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213 THE FOCUS OF THIS CHAPTER is the provisions protecting effective government and administration. Under s 9(2), information can be withheld if this is necessary to
(f) Maintain the constitutional conventions for the time being which protect
(i) The confidentiality of communications by or with the Sovereign or her representative;
(ii) Collective and individual ministerial responsibility;
(iii) The political neutrality of officials;
(iv) The confidentiality of advice tendered by Ministers of the Crown and officials; or
(g) Maintain the effective conduct of public affairs through
(i) The free and frank expression of opinions by or between or to Ministers of the Crown or members of an organisation or officers and employees of any Department or organisation in the course of their duty; or
(ii) The protection of such Ministers, members of organisations, officers, and employees from improper pressure or harassment.
214 We have considered two specific questions. The first, raised directly in our terms of reference, is in two parts: how are the interests of effective government and good administration reflected in s 9(2)(f) and (g) to be appropriately protected in light of the principle of availability; and can the interests protected by these provisions be more precisely defined? The second question is whether, in addition to or instead of legislative change, administrative measures (such as training, fuller public discussion, and guidelines explaining the relevant interests) might help address particular difficulties with the operation of the Act.
215 Official information regimes universally recognise that some parts of the process of government will be conducted in private. As the Danks Committee put it:
To run the country effectively the government of the day needs . . . to be able to take advice and to deliberate on it, in private, and without fear of premature disclosure. If the attempt to open processes of government inhibits the offering of blunt advice or effective consultation and arguments, the net result will be that the quality of decisions will suffer, as will the quality of the record. The processes of government could become less open and, perhaps, more arbitrary. (General Report, para 47)
216 The fact that some confidences must be kept by doctors, lawyers, and spouses remind us that law and practice in the private sector, as well as in the public, recognise that privacy or confidentiality will sometimes be preferred to openness. The values reflected in that law and practice may provide good reason for withholding official information, as is clear from the protective purpose set out in s 4(c) of the Act.125 But the protection must also have its limits.
217 Four features of s 9(2)(f) and (g) can be stressed at the outset.
are not such as to deter us from supporting greater openness. But they should be taken carefully into account in mapping out the critical path for change. A new and sharper definition of areas of responsibility at senior levels, and the development of new and perhaps more explicit codes governing the relationship between Ministers and officials might be required. The importance of careful adjustments in this area does point yet again to an evolutionary approach to openness. (para 49)
218 The emphasis in that passage is reflected in s 9(2)(f) by the phrase “for the time being”, and by the essential character of some of the listed constitutional conventions. In paragraph (g) it is reflected by changing perceptions of what “the effective conduct of public affairs” requires, for instance in terms of the advice given to Ministers by officials.
219 The terms of reference and the views considered by the Law Commission in its review imply two concerns.
220 The first is that the provisions are uncertain – perhaps unnecessarily so – and that the uncertainty could be removed (or at least reduced) by defining more precisely the interests which are to be protected. One recent suggestion is that s 9 should directly address the harm that is to be avoided by referring to the need to maintain the values of integrity, manageability and quality of governmental decision-making, and the effective co-ordination and implementation of decisions.127 Thus, in general terms, information should be withheld for a limited time only to protect those values; although other values (for example, the maintenance of collective ministerial responsibility) may require long-term protection of information.
221 The second concern relates to the effect which the Act may have had on the range and quality of advice given to Ministers. Here opinion is divided between those who consider the Act to have inhibited officials in the frankness of their advice (or at least to have resulted in the most sensitive advice being given orally in an attempt to evade the possibility of disclosure),128 and those who see the anticipation of possible release under the Act as a useful discipline which ultimately improves the quality of advice.129
222 Some Ministers, for their part, have been surprised at “liberal” interpretations of the Act, which have seen Cabinet committee papers and advice to Ministers made routinely available, and sensitive information such as exchanges of opinions between Ministers made subject to the possibility of release.130
223 The Danks Committee in developing its overall approach stressed a number of important general considerations:
One which poses great difficulties is the need for balance – balance between the presumption that greater openness should be sought, and the need for protection in certain sensitive areas. The elements in balance would undoubtedly change over a period of time: reasons for protection based on the experience of the 1970s might not hold up through the 1980s. A second major consideration is the great difficulty of simultaneously applying a single regime all at once to all areas of government activity. (General Report, para 63)
224 Greater certainty would exist if general protection were given to categories of information relating to the processes of government, for instance advice to Ministers, or draft legislation, or Cabinet papers. This would also, however, reduce the availability of information. The Law Commission does not detect any call or need for such a fundamental change in the scheme of the statute. If anything, the call is for greater availability and transparency131and more systematic disclosure of a wider range of information.132 The interests of participation and accountability make it critically important to allow for judgment and balance, especially in cases where the public interest in disclosure is particularly strong or where (as is often the case) the need to withhold information may be expected to diminish over time.
