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• Overview
• Origins Of Section 15(4) And (5)
• The Provisions In Practice
• “Reverse” Freedom Of Information

5 Decision-making rules for Ministers and officials

OVERVIEW

190 THE DECISION ON A REQUEST for information is made by the Minister, department or organisation which received the request unless the request is transferred: s 15(1). The Act lays down almost no procedure for making that decision. In respect of departments, however, s 15(4) requires the decision to be made by the chief executive, or by an officer or employee of the department authorised by the chief executive. Section 15(5) goes on to make it clear that s 15(4) does not prevent the chief executive, officer or employee from consulting a Minister or any other person on the decision that they propose to make.

191 The Law Commission was asked to report on the appropriateness of these rules. One concern expressed to us about the provisions is that if the officer with responsibility to decide the request consults with a Minister and disagrees with the Minister’s views, the departmental position is to prevail. This, it is said, is in conflict with the usual power of Ministers to give directions to the departments for which they are responsible. As we discuss in paras 200–203, the power of the person to transfer the request (under s 14(b)(ii)) on the basis that it is more closely connected with the functions of another department or Minister or organisation is relevant in this context.

ORIGINS OF SECTION 15(4) AND (5)

192 Section 15(4) and (5) were inserted in the Act in the 1987 amendment. They have their origins in concerns expressed in the early years of the Act’s operation by the Chief Ombudsman and by those who considered reforming of the original provision for veto by an individual Minister of an Ombudsman’s recommendation under s 30(1). In an early case about Reserve Bank financial information, the Chief Ombudsman agreed that it was not inappropriate for the body which was asked for the information to consult with the relevant Minister. He also, however, called attention to the fact that it was the Minister (under the law as it was then) who was the final arbiter of the release of the information subject to the possibility of judicial review. The Chief Ombudsman considered that the veto procedure seemed to him

to preclude reliance at an earlier stage on a Minister’s view as a ground for withholding information. The organisation concerned is obliged, in my opinion, to justify its decision by reference to specific provisions of the Act. Any other course would be an abrogation of the organisation’s responsibilities under the Act.
If consultation with a Minister were carried to the point where he was asked to say whether he would direct that any recommendation by an Ombudsman should not be implemented, that in my opinion would be improper. If, on the other hand, the organisation was influenced in its decision primarily by a Minister’s wish to have the information withheld, that would also, for the reasons set out above, be unacceptable. It would mean that the organisation was taking on itself the responsibility of prejudging the Minister’s reaction to a recommendation by the Ombudsman that the information be released and would necessarily assume that the Minister did not propose to consider, at the appropriate time, the arguments advanced by the Ombudsman in support of his opinion and recommendation. ((1984) 5 OCN 52, 57)

193 A paper prepared by Professor Keith for the Information Authority in 1984 addressed the relationship of the Minister and the department in this way:

Should the Minister take any part in the initial decision on the request for information? The answer is yes if the request is made to the Minister. But what if the request is made to the department or organisation? No doubt it can consult with its Minister about its proposed action when it thinks that appropriate. But can the Minister actually make the decision at that point? The legal position is not clear. The Act itself indicates that it is the recipient of the request that is to respond, but the general law relating to the relationship between Ministers and officials and some of the provisions of departmental statutes relating to that relationship require the permanent head and department to act under the direction and control of the Minister. It is not clear whether the latter provisions affect the Official Information Act. What should the answer be? In principle the department or organisation should make the decision: the system of the Act looks to a later voice for the Minister which should, if possible, not be compromised by an early decision. But what of the case of a request to a department for a Cabinet paper or a paper actually prepared by the Minister and held by the department? Should not the Minister (in the former case in consultation with members of Cabinet) make the decision? I suggest that the answer is yes: the Minister should. That situation is already adequately dealt with by section 14 of the Act which provides for the prompt transfer of requests by a recipient to the Minister, department or organisation more closely connected with the function in issue. I accordingly recommend that the Act make it clear that only the body or person dealing with the request make the decision on it.¹¹⁷ (original emphasis)

194 The nature of the concern expressed in those statements is now to be seen in the somewhat different context brought about by the change in the veto process. In place of the responsible Minister, that power may now only be exercised by the Governor-General in Council – in effect the whole Cabinet: see s 32 and our discussion in chapter 10. The Minister who is being consulted no longer has the final power of decision over the request, although it is likely that that Minister’s advice would be important.

