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1 THIS CHAPTER COMMENTS on the changing context in which the Act has operated since 1982.18 Four aspects of that context deserve particular comment:
2 These developments have had a real impact upon requesters and agencies subject to the Act. While the Act itself has undergone relatively little change, its use of general standards, rather than precise rules, has given the Ombudsmen flexibility in making their decisions. The provisions in the Act requiring a judgment of the consequences of releasing information, and sometimes of countervailing public interests, have also allowed the operation of the Act to change with the times.
3 The Committee on Official Information (the Danks Committee), charged with reviewing the Official Secrets Act, stated in 1980:
The case for more openness in government is compelling. It rests on the democratic principles of encouraging participation in public affairs and ensuring the accountability of those in office; it also derives from concern for the interests of individuals. A no less important consideration is that the Government requires public understanding and support to get its policies carried out. This can come only from an informed public. These are recognised arguments and are well represented in the literature on the subject. There is in addition a special feature of the New Zealand setting for these arguments to which we wish to draw attention.
New Zealand is a small country. The Government has a pervasive involvement in our everyday national life. This involvement is not only felt, but is also sought, by New Zealanders, who have tended to view successive governments as their agents, and have expected them to act as such. . . . History and circumstances give New Zealanders special reason for wanting to know what their Government is doing and why.19
4 The pervasiveness of government in daily life, noted by the Danks Committee, has lessened in the last 10 years with changes in the role and structure of the state. While privatised bodies are not subject to the Act,20 state-owned enterprises (SOEs), Crown health enterprises (CHEs), and other public bodies set apart from central government, are still subject to public supervision through the Ombudsmen and Official Information Acts.
5 In 1990 and 1992 those means of control were confirmed for SOEs by a select committee, executive government, and Parliament: Report of the State-Owned Enterprises (Ombudsmen and Official Information Acts) Committee.21 The select committee heard arguments for and against the continued application of the Official Information Act to SOEs. Submissions supporting the removal of SOEs from the official information regime emphasised, first, the principal objective of SOEs under s 4 of the State-Owned Enterprises Act 1986: to operate as a successful business. To this end, s 4(a) requires SOEs to be as “profitable and efficient as comparable businesses that are not owned by the Crown”. The submissions argued that the requirement to release information about their activities placed SOEs at a disadvantage compared to their private sector competitors, which are not under similar obligations. Responding to official information requests also imposes transaction costs on SOEs to which, again, private sector competitors are not subject.
6 The second argument against SOEs’ being subject to the Official Information Act was that these organisations are already subject to an adequate accountability regime under the State-Owned Enterprises Act 1986. That Act requires SOEs to prepare statements of corporate intent, table financial statements in Parliament, and produce half-yearly and annual reports. Moreover, these requirements are in addition to those on SOEs under the Companies Act. The arguments in this and the preceding paragraph are still voiced by SOEs today.22
7 The select committee, however, reached the following conclusions:
4.2 It is the nature and functions of the SOEs, their role in the community and their ownership, that are the deciding factors in whether they should be covered by the Ombudsmen Act and Official Information Act. SOEs are still owned by the public, and the hybrid nature of their functions continues, together with issues of scale or monopoly.
4.3 The Ombudsmen Act and Official Information Act provide a measure of accountability for the public, particularly on matters that affect individuals and which the other SOE accountability processes do not address, and to remove the jurisdiction of the two Acts would result in a significant loss in public confidence in the Government’s oversight of the SOEs.
8 The Commission endorses these conclusions. The decision whether certain activities traditionally conducted by central government should remain with central government, be devolved to state-owned enterprises, or privatised, is a political one upon which the Commission expresses no opinion in this report. If the SOE model is chosen for a particular organisation, then public ownership and the performance of certain public functions by that organisation weigh in favour of retaining controls such as the Official Information Act and Ombudsmen Act.23 Taxpayers have invested in publicly owned entities, and are entitled (subject to the exceptions in the Official Information Act) to know what happens to their investment. Moreover, individual taxpayers (unlike shareholders of a private company) cannot relinquish their investment in the public bodies. All these factors make the analogy with private sector organisations at least incomplete.
