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APPENDIX E

Office of the Ombudsman Practice Guidelines No 2

Current Approach of the Ombudsman to Section 9(2)(f)(iv) & Section 9(2)(g)(i) of the Official Information Act 1982 (hereafter referred to as “the Act”)

1. Introduction

1.1 These guidelines are designed to help holders of official information in their consideration of requests for information. They should not detract from the need for each case to be considered on its own merits, as measured against the relevant statutory criteria.

1.2 Section 4

Section 4(a) of the Act sets out the purposes which Parliament intended to be achieved in enacting the legislation, namely:

“To increase progressively the availability of official information to the people of New Zealand in order—
(i) To enable their more effective participation in the making and administration of laws and policies: and
(ii) To promote the accountability of Ministers of the Crown and officials,
and thereby enhance respect for the law and to promote the good government of New Zealand.”

Section 4(c) provides, however, that a balance must be struck between the interests identified above and the need:

“To protect official information to the extent consistent with the public interest and the preservation of personal privacy.”

1.3 Section 5

Section 5 of the Act reflects the underlying principle of availability of official information:

“Principle of availability—The question whether any official information is to be made available, where that question arises under this Act, shall be determined, except where this Act otherwise expressly requires, in accordance with the purposes of this Act and the principle that the information shall be made available unless there is good reason for withholding it.”

1.4 Section 9

Section 9(2) of the Act identifies a series of interests which Parliament recognised might need to be protected by the withholding of official information in certain circumstances. However, it also acknowledges that there is a need to balance those interests against any countervailing public interest considerations. Section 9(1) acknowledges that there will be cases where the interest in withholding specific information might be outweighed by other considerations which render it desirable, in the public interest, to make the information available.

2. The Role of the decision-maker and an Ombudsman on review

2.1 The role of the decision-maker, and an Ombudsman on review, is to examine the information at issue and form an opinion as to whether or not the interests which the Act seeks to protect would be prejudiced by disclosure of that information. In the course of an Ombudsman’s investigation and review of a decision to withhold information, it is for the decision-maker to bring forward sufficient material to support the proposition that good reason exists for withholding the information, in other words, to justify his, her or its decision with sufficient particularity to enable the Ombudsman to form an independent opinion on the complaint.

2.2 In Commissioner of Police v Ombudsman [1988] 1 NZLR 385, Cooke P said at p 391:

“If the decision-maker, be he Minister or departmental head or Ombudsman or Judge adjudicating on a claim of denial of right, is in two minds in the end, he should come down on the side of availability of information. I say this . . . because the Act itself provides guidance in the last limb of s 5.”

2.3 In the same case, Casey J said at p 411:

“. . . in conducting a review of the decision, the Ombudsmen are not engaged in an adversarial exercise. The provisions of the Ombudsmen Act apply (section 29 Official Information Act), and under sections 18 and 19 they are given wide powers of inquiry and are not confined to the material put before them by those immediately involved. In the nature of things he who alleges that good reason exists for withholding information would be expected to bring forward material to support that proposition. But the review is to be conducted and the decision and recommendations made without any presumptions other than those specified in the Act.”

2.4 Furthermore, even where the decision-maker or an Ombudsman on review forms the view that s 9(2)(a)–(k) applies to the information at issue, s 9(1) requires that consideration must still be given to the question of whether, in the circumstances of the particular case, the withholding of the information is outweighed by other considerations which render it desirable, in the public interest, to make that information available.

2.5 One of the most difficult areas which Departments, Ministers of the Crown and other organisations are called upon to address, and which an Ombudsman has to assess upon review, is the precise nature of the interests which s 9(2)(f)(iv) and (g)(i) seek to protect. The “constitutional conventions” referred to in s 9(2)(f) are not defined for the very reason that they evolve over time. As the subsection states, it is “the constitutional conventions for the time being” to which the Act applies. Accordingly, the interest which the Act seeks to protect can be difficult to define and may change over time.

2.6 The approach to s 9(2)(f)(iv) and (g)(i) over the past few years has been developed on the basis of each Ombudsman’s experience in investigating and reviewing decisions to withhold information in reliance upon those statutory provisions.

2.7 Although the subsections provide two separate reasons for refusal they are closely related. On a general level, the provisions of the subsections provide protection, where necessary in the public interest, for the internal workings of government. However, their purpose is not so much to protect information as to protect the particular process of government to which the information relates.

2.8 While there is undoubtedly a public interest in disclosure of information relating to the workings of government to promote accountability and participation, the overall public interest is not served by disclosure of information which undermines the ability of government to function effectively and in an orderly manner. On the one hand, s 5 of the Act establishes the principle that all information requested under the Act should be made available unless there is good reason for withholding it and s 4(a) of the Act states one of the purposes of the Act to be to increase progressively the availability of official information to enable New Zealanders to participate more effectively in the making and administration of laws and policies and to promote the accountability of Ministers and officials. On the other hand, while the Act does not specify the extent to which withholding should take place to protect constitutional conventions and the effective conduct of public affairs, the Danks Committee in putting forward the draft legislation said:

“that there should be continuing protection as needs be for the free and frank exchange of views between Ministers and their colleagues, between Ministers and officials, or between other officers of the Government in the course of their duty.”

However, the Committee also said such protection would not always be necessary or may only be needed for a short period.

3. Section 9(2)(f)(iv) & Section 9(2)(g)(i)

3.1 The Act does not identify classes of information which may be withheld. Instead it identifies interests which need to be protected, and where disclosure of information would, in the circumstances of a particular case, prejudice those interests, it provides for the withholding of the information, unless the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available.

