Chapter 4: Politically sensitive requests

Recommendations for reform

We have examined a number of available options for addressing the problems that have arisen in relation to sensitive political requests.

Protocols

We have considered Nicola White’s call for specific protocols between departments and ministers as to areas of engagement on OIA issues but do not make recommendations about the use of such protocols across government in this report. This does not restrict agencies and Ministers adopting protocols of this kind where they find them to be useful. Where they are used, we recommend that they should be published by the agency concerned to ensure transparency.

Our preferred approach and priority for reform however is the range of measures outlined below and in the preceding chapter. Nevertheless, if significant difficulties remain, following the implementation of the measures we recommend, consideration could be given to the systematic use of protocols in a future review.

Legislative change

We have considered whether any legislative change is warranted. In particular we have examined the approach in Australia to the allocation of decision-making between officials and Ministers.

The New South Wales Act contains a provision that an agency is not subject to the direction or control of any Minister in the exercise of the agency’s functions in dealing with a particular request.137 It creates offences for making a decision known to be contrary to the Act, directing an official to make a decision known not to be permitted or required by the Act, and improperly influencing a decision.138 This approach must be assessed however in light of the conclusive withholding grounds in the New South Wales Act for “Cabinet information” and “Executive Council information.”139 These provide a list of specific rules about classes of documents that qualify for conclusive protection from release and thereby reduce the level of contestability about release decisions in relation to sensitive government information. This is a structural difference to New Zealand’s case by case approach.

We have also examined Australian provisions, both at Commonwealth and State level, which attempt to define the information in the domain of an agency, and the information in the domain of the Minister, for the purpose of processing information requests. “Documents of a Minister” are defined to include documents relating to the affairs of an agency while excluding any documents in the category of “documents of an agency.”140 The provisions do not, in our view, provide much greater clarity, and the Australian Acts are not consistent on whether a Minister may assume responsibility for a request made to an agency.141

On balance our conclusion is that the OIA’s decision-making framework is sound and that legislative change is not necessary.

We do however recommend a minor amendment to the OIA’s transfer provision. While we do not support any broadening of the provision to expand the grounds on which requests may be transferred to Ministers, we believe that the wording of the transfer provision could be clearer. While section 15(4) clearly contemplates transfers by departments to a Minister and is generally treated as permitting such transfers, one reading of section 14 suggests that a department may only transfer to another department and a Minister may only transfer to another Minister.142 The wording of the transfer provision in the LGOIMA is preferable in this respect.143

Guidance

In our consultation with central agencies, the development of guidance was preferred to legislative change as it would retain flexibility and a case-by-case approach to individual requests.

We consider that guidance is critical in three respects. First, the current guidance about transfers of requests to a Minister should be reviewed, clarified and further developed to provide agencies with a clearer sense of when information is more closely connected to the functions of the Minister.

Secondly, there is room for clarification and development of guidance about consultation with Ministers and notification under the “no surprises” doctrine. We recommend that guidance in both cases be developed by a working party including the official information oversight office we discuss in chapter 13, the State Services Commission, the Ombudsmen and the Department of the Prime Minister and Cabinet, including the Cabinet Office.

Thirdly, more developed guidance is needed about the application of the withholding grounds and the public interest test, with case examples from the decisions of the Ombudsmen. In particular, developed guidance about the good government grounds (as reformed in line with our recommendations in chapter 3) should address uncertainty about their scope and application.

Transfer

We recommend that the State Services Commission Guidelines for Co-ordination be reviewed, clarified and further developed in relation to transfers of requests to Ministers. The current guidelines suggest that a transfer may be appropriate after consultation where a request is received from the Opposition, Opposition Research Unit or recognised interest group. In our view this is an overly broad view of the transfer provision as it suggests that transfers should be made on the basis of the nature of the requester, rather than on the basis of the nature of the material requested. The Guidelines should be revised.

Guidance about the fundamental question of when information is more closely related to the functions of a department or Minister would also be useful. While this may be difficult to pin down, the use of examples with reference to decisions of the Ombudsmen would be helpful. Two factors which might be influential in this regard are (i) authorship, so that decisions on release of information written by the Minister or in the Minister’s name, such as Cabinet documents, are made at the ministerial level, and (ii) the extent to which the information relates to the Minister’s decision-making function.