9 The arguments of commercial disadvantage submitted by SOEs can be overstated. There are provisions in the Act protecting information concerning the commercial activities of agencies subject to the Act – in particular s 9(2)(b) and (ba), and s 9(2)(i)–(k) – subject to the countervailing public interest. The Ombudsmen have issued guidelines concerning these provisions, and their equivalents in the Local Government Official Information and Meetings Act 1987.24
10 Recently, two public sector agencies asked the Ombudsmen whether these provisions would protect information provided by or generated for third party commercial clients during the process of agencies tendering for commercial contracts, and research information generated for third party commercial clients. The Ombudsmen replied that, while unable to give a blanket assurance that all information could be withheld, it seemed likely that the provisions of the Act would provide adequate protection in these circumstances.25
11 The Ombudsmen Amendment Act 1992 and the Official Information Amendment Act 1992 extended the application of both principal Acts to subsidiaries of SOEs. By contrast, when local authority trading enterprises (LATEs) were set up (largely on the model of SOEs), the Local Government Official Information and Meetings Act was not made applicable to them. The 1990 select committee recommended that LATEs should also be subject to the Ombudsmen Act and the Local Government Official Information and Meetings Act26 – but this recommendation has not been effected. The Commission considers that the select committee recommendation remains valid.
12 Public agencies, Parliament through select committees, and the courts, all increasingly emphasise open and consultative processes of policy and decision making. Over 1200 statutory provisions use the word “consult” or its variations. An analysis of a large number of submissions made to the the Royal Commission on Social Policy found that New Zealanders wanted three things: voice, choice, and safe prospect. Within voice they included their opportunity to participate in important decisions affecting their lives and well-being.27
13 At best, open consultative processes mean that relevant principles are developed and refined through careful attention to the facts, and details of proposals are tested against experience. Such processes should recognise both the dangers of the tyranny of the majority and the need for broad support for basic social policies.
14 The Law Commission has stressed the importance of open consultative processes as a precondition for democratic lawmaking.28 The Legislation Advisory Committee (LAC) has highlighted practical reasons for consultation:
In some cases the group or organisation will have knowledge and experience about the issues without which it will not be possible to develop the proposal adequately. In other cases early understanding and support for the proposal by the organisation concerned will be essential to its political acceptability.29
15 The practical importance of consultation also appears in the Cabinet Office Manual.30 It requires all Cabinet committee submissions to be accompanied by a form on which the department and Minister have certified what consultation has been undertaken. The Manual also requires Ministers and departments to report if they have not complied with the LAC guidelines. Similar requirements in the Manual apply to the making of regulations.
16 The Official Information Act has become a central part of the culture of governmental consultation with the public and special interest groups. We note in the executive summary that one of the purposes of the Act is to enable the people of New Zealand to participate more effectively in the making and administration of laws and policies. Section 4 of the Act states the goal of progressively increasing the availability of official information. Implicitly, official information is to be made available not only in response to requests made under the Act, but also on the initiative of agencies covered by the Act. As emphasised by one speaker at a recent seminar on the Act, the Act has encouraged the unsolicited release of official information by those subject to it, on the assumption that the information will eventually form the subject of a request.31
17 In this environment, the form in which information is released, and above all the timing of the release, have assumed particular importance.32 The availability of official information can only contribute to public participation in the making and administration of laws and policies (s 4) if relevant government decisions have not already been made. Issues concerning the timing of release of information are discussed further in chapters 4 and 6.
18 Public advisory bodies provide one means of facilitating consultation with the public. An LAC discussion paper lists over 110 public advisory bodies with some degree of permanence: Public Advisory Bodies: a discussion paper (LAC, Wellington, 1990); see also the Directory of Official Information 1995–1997 published by the Ministry of Justice which helps to update that list. About one quarter of those bodies were established by legislation; as a matter of principle all such bodies are, and should be, subject to the Official Information Act.33 In addition to the more permanent bodies are temporary, ad hoc bodies established for a particular purpose. These bodies are, in general, subject to the Act by means of s 2(2)–(4).