THE PROVISIONS IN PRACTICE

195 As noted earlier, the Act does not lay down detailed decision-making rules in relation to requests, so that in practice, agencies determine their own processes for handling requests. The Public Service Code of Conduct (1990) envisages delegation by chief executives of responsibility for responding to official information requests.¹¹⁸ It emphasises that information should only be released by officers authorised to do so, and that care should be taken in dealing with requests:

In cases of doubt, employees should seek the guidance of their superior. Should the release of politically sensitive material be required, such employees should ensure (through their chief executive) that the Minister is fully informed. (16)

196 The State Services Commission, in Release of Official Information: Guidelines for Co-ordination, issued in March 1992 (see appendix H), also stresses the importance of adequate consultation by chief executives with other departments and Ministers. The guidelines are a reminder that the interests protected by the good reasons for withholding information are often interests of the government as a whole, and not simply of the particular department. Other parts of the government will have a real or even a greater interest in their protection in particular cases. Other legislation also emphasises that collective character and function. For instance, one of the principal responsibilities of a chief executive is to tender advice to the responsible Minister and to other Ministers: State Sector Act 1988, s 32(b). That responsibility is directly relevant to the good reasons, in s 9(2)(f) and (g), relating to the internal processes of government (these are discussed in chapter 6).

197 Our consultations have highlighted a particular need for consultation within government where requests for the same information, or a single request, are made to a number of different agencies: eg, to departments and to Ministers holding different portfolios. The importance of a co-ordinated government response to the request remains the same as if the request were made to the Minister and department for which he or she is responsible. Yet the lines of communication across departments and portfolios may not be well established. Moreover, as noted in chapter 1, the Act is now being used by political parties to a greater extent than was originally anticipated in an attempt to obtain information which is politically damaging to the government.¹¹⁹ In these circumstances the provisions in s 14 regarding transfer of requests (to the Minister’s office, which may in turn consult the Office of the Prime Minister to co-ordinate the government’s response to the requests), become particularly important.

198 The proper role of the process of consultation with other agencies is also expressly recognised in the provisions of the Act regulating the extension of the time for responding to requests (considered in paras 175–183).

199 Some concern has been expressed that the State Services Commission guidelines in effect tell chief executives to consult. We do not read the guidelines in that way. They say that it “remains, of course, a matter for the judgment of the chief executive whether it is necessary in the particular instance to consult” (see appendix H). That discretion might be given added emphasis in any further version of the guidelines.

200 The Ombudsmen suggested, in their submission on our draft report, that when the department and Minister disagree about release the proper course is for the request to be transferred, under s 14, to the Minister who would then make the decision. That is also the position adopted in the Cabinet Office Manual:

A department can consult with its Minister over the decision it proposes to make on a request for information but it must then either make the decision itself, or transfer the request to the Minister concerned. If, after consultation, the Minister takes the view that the information should not be released but the department believes it should be, 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 Official Information Act 1982. The propriety of such a transfer is not subject to review by an Ombudsman under the Act. Each case of this kind needs to be carefully handled at a senior level within the department, including reference back to the Minister for further consideration if necessary.¹²⁰

201 The only qualification to that statement which the Commission can envisage would be where the request relates to the exercise of an independent statutory power of decision. But such powers are usually associated with particular information requirements involving the disclosure that occurs in a fair hearing; they may be more generous than the Official Information Act and they are likely to apply in place of it (see s 52(3)).

202 The question has been raised whether the transfer provision in s 14(b) is wide enough to allow transfer in such a case. Is the request more closely connected with the functions of the Minister when the department had been principally concerned? In principle the Minister should be seen as having the greater role and responsibility. If there is any doubt the legislation should be clarified.