As noted above, we think that a working party of relevant central agencies should be convened to develop and update this guidance.

Consultation and notification

Currently there is conflict in the guidance about the extent to which interaction with ministerial offices should take the form of consultation or notification. Consultation implies ministerial input into the decision-making process in a way that notification does not, although even notification may prompt a conflicting exchange of views on a proposed decision in response to a request.

The State Services Commission Guidelines for Co-ordination suggest a greater level of consultation than may strictly be necessary and the distinction between consultation and notification should be made clearer. We also note that section 15(5) of the OIA creates a broad discretion for agencies to consult on any decision they propose to make, including with Ministers. The absence of criteria in the provision or in guidance raises the risk of more frequent or routine consultation with ministerial offices than may be warranted.

We recommend that existing guidelines about consultation between departments and ministerial offices should be reviewed and clarified as to the circumstances in which consultation is desirable, while confirming that it may be appropriate to keep Ministers informed about responses to requests through notification. The guidance should take account of applicable case law that discusses the nature and objectives of consultation.144

For example consultation should be undertaken:

(a)where there are potential grounds for transfer to the Minister, given the nature of the information requested; or

(b)where there is a level of shared responsibility for the information requested, or to co-ordinate a cross-government request; or

(c)where government interests are at stake that may properly give rise to protection of the information under one or more of the withholding grounds (such as the free and frank withholding ground).

Prior notification of a release decision may be required in any particular case in observance of the “no surprises” principle.

Further development of administrative guidance

One of the central conclusions to Nicola White’s work is that more rules should be introduced into the OIA system, particularly to deal with the political-administrative interface. In her view, this is an area where the flexibility of the case by case system needs to be balanced with clearer rules or guidelines to produce greater certainty and reduce uncertainty and dissatisfaction. White’s preferred approach is that the Ombudsmen develop a more overt system of precedent from its decisions, with the State Services Commission assuming administrative responsibility for developing rules and guidelines that draw on decisions of the Ombudsmen

In chapter 2 we reach a similar conclusion where we recommend a 3-prong solution to the present problem of uncertainty in the case-by-case approach for the application of difficult withholding grounds that includes more accessible case-notes, more fully developed guidelines and a commentary analysing the case-notes.145

We think that this approach will be of particular benefit in relation to the operation of the good government withholding grounds. We discuss difficulties with the good government grounds in chapter 3 and recommend redrafting of these grounds. It is also clear that guidance about the grounds is vital and we recommend that the Ombudsmen’s cases should be analysed and a summary provided to indicate to agencies the circumstances in which they will provide protection. Such guidance is also likely to be useful to requesters as well in indicating how the withholding grounds may apply in any particular case.

Guidance might refer to decisions where sensitive information was withheld under the good government grounds, such as in the following examples:146

(a)The recent asset sales decision (balancing voters’ rights to be informed against the risk of harm to the development of assets sales policy from disclosure);147

(b)The protection of material generated by the Treasury for purposes of the budget process;148

(c)The protection of material within the Department of the Prime Minister and Cabinet relating to a Special Committee on Nuclear Propulsion;149

(d)The protection of confidential ministerial briefings to industry sector groups;150

(e)The protection of communications between the Minister of Finance and the Reserve Bank regarding economic growth, monetary policy and inflation outlook;151

(f)The protection of Cabinet discussions regarding a policy announcement about Television New Zealand;152

(g)The protection of Treasury advice on social assistance policy;153

(h)The protection of draft answers to Parliamentary questions prepared by the Department of the Prime Minister and Cabinet for the Prime Minister;154

(i)The protection of advice to the government regarding its election promise as to the pre-funding of New Zealand superannuation;155

(j)The protection of drafts of Treasury’s 2005 briefing to the incoming Government (the final briefing being downloadable from the Treasury’s website).156

These can be compared with decisions recommending release of sensitive information sought such as:

(a)Electricity Corporation (ECNZ) pricing information presented to Cabinet (strong public interest factors favouring disclosure);157

(b)Police review on the importation of firearms (principle of public safety required greatest possible transparency);158

(c)Treasury report to Cabinet on producer board reform (protection did not continue to apply at particular stage of policy process, and presence of a public interest in accountability);159

(d)Release of names of eminent New Zealanders consulted in the preparation of the Intelligence and Security Agencies Bill (but not views expressed);160

(e)Release of draft Cabinet Paper (already released in error);161

(f)Information relating to policy being debated between government coalition partners (information not characteristic of free and frank expression of opinion, and did not contain opinion or recommendations).162

In chapter 3 we recommend guidance on other grounds which potentially protect government interests should also be developed with reference to the Ombudsmen’s decisions, such as the confidentiality ground, and the ground protecting government negotiations.