19 Consultation, by increasing public participation in the making of law and policy, reduces both the secrecy of these processes and the need to resort to the Official Information Act. Information about whom the government has consulted and, more importantly, what advice has been provided by consultees, may itself form the subject of a request under the Act, which in some cases might be refused under s 9.34
20 With the introduction of MMP, the Official Information Act is now operating in a context which could not have been anticipated by those responsible for the Act. Identifying the consequences of the new electoral system for the Act and its operation still involves speculation, but some comments can be made based on experiences of coalition governments overseas, and in New Zealand up until now.
21 First, the number of members of Parliament in New Zealand has increased. The 1995 report of the Standing Orders Committee, Review of Standing Orders, expected that in a Parliament of 120 members, approximately 96 members would be available to serve on select committees. This would allow for twelve eight-member subject select committees, the Regulations Review Committee, Privileges Committee, and ad hoc committees on electoral reform and standing orders. The report stated that ideally each MP would only be on one select committee.35
22 In practice some of the subject committees in the current Parliament have 10 or 12 members: some MPs serve on two or even three committees. Nevertheless, the general trend of limiting each MP’s committee memberships requires MPs to specialise in particular areas of policy and administration, and intensify their scrutiny of the activities of departments, Crown entities and SOEs. The State Services Commission speculated in 1995 that members “may seek to obtain information through select committees, rather than through previously used channels such as oral and written channels and official information requests”.36 But, in the Law Commission’s view, the developing subject specialisation of MPs is also likely to increase both their use of the Official Information Act and of parliamentary questions to obtain information on government activities – not as part of select committee work, but as part of the policy formulation process for their own political parties.
23 Secondly, MMP has increased the number of political parties in the House of Representatives (from four in the 1990 Parliament to seven immediately before the October 1996 election,37 and six in September 1997). Moreover, the strength of parties other than the two traditional “major parties” has increased. This has led to a broader debate than was the case at the height of two-party politics, and more requests for information about the activities of government from a number of political parties rather than from a solitary or major opposition party. The Official Information Act provides an important vehicle for making such requests – as noted in our executive summary, the evidence already points to its increased use.
24 A third, related point concerns the likelihood of coalition governments under MMP and the effect this may have on conventions governing the relationship between MPs, Ministers and officials. It was widely recognised before October 1996 that coalition or minority (including coalition minority) governments were more likely under MMP than under the “first past the post” (FPP) system it replaced. The period leading up to the October 1996 election saw New Zealand’s first coalition government since World War II. With the party receiving the greatest share of the party vote in the first MMP election falling well short of an absolute majority, coalition or minority governments seem likely to become the norm in future New Zealand politics.
25 Coalition government may focus attention on the convention that officials serve the government of the day. Under a coalition government officials will have increased contact with Ministers from more than one party. Officials may face an apparent conflict of responsibilities arising from the different attitudes of their Minister, possibly from a minority party, and the remainder of Cabinet. The State Services Commission speculated that
a situation could arise where a chief executive was instructed by the responsible Minister from one of the coalition parties to undertake some action which the chief executive considered contrary to the expressed policy of the Government or to the requirements of collective interest. This might be particularly problematic if a chief executive reported to several Ministers, or if a pattern emerged of Ministers from a particular party dominating certain portfolios – as is the case with the Free Democratic Party (FDP) in Germany.38
26 Similar difficulties could of course have arisen under FPP if Ministers differed sharply among themselves within a single party government. Under a coalition, such disputes may be capable of resolution by reference to the coalition agreement, or the dispute resolution procedures established under it. The coalition agreement may also serve as a source of guidance for officials seeking to avoid any suggestion of political advocacy.