225 The Law Commission identifies four important features of s 9(2)(f) and (g) which are important to any decision on a request for information about the making of law or policy. The features are:
226 Sections 4 and 5 provide important reminders of the democratic imperative underlying the Act. An informed citizenry is essential to an effective, working democracy whose decisions are broadly accepted. The people must be able to participate in public processes and call the government to account.
227 Also critical is that the government, elected by the people, is able to govern effectively. To do that it needs to be able to receive some advice in private and to debate its options and policy in private – at least some of the time. Thus, s 9(2)(f)(iv) protects the process of tendering advice to or by Ministers, while s 9(2)(g)(i) refers to the free and frank expression of opinion, such as is necessary to maintain the effective conduct of public affairs. But both are subject to the public interest balancing test in s 9(1).
228 The Law Commission cannot accurately assess the extent to which the giving of free and frank advice to Ministers may have been undermined by the Official Information Act and the interpretations given to it. Suffice to say that officials (and more particularly chief executives of departments) have a duty to give such advice and in doing so not to be constrained by the fear of public disclosure. As one senior chief executive recently observed, the convention of political neutrality of officials in itself promotes the exercise of that duty.133
229 The general point is that the Official Information Act places important emphasis on democratic participation in government; a point which has been respected by successive governments.
230 In any request it is the information – rather than the form in which it exists – which is of primary importance. Conceivably, as many as 11 distinct types of information may be sought:
231 These categories will often overlap. In many instances a policy paper will be in four broad parts:
232 The protective provisions of s 9(2)(f) and (g) are essentially about the internal process and working of government. They are not directly about either the substantive interest at stake or the product of the process. Accordingly the fact that a matter is being discussed or that information is held, and the range of issues or questions being discussed, generally will not be able to be protected under their terms. It may be that substantive reasons (for instance relating to the economy, in ss 6(e) and 9(2)(d)) would protect such information, especially for a time. The result of the process – the decision taken and the reasons for it – will also usually be made available, although ordinarily at a time of the government’s choosing (see s 18(d)); and sometimes in a formal manifestation such as a regulation, Order in Council, or international agreement.134
233 The deliberative process most directly relates to the evaluation of options and the advice upon them. It may on occasions require the range of options to be protected as well. Paragraphs 9(2)(f) and (g) themselves point to the deliberative process: Ministers and officials tender advice, and Ministers, members of organisations, and officers and employees engage in free and frank expression of opinions.
234 The Ombudsmen’s Practice Guidelines imply that the provisions are not in chronological order: subparagraph (g)(i) concerns the earlier matter, “the generation of opinions, those opinions frequently becoming the basis upon which advice is given”; while subpara (f)(iv) is about the later matter, “the consideration of [that] advice”.135 Obviously those steps will often overlap; in other cases only one might be present, as when an official reports his or her opinion to the department about some problem and does not give any advice about the course of action to be followed.136
235 This approach also supports the particular meaning of the word advice indicated in the lists set out above: a recommendation as to the course of action to be adopted, which is a primary dictionary meaning. It is true that the Ombudsmen go on to suggest that advice can “also mean ‘information given’ and then can encompass purely factual information”.137 While that is an accepted secondary dictionary definition (“we received advice that the goods were shipped”), the primary meaning appears to be given even greater force in the present confined, formal context of subparagraph (f)(iv). The provision parallels the statement of one of the principal responsibilities of chief executives set out in the State Sector Act 1988: “tendering of advice to the appropriate Minister and other Ministers”. The omission of the provision from the Local Government Official Information and Meetings Act 1987 also gives the word and phrase a special and narrow emphasis. As well, the Official Information Act consistently uses the word information to refer to the full range of factual information, opinion and advice.