203 Section 15(4) repeats the provisions in s 15(1) that the department is to make the decision on the request, and in s 14 that it can transfer the request. While its emphasis on the department’s decision-making role may clarify the position, the provision appears to us to be unnecessary (especially with the change in the veto provision: see paras 347–348). It also redundantly gives the power of the department to the chief executive or an authorised official: redundantly, because of the position and powers of chief executives – including their powers of delegation – under the State Sector Act 1988.¹²¹ The procedure appropriate to the relationship between the Minister and chief executive is in our view satisfactorily stated in the Cabinet Office Manual at paragraphs 6.22. It is based on clearly accepted principle, law and practice.

204 Moreover, both ss 15(4) and (5) are incomplete. They relate only to departments, and so do not regulate decision-making or consultation by other agencies which receive requests. Nor should they, in our view. Yet issues of co-ordination and the appropriate identification of matters to be dealt with by the Minister’s office are just as acute for Crown entities, SOEs and other bodies subject to the Act.

205 Accordingly the Law Commission recommends that s 15(4) should be repealed. Repealing s 15(5), however, could lead to an unfortunate adverse inference that consultation was no longer appropriate. Section 15(5) should, in our view, be broadened to cover consultation by all agencies which are subject to the Act. With the suggested repeal of s 15(4), the reference to that subsection in the opening words of s 15(5) should be deleted.

“REVERSE” FREEDOM OF INFORMATION

206 An issue which has been raised with us is the protection of rights or interests of those who have provided information to an agency, when a request has been made to release that information. Should they have specific rights to be consulted before that information is released, both by the agency and by the Ombudsmen in considering a complaint relating to the request? At present the Act places no binding obligation upon an agency to consult with a third party before releasing information pertaining to that party.

207 There is a further issue whether the substantive reasons for withholding third party information, for instance in ss 9(2)(b)and (ba), are appropriately worded.¹²² That issue is not within our terms of reference and we do not discuss it in this report. It was extensively considered by the Information Authority, the government and Parliament in the process which led to the 1987 amendments to the Act, and later in the more specific context of the continued application of the Act to SOEs (see paras 5–7).

208 The Danks Committee considered the inclusion of express statutory protections of third-party interests. The federal legislation then pending (and now enacted) in Australia and Canada provides such protection. The Committee noted that the provisions were limited in their scope, applying to the area of trade secrets, commercially valuable material and the like. They did not extend, for instance, to personal references (Supplementary Report, 71).

209 The Danks Committee also thought that the adoption of good practices by agencies and the Ombudsmen should ensure that relevant third-party interests were taken into account (71). Both s 30(3) of the Official Information Act and s 18(3) of the Ombudsmen Act 1975 require an Ombudsman, before making any report or recommendation that may adversely affect any person, to give that person an opportunity to be heard. The High Court, in the one reported official information case in which a third party has challenged the fairness of the procedure followed by an Ombudsman, held that the Ombudsman had complied with that obligation under s 18. The third party was kept informed and had the opportunity to comment on the Ombudsman’s draft report which recommended release: Wyatt Co (NZ) Ltd v Queenstown–Lakes District Council [1991] 2 NZLR 180 (HC).

210 The Danks Committee was concerned as well about the complexity and rigidity of a statutory scheme protecting third-party information. The Committee also noted that such a third party might seek judicial review of an agency’s decision or an Ombudsman’s recommendation to release official information (12), as has since happened in the Wyatt case.  A third party might also be able to invoke the general jurisdiction of the Ombudsmen under the Ombudsmen Act 1975.

211 As anticipated by the Danks Committee, agencies do in appropriate cases consult the providers of information before making decisions whether to release it. They will very often see such consultation as being in their interest, to ensure the continued flow of information. The inclusion of consultation as grounds for extension of response times under ss 15A and 29A reflect that practice and its appropriateness. Some agencies seeking confidential material from third parties suggest that it be provided on an expressly confidential basis: the providers of sensitive information might seek related contractual rights. Such contracts cannot of course override the Act’s regime of access¹²³ but they might enhance the practice of consultation.¹²⁴ Agencies may also seek waivers of access from individuals who might otherwise seek to request the information.

212 The Law Commission sees no reason to move away from the position relating to the protection of the rights and interests of third parties taken by the Danks Committee, and reflected in the Act and in current practice under it.