Chapter 4: Politically sensitive requests


The problems

The lack of clarity about decision-making has given rise to problems in practice. The problems appear to fall into three areas:

(a)a perception amongst requesters of political interference in the handling of sensitive requests where there is consultation with or transfer of the request to a Minister’s office;

(b)a lack of trust at ministerial level that officials will properly apply the relevant withholding grounds that are designed to protect governmental interests (the good government grounds, in particular); and

(c)confusion as to the basis and proper procedures for departmental-Ministerial interactions in relation to OIA requests, potentially undermining departmental-Ministerial relationships.

All three types of problem share a common theme: a degree of suspicion and mistrust amongst OIA participants in relation to requests that have a sensitive political aspect.

Former Law Commission President Sir Geoffrey Palmer has noted that doubts and suspicions in the handling of sensitive requests, even if anecdotal rather than empirical, are a serious matter:91

The aim of the Act is not just open government, but surely that it should be clearly and observably open. Both openness and the appearance of openness are necessary for requesters and the wider public to be confident that the principle of open government is actually operating.

Examining problems for requesters, Steven Price’s interviews suggested that, in practice, there are two processing tracks: the first is the set of rules that apply to straightforward requests – these comprise the bulk of requests and usually proceed well within the 20 working day time limit, with little or no information withheld, and no charge. The second track however, is the set of rules that apply to difficult or politically sensitive requests – often from journalists or opposition MPs, which take much longer to process, and are more likely to be transferred to the minister’s office, sometimes with questionable or no justification. Many of these requests are refused or more information is withheld than is necessary under the Act’s criteria and many agencies deferred to the wishes of their ministers rather than taking the decisions themselves.92

This is confirmed by Rick Snell, an Australian academic who has studied comparative approaches to freedom of information processes. Snell found that requests for politically sensitive information attract more attention from government information managers, thereby creating less chance that the information will be released, and thus implicitly recognising the existence of information management within political affairs.93

From the ministerial perspective, Nicola White identified a degree of mistrust about the use of the good government grounds by officials to protect sensitive information.94 The issue here is that there is room for genuine disagreement about the application of these withholding grounds, both on grounds of vagueness95 but also because officials may bring a narrower view to the good government grounds, being at a further remove from government than Ministers. The good government grounds inevitably have a political component to them, which Ministers may view differently to officials. The political aspects can be heightened in relation to requests from political parties.

For agencies, the application of the good government withholding grounds in particular, is by no means straightforward. They are acknowledged to be the most difficult of all the grounds for withholding official information.96 We discuss some of the difficulties with the drafting of these grounds in chapter 3. But these grounds are also different in nature to some of the other withholding grounds. Reliance on them has the potential to be idiosyncratic, highly context-specific and temporal, compared to reliance on other withholding grounds, adding complexity to whether they apply in any particular circumstances. While some sensitive policy development processes are run or assumed to be operating in a closed manner, in reliance on the operation of the good government withholding grounds, some are deliberately run in an open manner with disclosure of policy development papers along the way. The information management of policy development is essentially a political decision, although it may be developed collaboratively between department and Minister, or with departmental advice.97

The Ombudsmen have sometimes taken the opportunity, as circumstances allow, to recommend proactive approaches to the release of information where accountability, transparency and participation require an organised and orderly release of information to the public, and where individual requests could be affected by political sensitivities.98 The time at which information is requested can also be crucial – the good government grounds may only protect information for a temporary period, for example to allow for a policy development phase, and will not provide on-going protection once that period has passed.99

Another issue is a tension between the goal of increasing public participation (highlighted in the purpose section of the Act) and the protection of government processes in the withholding grounds. These must be balanced by applying the public interest test. Decisions of the Ombudsmen indicate that the availability or lack of other accountability measures or opportunities for participation may swing the balance in any particular case.

Nicola White concluded that the protection afforded by the good government grounds is perceived by officials as difficult to achieve, given the process involved. The decisions of the Ombudsmen are case specific and do not necessarily provide certainty about the grounds for protection in a generic manner:100

Without any clear sense of where the limits were, there was no particular comfort about what information could be protected and when, and therefore people adopted preventative strategies to avoid risk. Such strategies might include limiting the amount on paper at the most sensitive end of the system, and trying to change the way papers were written across the public service more generally. Arguing issues through fully with the Ombudsmen took too much time and energy, and could in itself become political fodder.

On issues of process, Nicola White’s research also found that issues of consultation with ministerial offices and the transfer of requests to Ministers can be problematic.101 She notes that there is considerable uncertainty about the relevant principles or rules that should guide behaviour, that the lack of clearly stated norms or conventions is a problem and that this is the most obvious area where suspicion and distrust about the OIA is growing. In her view this highlights the broader challenge of administering the OIA in a neutral manner while in a political environment.