236 That distinction between information and advice led an earlier Chief Ombudsman to the conclusion that “to advise in this context means to offer opinions as to action”.138
237 Equivalent provisions in other jurisdictions also protect the deliberative process.139 But usually they do not cover factual material, or reports by scientific or technical experts. In general, they also expressly exclude statistical, valuation, environmental, and related reports, as well as reasons for certain decisions.
238 The political importance of a matter might also be evident from the bodies or persons who are dealing with it: the Sovereign or Governor-General, the Executive Council, the Cabinet, Ministers, officials, officers and employees (collectively or individually), departments and organisations (and their members and employees), and outside advisers and consultants. The Act acknowledges the significance of the particular office held, by referring to some (but not all) of those bodies and persons in s 9(2)(f) and (g), and also by the absence of any equivalent to s 9(2)(f) in the Local Government Official Information and Meetings Act 1987.
239 The convention referred to in s 9(2)(f)(iv) of the Official Information Act protects only Ministers and officials in respect of the advice they tender. Section 9(2)(g)(i) and its parallel provisions under the Local Government Official Information and Meetings Act are wider: they protect Ministers, members of an organisation, and officers and employees of any department or organisation, in respect of opinions freely and frankly expressed “by or between or to” them.140 Thus, in relation to departments, the relevant exchanges might be between officers and employees within a department, or between them and officers or employees of another department, members or employees of organisations, or Ministers.
240 The timing of a request, or the decision in respect of it, will often be critical to whether (or to what extent) it is granted. It may be made before the government has begun to establish a position, during the time when it is settling the policy, or after the policy is settled. In the last case the request might be made shortly after the event or many years later.
241 The Act indicates in various ways that information might more appropriately be made available later in the governmental process. For example, s 4(a)(ii) refers to the interest of accountability (which may be best served after the event), and s 18(d) allows a request to be refused if the information is or will soon be publicly available. Historical and archival practice and law also give significant weight to the passage of time.
242 Again, practice under the Act and as revealed by the Ombudsmen’s case notes give weight to these factors.141 In some cases, however, the character of the information will require early disclosure to facilitate public participation in terms of the purpose in s 4(a)(i). The accountability interest may also on occasions require disclosure during the deliberative process. In other situations early disclosure may prevent reliance on the withholding provisions themselves. For example, disclosure of differing views of Ministers might be inconsistent with collective responsibility if at the relevant time no decision has been taken and collective responsibility has not yet arisen.142
243 The purposes of public participation and accountability are frequently taken into account by the Ombudsmen in applying the test of countervailing public interest under s 9(1) of the Act.
244 It is also important to mention ss 16 and 17. These heighten the emphasis on availability by providing for information to be made available in a suitable form (eg, by giving a written summary of the contents of a document), and for documents to be released with deletions, where some but not all of the information has to be protected.
245 Returning to the questions raised in para 214, our principal conclusions are that:
246 The Commission does not consider that the Act should contain categorical exclusions (eg, of advice tendered to Cabinet or draft legislation). Nor, for the same reasons, should the Act expressly exclude certain material, such as factual material and scientific reports, from the existing good reasons for withholding.
247 The developing position under the Act has shown s 9(2)(f) and (g) to be less than perfect in terms of clarity and logic of presentation. Nevertheless the practice they have produced is, in general, well understood. We have considered whether there would be value in rewriting them, either to state the existing propositions with more clarity and logic, or to identify more precisely the types of interest they are intended to protect. A draft was widely circulated and discussed in an earlier version of this report. We have concluded that a change to the legislative formulation would be counter-productive. The jurisprudence and practice under the existing provisions has taken some time to develop – it will, and ought to, continue to evolve. Change would require new adjustments in thinking, and may well generate new contentions of no real merit and of a legalistic type, giving rise to cost and delay both to agencies and to individual requesters of information.
