7 Protecting diplomatic documents

OVERVIEW

260 OUR TERMS OF REFERENCE ask “whether there should be special rules governing the treatment of some or all classes of diplomatic documents”. Five provisions of the Official Information Act deal in a direct way with information relating to New Zealand’s international relations:

Section 6(a) authorises the withholding of official information “if the making available of [it] would be likely to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand”.
Section 6(b) authorises the withholding of information “if the making available of [it] would be likely to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by (i) the government of any other country or any agency of such a government; or (ii) any international organisation”.
Section 7 sets out the reasons for withholding official information relating to the Cook Islands, Niue, Tokelau, or the Ross Dependency. They are similar to those in s 6(a) and include as well prejudice to the relations between any of the Governments of New Zealand, the Cook Islands, and Niue, and prejudice to the international relations of the Cook Islands and of Niue.
Section 10 provides that, if a request relates to information to which s 6 or s 7 applies or if the information existed would apply, the agency may give notice to the applicant that it neither confirms nor denies the existence or non-existence of that information. The agency must be satisfied that the interest protected by the section would be likely to be prejudiced by the disclosure of the existence or non-existence of the information.
Section 31 provides that if the Prime Minister certifies that making information available would be likely to prejudice the interests set out in ss 6(a) or 7, an Ombudsman is not to recommend that the information be made available. In such a case the Ombudsman does, however, have the power to recommend that the agency further consider making the information available.

261 Diplomatic correspondence might also be protected by other provisions of a more general application, such as those protecting personal privacy, trade secrets, or the free and frank expression of opinion: s 9 (2)(a), (b) and (g)(i).

262 The judgments to be made under ss 6 and 7 require that the release “would be likely to prejudice” the various interests that are referred to. The Court of Appeal has held that the applicable standard is that there is a serious or real and substantial risk of the effect occurring; a risk that might well eventuate.¹⁵⁰ Furthermore, national security, international relations and the sharing of confidential information between governments are interests in respect of which it will be difficult to override the executive’s assessment that release would likely be prejudicial. That is especially so in the case of information which is provided by a foreign government or an international organisation.¹⁵¹ Moreover, the judgments are not subject to the countervailing public interest elements which argue in favour of making the information available.¹⁵²

263 We note two aspects of the main provisions in this group – s 6(a) and (b). First, the provisions are designed to protect very basic interests of the country as a whole. Those interests will sometimes override the otherwise legitimate interest of individual members of the public in having sensitive information relating to the foreign and defence policies of New Zealand. The second point is the emphasis, especially in s 6(b), on the process of providing information. The Danks Committee, in its General Report, explained the point this way:

It is . . . widely recognised that much of the information under these headings [of the interests of the country as a whole] can be sensitive not so much for what it reveals as for the need to protect its sources. The then Chief Ombudsman, in his report on the Security Intelligence Service (1976, p20), reached the conclusion that information received by New Zealand from its friends is of major importance in the political, economic, and strategic policy-making fields. It is in the national interest to continue to get as much of this information as possible. While a good deal of it is in the public domain, some is not. Much of the latter is provided on the clear understanding that it will be afforded in New Zealand substantially the same degree of security as it is afforded in the country of origin. (General Report, para 38, original emphasis).

THE PROVISIONS IN PRACTICE

264 While we are aware of occasional problems, the limited number of cases appearing in the Ombudsmen’s case notes, or mentioned to us by the Ombudsmen, concerning ss 6(a), 6(b), 7, 10 and 31 suggest that these provisions in general operate without too much difficulty. One well-placed commentator says that s 6(a) and (b) seldom give rise to Ombudsmen cases, possibly because they are easily recognised as proper grounds for a substantial degree of withholding.¹⁵³ The Ombudsmen advise that no cases have ever arisen by way of complaint to them under s 7. So far as we are aware, s 10 has been applied to diplomatic documents in only one case, which we discuss in paras 268–269. Lastly, we understand s 31(a) has been applied only once, although there is no public record (such as an Ombudsman’s case note) of this occasion.

265 We now turn to some relevant cases in which ss 6 and 10 have been used, in part to emphasise the importance of the administrative provisions in the Act. One early complainant, shortly before the proposed 1985 All Blacks tour to South Africa, sought access to documents held by the Ministry of Foreign Affairs relating to diplomatic measures taken to offset the damaging international effects of the All Black tour of 1976. The Chief Ombudsman ruled that the actual report could be withheld, as its release would be likely to prejudice the international relations of the Government of New Zealand within s 6(a) of the Act. The Chief Ombudsman indicated that the likelihood of prejudice was related to the fact that sporting contacts with South Africa were of “some significance in the conduct of the Government’s international relations”. However, the Ministry accepted the Chief Ombudsman’s recommendation that a summary be released ((1985) 6 OCN 123).

266 In 1987, the Prime Minister withheld documents relating to the medical condition of one of the French agents convicted in the Rainbow Warrior affair. The Prime Minister later told the Chief Ombudsman that one of the few issues on which there was satisfactory co-operation between the two governments in that affair was the access the New Zealand doctor had been given to the agent and his medical condition. Disclosure of any part of the medical report prepared by a doctor appointed by the New Zealand government would, in the Prime Minister’s estimation, have aggravated the dispute and almost certainly have led to the withdrawal of this existing area of co-operation.