27 This ties in with another convention which some have suggested may be strained by MMP – the political neutrality of officials. This convention is referred to in s 9(2)(f)(iii) of the Official Information Act – protecting the “political neutrality of officials” may constitute a good reason for withholding official information. But, as the then Secretary for Justice pointed out:
On the other hand, some of the conventions referred to in the Act will generally be best served by disclosure. An example is the political neutrality of officials. If officials are politically neutral, as they are meant to be, they have nothing to fear from disclosure. If they are partisan, disclosure may well promote the convention.39
28 If there are indeed difficulties for officials in maintaining, or being seen to maintain, political neutrality under a coalition government, it may be that other sources of advice will be increasingly used by government.40
29 Fourthly, another source of potential difficulty arises from the greater general contact between officials and minority parties. That possible difficulty also has precedents in the briefing of caucus committees, opposition members and opposition caucus committees, and indeed groups outside Parliament. Rules for dealing with these contacts would no doubt be desirable, and some do already exist, including the need for ministerial approval. The role of the Official Information Act as the means by which opposition parties obtain information from officials before an election is still to be worked through in New Zealand,41 but may be compared with the practice in Australia, Ireland and the United Kingdom where opposition parties are briefed by officials.
30 Fifthly and finally, questions as to the scope of the Act have also arisen as a result of a new aspect of public affairs under MMP – the process of coalition forming itself. The advice given by senior officials to the parties engaged in coalition negotiations is official information within the Act, although there may of course be good reasons for withholding that information. But advice given to those parties by private bodies (eg, costings of particular policies by external consultants), will not fall within the scope of the Act unless commissioned by officials or Ministers acting in their official capacities, or otherwise incorporated into departmental advice.
31 Under clause 12.1 of the Coalition agreement signed on 11 December 1996, between the National and New Zealand First parties, all “records, reports or other documents relating to the Coalition are confidential”, except in limited circumstances where the information was already public or known to the receiving party. To the extent that the Official Information Act applies to such information, that agreement is subject to the Act’s request and withholding provisions.42
32 Party caucuses are likely to have a significant role at some stage in the coalition-building process. The Ombudsmen have more than once determined that information held by Ministers in their capacity as a member of caucus, is not official information.43 Furthermore, the High Court held in March 1997 that minutes of a caucus meeting were not discoverable. The grounds on which discovery was resisted were parliamentary privilege, public interest immunity, and that discovery was not reasonably necessary: Rata v Attorney-General.44 That decision, by treating caucus documents as a class of evidence entitled to public interest immunity, takes a different approach to that of the Official Information Act.
33 As trade, finance, information, the environment, human rights and many other matters increasingly become the subject of international law, international processes of advice and lawmaking grow in importance. Approximately 200 out of the 700 or so public Acts of the New Zealand Parliament appear to raise issues concerning New Zealand’s international rights and obligations.45 The statutes may give direct effect to treaty provisions, or they may empower the government to give effect to them.46
34 In these cases the basic material for making policy and law in New Zealand is provided not by New Zealand advisers but by international ones. If public participation is to be effective, then the open process which the Official Information Act emphasises will have to extend to information held by the New Zealand government about the international processes in which it is involved. Once the international processes are complete, there may be no real role for New Zealand interests to play. The Clerk of the House has recently observed:
One problem with globalisation is that people can lose control over decisions on the rules that affect how their society is governed. Moving rule-making to an international plane exacerbates the danger of remoteness which is already present at a national level.47
35 The domestic consultation process followed in the GATT Uruguay Round has been outlined in a speech by the Secretary of Foreign Affairs and Trade.48 Groups consulted included business organisations, academic and research organisations, media, and community groups including Mäori and environmental interests. This does, however, contrast with the views expressed in one submission received by the Law Commission on the draft of this report. The submission commented on a refusal by the Minister for Overseas Trade Negotiations to release copies of the draft GATT Bill and New Zealand’s offer on GATT. The Minister cited s 9(2)(d) and the conclusive provisions of s 6(e)(vi).49
36 As the submission acknowledged, s 6(e)(vi) provides a conclusive reason to withhold information, rather than merely a reason to be balanced against the public interest in releasing the information – a reflection of the executive’s traditional autonomy to conclude international trade agreements. We discuss s 6 in more detail in chapter 7.