Strategy and the goal of increased participation

The official information legislation produced a dramatic cultural shift within government and the public service as much as a legal reform. The presumption of openness and availability of official information has fundamentally changed the way officials share information with the public.

In reviewing the legislation, it is worth asking what further changes might be needed to the culture and mind-set of those operating the legislation in order to achieve its aims, and how these might be encouraged. In chapter 12 we examine approaches to proactive disclosure of information and the change of mind-set that may be needed to achieve greater openness in official information.

Another theme that may be worthy of further consideration in the political context is the goal of citizen participation in government processes. This is an express purpose of the Acts. We see the encouragement of further cultural change as a means of progress towards the goal of the legislation as an important element of any reform package.

In 2001, Sir Brian Elwood who was at that time the Chief Ombudsmen, in a speech about the culture of the official information legislation, noted that the application of the OIA has focussed more on the accountability of ministers and officials than it has on the effective participation in the making and administration of laws and policies.163

In fact, what is of more long term significance and benefit to New Zealanders is the ability to participate in the making and administration of laws and policies by being empowered with the ability to gain access to official information and provide an informed basis for alternative advice to the decision makers within the governmental system, independently of the advice available through official channels…

The area of greatest opportunity for extending the openness of our system of government lies in increasing accessibility to advice about issues of significant public policy or programmes prior to decisions being made so that one of the purposes of the Official Information Act (participation by New Zealanders in the making of laws and policies) can be better achieved.

Information management planning

Some of the difficulties arising in relation to requests for information on sensitive topics or at sensitive points in the policy development cycle could be managed by formulating an information management plan as a component of the policy development process. This would plan the way in which release and withholding will be managed at various stages.164 Addressing the goals and purposes of the OIA proactively in this way may ease the processing of sensitive requests when they arise.

Marie Shroff, former Secretary to the Cabinet, describes this interaction between the OIA and political processes:165

Where the government is developing a politically sensitive policy, it will now try to structure and manage an overall process for developing the issue. Consultation stages, discussion with industry groups, and in some cases separate taskforces are becoming increasingly common. This dissemination of information to interested recipients throughout the policy process can contribute significantly both to the quality and to public acceptance of government policy…

Timing the release of information may also be vital from a management perspective when reacting to a difficult political situation that has arisen. The Act has the desirable effect of encouraging Ministers to consider releasing the relevant documents about a sensitive issue before receiving an Official Information Act request.

Designing and planning a policy process with the OIA’s legislative framework in mind is likely to lead to better outcomes both for the protection of information as may be necessary for good government, and for the progressive availability of information, once the need for protection has diminished or passed. Policy design that includes and anticipates appropriate accountability and participatory features; and scopes the limits of the period during which policy proposals should be embargoed, can also be expected to improve the strength of the case for a reasonable period of protection of sensitive advice under the good government grounds.

Protection in accordance with the withholding grounds would turn on the particular circumstances of any request and the balance of the public interest. Decisions on release or withholding cannot be prejudged. Nevertheless, for large and complex projects in particular, having an information management plan for the release of information as the work develops is likely to provide guidance for officials and Ministers on responding to information requests as they are received.

Such a strategic approach may help to generate a clearer understanding of expectations between officials and Ministers, greater certainty as to how the goals of accountability and participation will be met as a policy process unfolds, and the extent to which information can be expected to be protected or shared at various points in the process. It would also lead to processing advantages as an information management plan would anticipate appropriate withholding grounds and their applicability, leading to reduced time in assessment as requests are received, although responses would need case by case assessment and could not be automated. It would fit with the strategic approach we recommend in chapter 12 to the increasing use of proactive disclosure.