267 The Chief Ombudsman satisfied himself that release of the documents would have involved the disclosure of personal medical information and would accordingly have breached the undertaking given to the French government not to make such information available. On that basis he reached the opinion that disclosure of the information would be likely to prejudice the international relations of the government of New Zealand. The requirements of s 6(a) were therefore met. He also thought that good reason may have existed under s 9(2)(a) for withholding the report to protect the personal privacy of the agent ((1989) 9 OCN 100).

268 A third case concerned both s 6 and the power in s 10 to neither confirm nor deny the existence of information ((1989) 9 OCN 102). The requester sought information about certain intelligence conferences known as CAZAB. Peter Wright in his book Spycatcher had said that New Zealand intelligence agency representatives had attended the conferences along with representatives of other western intelligence agencies.¹⁵⁴ The Director of the New Zealand Security Intelligence Service neither confirmed nor denied the existence or non-existence of the information requested.

269 The Chief Ombudsman’s case note refers not only to s 10 of the Official Information Act but also to s 4 of the New Zealand Security Intelligence Service Act 1969. That section states that one of the functions of the Service is to communicate intelligence to such persons and in such manner as the Director considers to be in the interests of security. The Chief Ombudsman felt obliged by the statutory language to accept, to a great extent, the judgment of the Director in carrying out a review in such a case. He recalled that Sir Guy Powles as Chief Ombudsman in his 1976 report on the Service had stated that in general “it would not be proper to make any public comment” on the relationship between the Service and its overseas counterparts. He noted that the test in ss 6 and 10 that prejudice “would be likely” was not high. Furthermore, the reasons for withholding information were conclusive; there was no element of countervailing argument as under s 9. The Chief Ombudsman therefore accepted the Director’s reliance on s 10.

270 The Ombudsmen have mentioned to us two further complaints which demonstrate that more difficult international relations cases can arise. One related to the inquiry of the Special Committee on Nuclear Propulsion in 1992. In that case more than one ground for withholding the information requested was available – protecting the process of giving free and frank advice as well as protecting international relations. More than one withholding ground was also relevant in the second case, which concerned access to consular files. The Ombudsmen ascertained that the Ministry’s objection was principally to the release of documents from consular files rather than information itself. Accordingly while the Ombudsmen found that there was good reason to decline to release some information under ss 6(a), 6(b), 9(2)(a), 9(2)(ba)(i) and 9(2)(g)(i), those provisions did not prevent the Ministry from releasing the information in another form. Eventually it released a summary of certain information which was accepted by the requester ((1993) 10(2) OCN 24).

271 Similarly, a foreign government may not like copies of its cables being handed over by the Ministry of Foreign Affairs and Trade, but it may have no problem with the release of the content of the information. Consideration of other forms of release may often allay concerns related to the release of certain documents rather than the information in them.

CONCLUSIONS

The general approach

272 The cases mentioned here tend to confirm that in the area of international relations the basic approach of requiring an argument and judgment (including, if appropriate, an Ombudsman’s independent judgment) that the release of the particular piece of information involves a real risk of harm is both appropriate and correct. A class approach (excluding, say, diplomatic correspondence between New Zealand and other states) or one that allowed the executive to determine harm (eg, through a certification procedure), would defeat that basic approach. It would also remove – or at least greatly limit – the judgment of an independent officer reviewing the departmental judgment, and inappropriately restrict the availability of information. No one suggests that all diplomatic correspondence must be protected: New Zealand and other states accept that the treaties and international agreements they sign must (and not simply may) be published.¹⁵⁵ An Ombudsman’s independent review of the executive opinion on issues of consequential damage in international relations can be carried out, even if it will often involve greater deference to that opinion than is to be found in other areas of operation of the Act.

273 We mentioned in chapter 1 the increasing internationalisation of national law and policy-making. Once the relevant international process is completed, the choices open to New Zealand policy makers and lawmakers (and those who attempt to influence them) may well be very limited: the text is likely to be determined, with no prospect of amendment, and the government may have no real choice but to accept it. There will properly be increasing pressure on the government to ensure appropriate consultation in the international processes, and the national processes which inform them.

274 In both New Zealand and Australia there have recently been calls for greater openness in treaty-making process. In particular, there have been calls for Parliament to play a role in decisions to enter into treaties, and not be confined to legislating to incorporate treaties into domestic law.¹⁵⁶ A formal role for Parliament in the making of treaties could lead to far wider dissemination of information about treaty making than is currently the case (eg, if a proposed treaty went before a select committee with the opportunity for public submissions).

275 The developments just mentioned raise the question whether the line between the conclusive reasons for withholding information about international relations in s 6(a) and (b) and the other reasons in s 9 remains as compelling as it was in 1982. Should not information falling within the international relations provisions be subject to release if the public interest in disclosure in the particular case is of greater weight?

