It provides a set of rules for regulating an inherently conflictual game.

The transfer provision

The transfer provision is the mechanism by which responsibility for decision-making under the OIA can be shifted. However the OIA limits transfers to cases where the information is more closely connected with the functions of another entity, in this context the Minister. Whether a request is better dealt with by the Minister or the department, on the basis of connection to functions, is not a clear-cut decision. As White notes:123

[the minister and the department] are alter egos of each other in substantive terms, and for many aspects of state sector administration and constitutional relationships they are indistinguishable.

This makes it difficult to say that the request is more closely connected with either the department or the Minister, and transfer may therefore not be a legitimate option.

An earlier iteration of the Cabinet Manual suggested that where a Minister takes the view that the information should not be released but the department believes it should, then transfer of the request to the Minister is the only way in which the department can meet its constitutional duty to follow ministerial direction and the obligation to comply with the OIA.124

However this provision was amended in the 2008 Cabinet Manual, and we believe it now reflects the requirements of the legislation, making clear that transfers should only be made to Ministerial Offices if the requirements of section 14 of the Act are satisfied. It says that:125

On being consulted, the Minister may take the view that information, which the department considers should be released, should not be released. In such a case, transferring the request to the Minister may be an appropriate way forward, if the requirements of section 14 of the Official Information Act 1982 can be satisfied. Each case of this kind needs to be carefully handled at a senior level within the department, with reference to the Minister if necessary. [emphasis added].

The Ombudsmen have made it clear that requests may only be transferred on the grounds set out in section 14. The Ombudsmen have assessed a blanket policy to transfer all media requests to the Minister as not justifiable.126 The Ombudsmen also disapproved of a blanket policy to transfer all requests on a particular matter to the Minister.127

In another decision, the Ombudsmen upheld the transfer by the Ministry of Justice of a request for information sought in relation to the Civil Union Bill as being more closely connected with the functions of the Associate Minister.128 Considering the SSC guidance on the relationship between the Public Service and Ministers, the Ombudsmen said:

This suggested to the Ombudsman that information related to “policy decisions” was more closely connected to the functions of a Minister whereas information related to “policy advice and implementation” was more closely connected to the functions of a Department. However, whilst in theory the division appeared clear, the Ombudsman acknowledged that in practice the distinction may be more difficult to draw. In general terms, the Ombudsman accepted that a recipient of a request should transfer that request to a Minister if the information relates to the Minister’s (or Cabinet’s) decision-making function, and release of the information could prejudice the Minister’s ability to perform that function. Where no possible prejudice to a Minister’s decision-making function could result, the recipient of the request should be responsible for deciding it.

Some of the difficulties in relation to the limits around transfers to Ministers could be alleviated through clearer drafting of the good government withholding grounds. In chapter 3 we recommend that one of the good government withholding grounds should better protect the ability of Ministers properly to consider advice tendered.129 In our view, this would provide clearer grounds for the protection of advice from premature release, which may reduce reliance on the transfer mechanism to try to achieve appropriate protection.

Consultation or notification

Currently, guidance about ministerial consultation is spread across a number of documents and is not always consistent. One issue that is not altogether clear is when a department must consult its Minister before releasing information, or when it must notify the Minister prior to release. The OIA simply says that nothing prevents a department consulting with a Minister or anyone else. As one of Nicola White’s interview subjects noted:130

I don’t see a problem with ministers knowing what’s being released. I do have a problem with ministers saying what can be released. That’s a different thing altogether.

A journalist speaking to Nicola White put it this way:

Most of the time I believe that if the department refers a decision up to the minister although they might be allowed, the effect will be to undermine the Official Information Act doing its work properly. Most of the time there are probably a small number of cases where a minister is actually involved in the information where maybe you could make a case that [it] is reasonable and just that they have a say. But as soon as you put it up to the minister’s office the priorities – are not those of the Official Information Act and that’s where it’s just so murky. It’s difficult.

The State Services Commission guidance for State servants on the Code of Conduct specifically addresses the need to keep Ministers informed about sensitive official information requests, while balancing the information needs of the public:131

The availability of official information has become a foundation of our democracy. We must recognise the importance of giving effect to our organisation’s procedures when responding to information requests, and be alert to the interest that our Minister also has in information held by our organisation. When we receive requests to release politically sensitive information, we must notify our Minister well in advance of any release….

We must appreciate the importance of a well-informed electorate at the time of a general election and our responsibility for facilitating speedy responses to information requests. We must not delay responding to information requests in the lead-up to an election, in a misguided sense of obligation to our Minister.

 

The guidance also discusses the “no surprises” principle:132

We are expected to advise Ministers in advance of circumstances likely to impinge on the Government’s responsibilities, any major strategic initiatives, and issues that may attract public interest or political comment.

A “no surprises” way of working does not interfere with an organisation’s independent decision-making role or its operational responsibilities, but reflects the part all organisations play in executive government.

The Cabinet Manual clearly signals that there is a distinction between notification and consultation:133

The style of relationship and frequency of contact between Minister and department will develop according to the Minister’s personal preference. The following guidance may be helpful.