Further, such a strategic approach could contribute to a more optimal balancing of the goals of the OIA and the protection of sensitive information. Ideally, sensitive information would continue to receive the protection that is needed over any critical period so that prejudice to government processes is avoided, without overlooking fundamental issues of government accountability and citizen participation that are enshrined in the OIA. The cost of failing to provide adequate protection for information at key points in the policy process is starkly described by Nicola White: a dilution in the quality and frankness of advice, and a dilution of the public record with less being committed to writing.166 The challenge therefore is tailoring each policy process in order to reach an appropriate balance between openness and reticence, with a view to generating the best possible policy advice to inform government decision-making.

Take-up of this approach would also continue the culture shift towards greater openness. Focussing on the core purposes of the OIA at the front-end of the process could be expected to increase citizen opportunities for participation, in the manner envisaged by former Ombudsman, Sir Brian Elwood. The development of guidance in this area by the working party of central agencies we recommend above would be desirable.

R10Any protocol between an agency and a Minister in relation to engagement on official information matters should be published on the agency’s website.

R11As a drafting matter, section 14 of the OIA should follow section 12 of the LGOIMA to remove any technical ambiguity about transfers between Ministers and departments and vice versa.

R12No further statutory provisions about transfers to Ministers should be introduced, but existing guidelines about transfers of requests to Ministers should be reviewed, clarified and further developed by a working party of central agencies including the State Services Commission, the Ombudsmen, the Department of the Prime Minister and Cabinet including the Cabinet Office, and the oversight office.

R13Existing guidelines about consultation between departments and ministerial offices should be clarified and developed by the working party, in particular clarifying the distinction between consultation and notification and the circumstances in which each is appropriate.

R14Guidance for agencies on how an information management strategy can be used to plan the way in which release and withholding will be managed at various stages of the policy development process would be desirable.

Government Information (Public Access) Act 2009 (NSW), s 9(2).

Ss 116–118.

Schedule 1, clauses 2–3.

Freedom of Information Act 1982 (Cth), s 4; Freedom of Information Act 1989 (ACT), Dictionary; Freedom of Information Act 1982 (Vic), s 5; Right to Information Act 2009 (Tas), s 5; Right to Information Act 2009 (Qld), ss 12, 13; Freedom of Information Act 1992 (WA), Glossary, s 4; Freedom of Information Act 1991 (SA), s 4(3), s 4(4).

Freedom of Information Act 1982 (Cth), s 23. See also Freedom of Information Act 1989 (ACT), s 22; Freedom of Information Act 1982 (Vic), s 26; Right to Information Act 2009 (Tas), s 21; Freedom of Information Act 1992 (WA), s 13.

See use of the word “other” in section 14.

LGOIMA, s 12: “transfer the request to the other local authority or the appropriate Department, Minister of the Crown, or organisation”.

Wellington Airport Ltd v Air New Zealand Ltd [1993] 1 NZLR 671 (CA) is the leading authority. See also a useful summary of the principles in Julian v Air New Zealand Ltd [1994] 2 ERNZ 612, 637–638.

Chapter 2, R2, R3, R4.

For further examples see Taylor and Roth, above n 92, at 133–134.

Office of the Ombudsman, above n 86.

Office of the Ombudsmen Case Notes (10th Compendium, Vol 2, 1992) at 54–48.

At 48–50.

At 36–39.

Office of the Ombudsmen Case Notes (11th Compendium, 1998) at 92–93.

Office of the Ombudsmen Case Notes (12th Compendium, 2001) at 145–147.

Office of the Ombudsmen Case Notes (13th Compendium, 2003) at 90–91.

At 88–90.

At 85–56.

Donnelly, above n 98.

Office of the Ombudsmen Case Notes (10th Compendium, Vol 2, 1992) at 51–54.

At 43–45.

At 33–36.

Office of the Ombudsmen Case Notes (11th Compendium, 1998) at 97–99.

Office of the Ombudsmen Case Notes (13th Compendium, 2003) at 87–88.

At 83–85.

Sir Brian Elwood “The Need for an Official Information Culture” (address to the Institute for International Research Public Law Conference, Wellington, 2001).

For a categorisation of the stages of the policy process, see The Treasury “Reorganisation of Appropriations for Policy Advice: A Guide for Departments” (2011).

Marie Shroff “Behind the Official Information Act: Politics, Power and Procedure” in The Official Information Act: papers presented at a seminar held by the Legal Research Foundation and the New Zealand Institute of Public Law (1997).

White, above n 94, at 231.