276 The Law Commission thinks not. The provisions protect the international relations of New Zealand, and the flow of information from other governments or international organisations. They are about continuing relationships with others, some of which are of major importance to New Zealand’s vital interests. Judging the likely prejudice to those relationships as a result of releasing official information is a difficult task, and will frequently involve intangible considerations. The further question which would need to be asked under s 9 – whether any prejudice is outweighed by public interest considerations which make it desirable to release the information – would be even more difficult. In any event, sometimes the government will decide that the public interest in disclosure must prevail: it is not bound to apply s 6(a)–(b) in the absence of international obligations of secrecy.

277 Accordingly the Law Commission recommends no change to the protective provisions of ss 6(a)–(b), 7 and 10.

Section 31 certificates

278 A further point concerns the continued justification for the Prime Minister’s certificate power under s 31(a) of the Official Information Act.¹⁵⁷ We consider the time is now right for the government to consider whether matters of defence and foreign affairs might be excluded from this power, and its scope confined to matters of security. We have not had the benefit of others’ views on narrowing s 31, as it was not raised in our draft report. We therefore stop short of recommending, in this report, that s 31 be amended immediately.

279 In 1981, the Danks Committee justified including s 31 by reference to s 20(1) of the Ombudsmen Act 1975,¹⁵⁸ which to the committee’s knowledge had not been criticised. Although s 20 was not known to have been used between 1962 and 1981, the committee felt that it might be used more often if there was no power, such as that now contained in s 31(a), to intervene at a later stage. The committee noted that the proposed s 31, by contrast with s 20 of the Ombudsmen Act, would allow the Ombudsman to complete the investigation and if appropriate request reconsideration (Supplementary Report, para 83).

280 As noted earlier, s 31(a) has been used only once to our knowledge. The prospect which the Danks Committee envisaged in 1981 has not been fully realised. The interests which the provision protects are directly addressed by ss 6(a)–(b), 7 and 10. They have been given a broad reading by the Ombudsmen who have not in general shown an inclination to closely review the executive judgment.

281 On one view, the number of times s 31(a) has been used should not count against it. It is a useful “fallback” provision which may in fact have had some influence even though it has not been invoked. Section 31(a) recognises the fundamental nature of defence, security and international relations, and that occasions will arise when safeguarding those interests is paramount. Sometimes only the government itself can assess whether these interests would be prejudiced. While we accept the fundamental nature of these interests, this is not the end of the matter.

282 Conclusive certificate provisions along the lines of s 31(a) are in principle difficult to justify and do not relate well to the scheme of the Official Information Act. Moreover, the use of the provision only once in 15 years indicates that it is not an essential part of the Act, and that ss 6, 7 and 10 may be adequate by themselves. The repeal of s 31(a) would not permit the Ombudsmen to supplant the judgment of the executive concerning matters of defence, security or foreign relations. The government could still exercise the power of Cabinet veto under s 32 of the Act, in the same way as it would if the information it sought to protect concerned domestic affairs. It would simply place information concerning defence, security or foreign relations under the same regime as other types of information in the event that the Ombudsmen’s recommendations were to be overridden, and shift the key decision-making power from the Prime Minister to the Cabinet.

283 Underlying s 31(a), and s 20(1)(a) of the Ombudsmen Act 1975 which we consider at para 316 below, is the convention that the Prime Minister is the Minister in charge of the Security Intelligence Service (SIS) and security matters in general. The functions of the SIS under s 4 of the New Zealand Security Intelligence Service Act 1969 are expressly “subject to the control of the Minister”. “Minister” is defined in s 2 as the Minister in charge of the SIS, rather than the Prime Minister specifically. Under s 4(1)(b) of the Act it is a function of the SIS to “advise Ministers of the Crown . . . in respect of matters relevant to security, so far as those matters relate to Departments or branches of the State Services of which they are in charge”. Therefore, Ministers receive only limited information from the SIS and even then, subject to the control of the Prime Minister. Section 6(2)(b) of the Intelligence and Security Committee Act 1996 specifically states that it is not a function of the Intelligence and Security Committee, which consists of the Prime Minister, Leader of the Opposition and three other members of Parliament, to inquire into any matter that is operationally sensitive, including any matter that relates to intelligence collection and production methods, and sources of information.

284 But if responsibility for matters of security is concentrated in the Prime Minister rather than Cabinet, the same cannot be said for matters of foreign affairs or defence. There is no convention that the Prime Minister holds these portfolios. Foreign affairs and defence are matters which the Cabinet discusses collegially in Cabinet committees. It is therefore unclear why information concerning these matters should be protected by a Prime Minister’s certificate under s 31(a) of the Official Information Act.

285 Although not directly relevant to our terms of reference, we consider a similar argument can be made in respect of the Attorney-General’s certificate power in the Official Information Act s 31(b). We consider this provision should be deleted.

286 Accordingly the Law Commission recommends that the government consider further whether s 31(a) of the Act might be amended by deleting subparas (i) and (ii) and confining para (a) to information “likely to prejudice the security of New Zealand”. The Commission recommends that paragraph (b) be deleted.

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