248 We consider the answer to problems with the provisions lies in a renewed effort to make them work through the issue of guidelines, case notes and other explanatory material. Good practice may include, for example, structuring of advice143 with the possibility of requests in mind so that, when they are received, information in the nature of advice, and opinions of a free and frank kind, can be distinguished from other information and considered accordingly. The process of disclosure (especially partial disclosure) is thereby made more straightforward.
249 A particular question which was raised with the Law Commission in the course of its review is whether s 9(2)(g)(i) ought to protect opinions expressed by persons such as consultants, who are outside the system of government but involved as independent contractors in the process of developing policy options. Their advice does not (either as a matter of law or policy) merit protection under s 9(2)(f)(iv) even when adopted into an official paper. But such advice may be open to protection under s 9(2)(g)(i), because of the possibility that opinions expressed freely and frankly by or between “or to” Ministers, officials and others may be protected.
250 Section 9(2)(g) was designed to protect the internal processes of government,144 rather than protect consultants’ opinions as it may now also do. It might be argued that consultants’ advice should not be protected under this provision because it may already be protected under the general confidentiality provisions in s 9.145
251 But the Danks Committee could not have anticipated the changes to the state in the 16 years following its reports, in particular the shrinking of the public sector and the increased use of private sector consultants to provide advice on matters of economic and social policy. Consultants are used far more often and for a much greater range of advice today than was the case in the early 1980s, for various reasons including their particular expertise, limits on departmental resources or time, and the desire for contestability of advice. Sometimes advice concerning a particular service which was formerly performed by government, such as telecommunications, may now only be available from the private sector provider of that service. In other circumstances, advice about an earlier government decision or policy may be required from former government officials now working in the private sector.
252 Removing the protection afforded to consultants’ opinions might discourage the government from seeking their advice in circumstances where it has already decided, for various reasons, that the public sector cannot or should not provide that advice. It could thus act as a disincentive to government seeking advice from whatever source it regards as most desirable. Notwithstanding s 9(2)(ba), it could also act as a disincentive to consultants providing the honest advice which would be expected of them.
253 Furthermore, removing the words “or to” from s 9(2)(g)(i) would have consequences beyond the policy-making process. Opinions are expressed to Ministers and public sector agencies all the time, on a range of matters. The channel may be important for either the communication or the recipient or both.
254 Accordingly, the Law Commission does not recommend any change to the protection of opinions to Ministers or officers or employees of an agency under s 9(2)(g)(i).
255 One further technical point about s 9(2)(g) concerns the description of people included in the provision: official, officer, employee and members of organisations. The State Sector Act 1988 has been enacted since the Official Information Act. Should the list be altered in the light of that and other subsequent developments? The State Sector Act uses the expressions chief executive, employee,146 staff and member of the staff of a department. The State Services Commissioner147 is referred to in s 3 as an officer. Those in the senior executive service are referred to as members of that service.
256 The enactment of the Employment Contracts Act 1991 has also resulted in a wider use in the statute book of the term employee alone. It still, however, appears coupled with officer in a very large number of statutes. By contrast official (as a noun) appears very rarely with employee. And there appear to be no explicit statutory powers to appoint officials, by contrast to the great numbers of powers to appoint officers and employ employees (or increasingly to just employ employees).148
257 The Law Commission does not see any technical reason to depart from the current words: officials, in the context of a narrower provision about the constitutional relationship between Ministers and officials; and officers and employees, in the broader context which covers a wide range of bodies and people.
258 The Commission does however call attention to a difficulty with the expression members of an organisation. That expression does not appear to be appropriate to deal with those Crown entities and other bodies which consist of a single person, such as the Commissioner for Children, the Mäori Trustee, the Parliamentary Commissioner for the Environment, and the Privacy Commissioner. The expression appears only once in the Act – in s 9(2)(g)(i). Rather than amend this subparagraph by adding a reference to “an organisation”,149 it is preferable to amend the definition of “member” in s 2 of the Act to include single person bodies, so that they may be covered by the existing wording of s 9(2)(g)(i).
259 The Law Commission therefore recommends adding to the definition of “member” in s 2(1) of the Act the following paragraph:
“(d) Where the organisation comprises a single person, that person:”.
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