White’s research showed that some agencies are required to run all requests past the Minister’s office before responding or are expected to advise the minister’s office before contacting an opposition MP on OIA requests. Another practice she found is for the Minister’s office to receive weekly lists of requests so that requests of potential interest to the Minister can be identified.

Some agencies responding to our survey confirmed that they consult with their Minister on all OIA requests, with the Minister being advised of responses and with transfers of requests to the Minister being considered on a case by case basis.

These practices are not new. In a 2002 review, the State Sector Standards Board found evidence of inappropriate directions from Ministers for all requests under the OIA to be referred to the Minister’s Office.102 And investigations by the Ombudsmen have found agency delays caused in part by an instruction that all OIA requests were to be referred to the Minister for the Minister’s information and clearance;103 and by an instruction to transfer all requests on a particular matter to the Minister.104

The issue of political management of information requests was discussed in a 2009 review of the New South Wales Act by the NSW Ombudsman.105 The practice under review was for all ‘contentious’ requests, such as requests from opposition MPs and journalists, plus individual requests from special interest groups that are identified on an ad hoc basis, to be notified to ministerial offices and then reported on a fortnightly basis to the Department of Premier and Cabinet. The NSW Ombudsmen commented:106

It is not unreasonable for a government or Minister to want to be made aware of applications that could result in it having to deal with a controversial issue when the documents are released. The danger is in the detail, or lack thereof, of the process used and the failure to make absolutely clear that the communication flow should be in one direction only – from the agency up the reporting chain.

While some agencies have a clearly documented and well understood practice of both how and why applications are notified on receipt and copies of finalised determinations are sent to their Minister’s office, others are much less clear. Alarmingly we came across a number of agencies where copies of determinations are not sent to applicants until the agency has heard back from the Minister’s office. FOI staff were often unclear what they are waiting for and delays could run into weeks. This is not appropriate and raises questions about the role Ministers’ offices are playing in the FOI process. Of even more serious concern is the practice of sending draft determinations to a Minister’s office. We have recently had cause to make such conduct the subject of a formal investigation under the Ombudsman Act and have made a series of recommendations about the inappropriateness of such a practice including that it should cease immediately.

Rt Hon Sir Geoffrey Palmer, President, Law Commission “A Hard Look at the New Zealand Experience with the Official Information Act after 25 Years” (address to International Conference of Information Commissioners, Wellington, 27 November 2007) at 15–16.

Steven Price The Official Information Act 1982: A Window on Government or Curtains Drawn? (New Zealand Centre for Public Law, Victoria University of Wellington, 2005). See also Palmer, above n 91, at 14; Rick Snell “Using Comparative Studies to Improve Freedom of Information Analysis. Insights from Australia, Canada and New Zealand” (Conference Paper, 6th National and 2nd International Congress on the Right to Information, Mexico, 8–11 November 2005) at 33, 46; and Graham Taylor and Paul Roth Access to Information (LexisNexis, Wellington, 2011) at 53, 81.

Snell, above n 92, at 49.

Nicola White Free and Frank: Making the Official Information Act 1982 Work Better (Institute of Policy Studies, Wellington, 2007) at 149–150. The issue of trusting officials to properly apply withholding grounds has also arisen in the commercial context: see Katherine O’Regan (10 February 1987) 477 NZPD 6909-6910, (17 February 1987) 478 NZPD 7077.

The good government grounds have been described by one commentator as “so vague as to defy any principled legal analysis”: see “Asset Sales, Ombudsmen, Elections and Official Information #voteNZ” (24 November 2011) <>.

White, above n 94, at 230.

For discussion of the impact of freedom of information legislation on policy development see Peter Waller, RM Morris, Duncan Simpson and Robert Hazell, “Understanding the Formulation and Development of Policy in the Context of FOI” (The Constitution Unit, University College London, 2009) at ch 7. See also Annex D for a comparison of the New Zealand and United Kingdom legislation in this area.

Leo Donnelly, Deputy Ombudsmen “Access to Policy Advice Held by Government Agencies Using FOI Legislation (What New Zealand has learned from its 25 years’ experience)” Paper presented to 5th International Conference of Information Commissioners (Wellington, November 2007).

See Taylor and Roth, above n 92, at 129.

White, above n 94, at 160.

At 146–153.

State Sector Standards Board “The State Sector Ethos – Official Information Act 1982, Privacy Act 1993, Protected Disclosures Act 2000 and Associated Matters” (report to the Minister of State Services, April 2002).

Office of the Ombudsmen Annual Report 2003 at 26.

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

New South Wales Ombudsman Opening Up Government: Review of the Freedom of Information Act 1989 (Sydney, 2009).

At 38.