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APPENDIX C

The movement towards open government

C1 UNDER THE OFFICIAL SECRETS ACT 1951 and its predecessors, official information was to be kept secret unless a decision was made to release it. This rule was of course subject to many exceptions, both in the Act itself and as a result of administrative practice.

C2 Pressure had been building up for some time before 1982, however, for the basic proposition of secrecy to be modified or even reversed. The year 1962 was a watershed: Parliament, a Royal Commission and the Court of Appeal all took important steps towards making official information more readily available.

The events of 1962

C3 The provisions and the operation in practice of the Parliamentary Commissioner (Ombudsman) Act 1962 contributed in important ways to the openness of government. The Act, like subsequent Ombudsmen Acts, gave the Ombudsmen wide rights of access to departmental files and expressly provided that any rule of law which authorised or required the withholding of any information on the ground that disclosure would be injurious to the public interest did not apply to the Ombudsmen’s proceedings: s 17(2), now Ombudsmen Act 1975 s 20(2). The 1962 Act established failure of a public agency to give reasons for a decision as one of the grounds on which an Ombudsman could intervene: s 19(3)(f), now Ombudsmen Act 1975 s 22(3)(f). In practice, many complaints since 1962 have been resolved by the Ombudsmen’s explanations to those affected by the decision in question. If the Ombudsman considered that a complaint was established and that no satisfactory remedy was provided, it could issue a public report to the House of Representatives as the final sanction. The 1962 Act (s 25) and Ombudsmen Act 1975 (s 29) also provided for the Ombudsmen to report annually to the House.

C4 The Royal Commission of Inquiry on the State Services in New Zealand declared in its 1962 report, The State Services in New Zealand:

Government administration is the public’s business, and that the people are entitled to know more than they do of what is being done, and why. (ch 5, para 37).

C5 The State Services Commission, constituted under the legislation proposed by the Royal Commission’s report, directed in 1964 that the rule be that information should be withheld only if there is good reason for doing so. Administrative directives or understandings, without any change in legislation, can sometimes bring about major changes in the real constitutional position.²⁰⁵

C6 The third major event of 1962 was the landmark case, Corbett v Social Security Commission [1962] NZLR 878, relating to Crown privilege, now referred to as public interest immunity. In this case the Court of Appeal stated that it was for the courts, and not the executive, to decide whether a claim by the Crown for immunity from the release of information relevant to litigation should be upheld. Two of the reasons which the court gave for that view have frequently arisen in the debates about official information legislation. The first was that because of the commercial operations of the state in fields of enterprise such as railways, coal mines, forestry, works, and electricity, a decision made by the state could result in undue curtailment of a subject’s rights. The second was that withholding information to ensure candour of communication within government departments could be abused with far reaching consequences.

Administrative Law

C7 These actions are to be seen in much wider context. In the 1950s in New Zealand, as elsewhere in the common law world, attitudes to public power and, in particular, those favouring the introduction of greater controls over its exercise, were developing. Ideas were on the move – and there were those who were giving them practical content. For example, in the 1960 election the National Party proposed, in addition to measures which led to the creation of the Ombudsmen’s office, a Bill of Rights on the model of that just enacted in Canada, and greater control over the making of regulations. Parliament was also beginning to exert some influence over administration, particularly through the then recently established and strengthened Public Expenditure Committee.

C8 Similar developments were occurring overseas. Thus, the United Kingdom Parliament, responding to the report of the Franks Committee, brought some control and order to tribunals and inquiries, in part by reference to the principle of openness.²⁰⁶ In addition, the International Commission of Jurists at major meetings in the 1950s and 1960s was developing the application of the principle of the rule of law to the exercise of administrative power.²⁰⁷

C9 The courts started calling for greater controls over the exercise of such power. So in the 1960s the House of Lords followed other Commonwealth courts and asserted its power to decide on the government’s claims of privilege in respect of the disclosure of information.²⁰⁸ It also indicated a strong reluctance to recognise that a statutory discretion was unfettered,²⁰⁹ with one immediate consequence being a greater incentive for those challenging government decisions to seek evidence of the reasons for them; and it gave a very narrow reading to a provision which purported to prevent court proceedings challenging administrative decisions.²¹⁰ The most significant court decision, both generally and for open government, was Ridge v Baldwin [1964] AC 40, in which the House of Lords firmly reinstated the principle of natural justice in the law: those exercising public power which might affect the rights and legal interests of particular individuals are in general to give those individuals a fair hearing.

The openness debates and the Danks Committee

C10 These pressures towards greater openness did not relate just to government decision-making affecting particular individuals. In the second half of the 1960s debates about the environment (for example the Manapouri campaign and the related Commission of Inquiry), the economy (the National Development Conference), and foreign affairs led to the development of new processes which generally involved a greater disclosure of information and enhanced exchange of opinion. In the foreign affairs area, for instance, the disputes about New Zealand’s policy towards South East Asia and its military involvement in Vietnam increased contact between specialists inside and outside the government, and provoked public debate in a way unknown before.

C11 Sections 4 and 5 of the Official Information Act reflect the reasons given by the Danks Committee for greater access to official information: that it enables democratic participation, promotes accountability of office holders, and provides proper access by individuals to information about themselves.

C12 In a general sense (if not in strict legal terms) the change made by the Act can be put as an answer to the question: to whom does official information belong? Before 1982 the answer was “the Queen and her advisers”, with the consequence that information was secret unless in the particular case Parliament provided otherwise or the government made a decision to release it. Since 1982 the answer has been “the people”, at least in the sense that official information is to be made available to members of the public seeking it unless there is good reason for withholding it. This shift was reflected in the replacement of the Official Secrets Act with the Official Information Act.

Protecting official information

C13 One important aspect of the “good reasons” for withholding information, which stems directly from the Danks Committee’s recommendations, is that they cover much the same areas of official information as the “exemptions” from the principle of availability (as they are generally referred to elsewhere). For instance, the list of grounds for withholding information in the New Zealand Act follows rather closely those to be found elsewhere.²¹¹

C14 But the way the interests are to be protected may be expressed in different ways. It is possible to draft rules protecting documents which fall within a particular class, for example, certain documents prepared for Cabinet. By contrast the protection might require a judgment of the consequences in the particular case, for example that disclosure of the particular Cabinet paper would impede the free and frank exchange of opinion between Ministers or between officials and Ministers.

C15 The way the Official Information Act states this protection is significant in two respects. First, it generally adopts the latter of the two stated approaches, an approach which allows access to information subject to a judgment of the consequences of release and not simply a categorisation of the information. Secondly, the New Zealand Act provides that, in important areas, such a judgment of harmful consequences can be outweighed by the public interest in making the particular information available. The character of those judgments of the consequences of release and countervailing considerations led to a particular view being taken about the principal method of resolving disputes about the release of official information. The power of resolution was essentially to stay within the executive branch but subject to critical investigation, review and report by Parliament’s independent officer, the Ombudsman. The executive retain a final power of decision in most cases, by way of a veto of the Ombudsman’s recommendation.