(a)In their relationship with Ministers, officials should be guided by a “no surprises” principle. They should inform Ministers promptly of matters of significance within their portfolio responsibilities, particularly where these matters may be controversial or may become the subject of public debate.

(b)A chief executive should exercise judgement when deciding whether to inform a Minister of any matter for which the chief executive has statutory responsibility. Generally a briefing of this kind is provided for the Minister’s information only, although occasionally the Minister’s views may be a relevant factor for the chief executive to take into account. In all cases, the chief executive should ensure that the Minister knows why the matter is being raised, and both the Minister and the chief executive should act to maintain the independence of the chief executive’s decision-making process.

(c)It would clearly be improper for Ministers to instruct their departments to act in an unlawful manner. Ministers should take care to ensure that their actions could not be construed as improper intervention in administrative, financial, operational, or contractual decisions that are the responsibility of the chief executive.

Specifically on the OIA, the Cabinet Manual requires a department to:134

(a)consult its Minister in relation to the release of Cabinet material, because this material relates to his or her activities as a Minister;135 and

(b)advise its Minister if it intends to release any information that is particularly sensitive or potentially controversial, although the response decision should be made by the department “in accordance with the Official Information Act.”

Another State Services Commission guidance document suggests rather broader consultation provisions:136

It would be appropriate for departments to consult their Minister when:

·requests are received from the Opposition, the Opposition Research Unit, recognised interest groups or the news media especially where the information is particularly sensitive;

·the subject matter is controversial and likely to lead to questions to Ministers;

·facts, opinions or recommendations in the information are especially quotable or unexpected;

·the information reveals important differences of opinion among Ministers or agencies.

The Ombudsmen’s guidance encourages consultation as a matter of best practice where agencies deliberate on whether one or more of the withholding grounds may apply to protect information from release, but does not specifically address practices of departmental-ministerial consultation.

In our assessment, guidance about departmental-ministerial consultation and notification is not altogether clear and would benefit from clarification and further development, including reference to decisions of the Ombudsmen that discuss the nature of consultation. Commentary on this topic that discusses and links the various guidance material would also be useful.

OIA, s 15(4) and (5) were inserted by the Official Information Amendment Act 1987, in response to concerns that Ministers were improperly directing departmental officials on requests and that such a direction went beyond appropriate consultation; see Ian Eagles, Michael Taggart and Grant Liddell Freedom of Information in New Zealand (Oxford University Press, Auckland, 1992) at 79 [n 65].

Law Commission, above n 86, at [205].

Official Information Amendment Act 1987, s 18 (replacing OIA, s 32).

Cabinet Office Cabinet Manual (Department of the Prime Minister and Cabinet, Wellington, 2008) at [8.42].

The transfer provision is further discussed at [4.44] below.

Palmer, above n 91, at 32.

OIA, s 4(a). The equivalent provision in the LGOIMA, s 4(a) is to promote the accountability of local authority members and officials.

Committee on Official Information Towards Open Government: Supplementary Report (Government Printer, Wellington, 1981) at 28. The delegation approach is used in Canada under section 73 of the Access to Information Act. See Treasury Board of Canada Policies for Ministers’ Offices (2011) at 61. Issues with political scrutiny of information requests are discussed in Stanley L. Tromp Fallen Behind: Canada’s Access to Information Act in the World Context (2008) at 209–211. See also Ken Kernaghan, “Ministerial Responsibility: Interpretations, Implications and Information Access” (Access to Information Review Task Force, 2001).

State Services Commission “Reviewing the Machinery of Government” (2007) at 13.

See White, above n 94, at 265, noting that the Act sees the Minister and department as different, and places separate decision-making responsibility on each of them.

At 154. See also Eagles, Taggart and Liddell, above n 111, at 79, n 66.

Robert Hazell, Ben Worthy and Mark Glover The Impact of the Freedom of Information Act on Central Government in the UK: Does FOI Work? (Palgrave Macmillan, Basingstoke, 2010) at 259.

At 265. See also 150.

Cabinet Office Cabinet Manual (Department of the Prime Minister and Cabinet, Wellington, 2001) at [6.34].

Cabinet Manual, above n 114, at [8.42].

Office of the Ombudsmen Report of the Ombudsmen for the Year Ended 30 June 2004 (Wellington, June 2004), at 28.

Office of the Ombudsmen Case Notes (14th Compendium, 2007) at 172–174.

At 167–170.

See chapter 3 at [3.71], ground (v).

White, above n 94, at 151.

State Services Commission “Understanding the Code of Conduct – Guidance for State Servants” (2007) at 21.

At 16.

Cabinet Manual, above n 114, at [3.16].

At [8.41].

However, see White, above n 94, at 154, noting that the release of Cabinet decisions by chief executives on their own authority has become so normalised that some question whether it is appropriate for a Minister to be involved in a decision to release a Cabinet paper.

State Services Commission “Release of Official Information: Guidelines for Co-ordination” (October 2000, last updated 4 August 2002), available at <www.ssc.govt.nz>.