37 As the executive summary records, the Official Information Act works reasonably well to further its stated purposes. But as is to be expected, there is room for improvement. We explore specific improvements in the following chapters. In the rest of this chapter, we discuss ways of ensuring that the ethos of open government is fostered and maintained. In particular, we identify the need for the administration of the Act to be enhanced, and propose an increased responsibility on the Ministry of Justice to provide leadership on what is a constitutional function.
38 While there does not appear to be any widespread call for substantial change to the Act, there have been a number of comments calling for an improvement in the way the Act is administered. Among these there has been a revival of interest in the idea of a separate agency responsible for administering the Act. This was the task of the Information Authority which was established under the Act but ceased to exist in 1988.
39 Some of the Information Authority’s functions were transferred to the Legislation Advisory Committee, whose terms of reference accordingly include “monitor[ing] the content of new legislation specifically from an ‘official information’ standpoint”. But the LAC meets only periodically, has no full-time staff, and cannot carry out the day-to-day role, formerly undertaken by the Authority, of keeping the Act under review.
40 Two of the Authority’s functions under the expired s 38(2) of the Act merit particular comment:
(b) To recommend to any Department or Minister of the Crown or organisation that that Department or Minister of the Crown or organisation make changes in the manner in which it or he gives access to, or supplies, official information or any category of official information:
. . .
(d) To inquire into and report on the question whether this Act should be extended to cover information held by bodies other than Departments, Ministers of the Crown, and organisations.
41 To some extent the Ombudsmen, either in relation to specific requests or in their published case notes, are able to comment upon the manner in which a Minister or agency gives access to or supplies official information. But they may find it difficult to ascertain, for example, whether information supplied by an agency in accordance with requests is indeed all the relevant information held within the scope of the request, rather than simply enough to satisfy the requester on each occasion. Essentially, there is no overall audit of agency and Ministerial compliance with the Act, although the Ombudsmen do have authority, under s 16 of the Ombudsmen Act, to inquire into the way in which departments or organisations (but not Ministers) respond to requests generally.50
42 An audit role is characteristic of freedom of information and privacy legislation in the provinces of Canada. In New Zealand, the Privacy Commissioner has an audit function under s 13 of the Privacy Act 1993.51 The Law Commission believes that more active monitoring of agencies’ performance could also benefit compliance with the Official Information Act.
43 There are also current issues as to whether the scope of the Act should be broadened, for example to include the Parliamentary Services Commission.52 We consider that keeping the Act’s coverage under review is consistent with the its purpose in s 4 to increase progressively the availability of official information. The Ministry of Justice (which is responsible for providing guidance to the government in this area) currently has limited resources to devote to this function.
44 A further role of some importance is to provide education and publicity about the Act to government and the public alike. The Privacy Commissioner has, and is active in exercising, such a function under s 13(1)(g) of the Privacy Act 1993. But educational activity in the official information area has been spasmodic and uneven in its coverage.
45 The Ombudsmen have published useful guidelines on the application of the Act, and have regularly commented on issues of note in their annual reports and published case notes. They and their staff have taken on a limited educational role and more recently have published a newsletter, Ombudsmen Quarterly Review. This publication contains guidance as to the interpretation of provisions in the Act and provides examples of best practice. The Ombudsmen’s activities of this nature have been limited, however, by lack of funds, and the publication of case notes has ceased in recent years. The Ombudsmen have also commented that an educational role does not always fit comfortably with their role as independent reviewers of decisions under the Act.
46 In our view, the publication of case notes and guidelines, and the holding of seminars to improve understanding of the Act and encourage best practice, are essential to improving the effectiveness of the Act, and should be properly funded (see para 135). We note that the internet provides an opportunity for the guidelines and case notes to be disseminated widely and at little cost.
