Chapter 4: Politically sensitive requests

Views of submitters

A perception of political management of sensitive requests, and a lack of clear process were confirmed in responses to our survey and submissions to the issues paper. It was reported to us that consultation in the political context can create delay and can impact on the decision-making process that is required by the Act. We received comments that this is an area of frustration, consultation creates a conflict of duties, and that the media are distrustful when ministerial offices are seen as influencing release decisions. Others have commented that changes to the political environment mean that guidelines about consultation and areas of responsibility would be useful.107

In the issues paper we asked whether there should be clearer guidelines about consultation with ministerial offices and asked for views about whether there is any need for further statutory provisions about transfers to ministers.108 In submissions, only the Treasury disagreed that there should be clearer guidelines about consultation with ministerial offices, commenting that consultation is a relationship matter that should be worked out on a case by case basis.

All other submitters who commented (21) supported clearer guidelines. The Ombudsmen noted that this is an area that agencies and officials struggle with and that generates suspicion and distrust among requesters. Other submitters commented that the political environment has changed and that guidelines about consultation and areas of responsibility would be useful and are needed to avoid any possible perception of political interference in the way departments respond to requests.

There was little support in submissions for further statutory provisions about transfers of requests to Ministers. 15 submitters thought that there should be no change to the transfer provision. The Ombudsmen’s view was that the existing grounds for transfer are appropriate and should not be amended to take account of situations where agencies and Ministers disagree on the decision to be made about a request.

However three submitters disagreed, one commenting that while fuller guidance may help, it will not rectify the problem. Another thought that where there is disagreement about release, the idea of transferring the request to the minister is a good solution to ensure there is proper accountability for the decision to withhold.

Some participants in Nicola White’s research suggested that the transfer provision should be more flexible in relation to political requests from the media and the opposition:109

the Ombudsman has made it very clear that you can’t have a convention whereby opposition or media requests on certain issues are transferred to the minister’s office, which ultimately means that you do end up in a position where the public service is subject to a greater level of political scrutiny by the opposition and the media than would be the case were it the minister releasing the information.

Other interviewees at the political level of government wanted a return to a much clearer understanding that it is appropriate for ministers to be making the decisions on the release of some papers, in particular Cabinet papers and advice to them as ministers.110

See White, above n 94, at 147–148 citing an interviewee commenting that the OIA now operates in a much more politicised environment than when it was first passed. See also 151, 155–157, 162.

Issues Paper at Q55, Q60, Q61.

White, above n 94, at 160.

At 161.