47 The State Services Commission is responsible for government departments’ compliance with the Official Information Act. It periodically issues guidelines on how to handle requests, although these have not been updated for some time. The public, however, has no comparable source of education and advice, and nor does the State Services Commission have authority in respect of organisations outside the core state sector where, as noted in the executive summary, there may be a greater need for education. Similar observations about the limits of the State Services Commission’s jurisdiction have been made, outside the official information context, in the recent report of the Government Administration Committee.53
48 There is a strong case for systematic review and oversight of the Official Information Act. The preceding paragraphs show how these functions, and educational functions, are currently divided between the Ombudsmen, Ministry of Justice and the State Services Commission. The Law Commission considers that the Ministry of Justice is the appropriate body to assume overall responsibility for these functions. It has the advantage both of links throughout the public sector and of the constitutional role of the Justice portfolio which permits a principled and systematic approach to the issues. In some cases the Ministry’s role would be to ensure that certain functions are performed either itself or by others – for example, publishing guidelines and case notes might be the task of the Ombudsmen. In addition, the broader roles of policy advice on the Act, and ensuring compliance with the Act, should be provided directly by the Ministry. The State Services Commission would retain an overview of policy and practice regarding government-held information, including the performance by the Ministry of Justice of its responsibilities regarding the Official Information Act.
49 The notion of a stand-alone body has its attraction, and was recently proposed in Australia.54 A separate body would have both the advantage and the disadvantage of being removed from the day-to-day operation of the Act. It would also have the disadvantage of its separate funding costs, and could experience difficulty in maintaining close links with the relevant agencies. The success or failure of its work, in terms of open government outcomes, would be difficult to quantify. We consider that the enhanced, co-ordinating role we propose for the Ministry of Justice should work satisfactorily, and at this stage do not recommend the establishment of a new information authority. The matter is so important, however, as to warrant review by the government in 3 years.
50 The Law Commission recommends that, as part of the Coalition Government’s review of the Act:
51 The Act encourages release of information without recourse to the request procedures only implicitly. But one of its effects undoubtedly has been to increase steadily the volume of official information which is supplied to the public without request. Promoting that as a trend is another important way of implementing the purposes of the Act.
52 Early in 1997 the State Services Commission finalised a policy framework for the management of government-held information in the collective interest of the government and the public of New Zealand.55 The Treasury has also produced a paper concerning government information supply activities which was adopted by the government in July this year.56 These initiatives broadly reinforce the values expressed in the Official Information Act, in particular progressively increasing the availability of official information (s 4(a)), the principle of availability (s 5), and that any charge for information should be reasonable (s 15(2)). They followed a review which found departmental practices and pricing policies on information disclosure were ad hoc, inconsistent, and too dependent on individual commitment and philosophy. The policy framework, which was adopted by the government in April 1997, lays down 10 integrated principles for good management of government information. Each is intended to contribute to the following outcomes:
53 The principles are set out in appendix I. The first of them, described as the availability principle,57 states that government departments should make information available “easily, widely and equitably to the people of New Zealand”. It carries the implication that government-held information will increasingly be made available proactively and in electronic form. While fully consistent with the objective of the Official Information Act to make official information “progressively” more available to the public, this approach promises at the same time to reduce need for the Act as a means of accessing information. It will also achieve a greater level of consistency in the type and frequency of information disclosure, and consequently reduce the compliance costs involved in processing specific requests.
54 The Law Commission fully endorses this approach. It preserves the existing limits on release of information set by the Official Information Act, Privacy Act, and other statutes such as the Statistics Act 1975, while broadening considerably the range of government-held information (as defined) which reaches the public arena through the internet and by other means. Although the policy framework binds only departments, its philosophy ought also to be attractive to the wider public sector.
55 We return to other principles in the policy framework, such as those relating to the pricing of information, in chapter 3.
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