3.2 The relevant provisions state:

“(2) Subject to sections 6, 7, 10 and 18 of this Act, this section applies, if, and only if, the withholding of the information is necessary to—
. . .
(f) Maintain the constitutional conventions for the time being which protect—
. . .
(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;”

3.3 Although the interests which s 9(2)(f)(iv) and (g)(i) seek to protect overlap to an extent, on the basis of their experience in investigating and reviewing decisions to withhold information in reliance upon those subsections, each Ombudsman has been able to identify, in general terms, a distinction between the interests which the two subsections seek to protect.

3.4 Section 9(2)(f)(iv)

In general, this subsection is relied upon where the holder’s concerns are about the consideration of advice.

3.5 Section 9(2)(g)(i)

In general, this subsection is relied upon where the holder’s concerns are about the generation of opinions, those opinions frequently becoming the basis upon which advice is given.

3.6 The terms “advice” and “opinion” overlap in meaning, “advice” being frequently understood to mean “opinion given or offered as to action”. However, it is not necessarily limited to that definition. It does also mean “information given” and thus can encompass purely factual information. The issue in considering whether either s 9(2)(f)(iv) or s 9(2)(g)(i) might apply to specific information is therefore not so much one of determining whether the information is “advice” or “opinion” (although that is obviously a relevant starting point), but what has to be addressed is whether disclosure of the specific information would prejudice the interests which those provisions seek to protect.

3.7 Neither advice tendered by Ministers and officials, nor the free and frank expression of opinions by or between or to Ministers of the Crown or members of an organisation always have to be withheld to maintain either the “constitutional convention” or the “effective conduct of public affairs” requiring protection. In commenting on s (9)(2)(f) in its Supplementary Report, the Danks Committee said:

“It should be noted that Cabinet papers are not as a class automatically protected from disclosure.”

In relation to s (9)(2)(g)(i), the Committee said:

“Essentially the subparagraph covers internal and interdepartmental minutes, reports and recommendations, and advice by public servants to Ministers and by Ministers to Cabinet and the Governor-General. Again, such documents are not automatically protected from disclosure. Only if disclosure is likely to inhibit the free and frank expression of opinion and thereby adversely affect the conduct of public affairs may a reason for withholding them under this head exist. Even in that case, it must be weighed against other public interests.”

3.8 There are no absolute rules for assessing when it is necessary to withhold information under s 9(2)(f)(iv) and (g)(i), or when information can be released without undermining the interests which those subsections seek to protect. However, there are a number of questions which an Ombudsman must seek to answer when assessing whether or not disclosure of specific information would prejudice the interests concerned. These include:

(i) What are the concerns which the holder of the information has expressed about disclosure of the information?
(ii) Are those concerns reflected in the interest which the subsection at issue seeks to protect?
(iii) Would disclosure of the information at issue prejudice that interest?
(iv) If so, in what way would that prejudice arise?
(v) What is the evidence to support that conclusion?

3.9 On the basis of experience in investigating and reviewing decisions to withhold information in reliance upon s (9)(2)(f)(iv) and (g)(i), some factors which an Ombudsman may consider as relevant include:

(i) The policy and/or decision-making process to which the information relates;
(ii) Whether the process is completed and, if not, what stage it has reached;
(iii) Whether the information in question is still under consideration and, if not, what decisions have been made in relation to it;
(iv) Whether the concern expressed by the holder of the information relates to the content of the information or to the context in which it was generated or supplied;
(v) The effect which disclosure of the information would have had at the time of the decision on that or any other policy and/or decision-making process;
(vi) The extent to which, if any, the topic in question is already in the public domain.

3.10 There are occasions where s 9(2)(f)(iv) or s 9(2)(g)(i) is relied on to withhold information, when the concerns of the holder relate to interests other than those which the subsections seek to protect. These concerns generally have to do with considerations of a political nature. As the Danks Committee noted in its General Report when discussing “Interests of Effective Government and Administration”:

“The fact that the release of certain information may give rise to criticism or embarrassment of the government is not an adequate reason for withholding it from the public.”

4. Section 9(1)

4.1 Where the requirements of either s 9(2)(f)(iv) or s 9(2)(g)(i) are made out, that is, where it is concluded that the interest which those provisions seek to protect would be prejudiced by the release of the information at issue, consideration must be given by both the decision-maker, and the Ombudsman on review, to whether, in the particular circumstances of the case, there are any countervailing public interest considerations favouring disclosure of the information which outweigh the interest in withholding.

4.2 In cases where there are valid considerations both for and against disclosure of the information at issue, striking a balance between these competing considerations can often be difficult. As noted above, this is reflected in the purposes set out in s 4(a) and (c). On the one hand the purpose of the Act is to promote participation and accountability through the disclosure of official information, and on the other hand its purpose is to protect official information consistent with the public interest and the preservation of personal privacy.

4.3 At the end of the day the Ombudsman’s statutory function is to form an independent opinion on whether or not, in a particular case, the request ought to have been refused. To use the words of Jeffries J in Wyatt Co Ltd v Queenstown Lakes District Council [1991] 2 NZLR 180 at page 191, an Ombudsman is required to:

“exercise his judgment using experience and accumulated knowledge which are his by virtue of the office he holds. Parliament delegated to the . . . Ombudsman tasks, which at times are complex and even agonising, with no expectation that the Courts would sit on his shoulder about those judgments which are essentially balancing exercises involving competing interests. The Courts will only intervene when the . . . Ombudsman is plainly and demonstrably wrong, and not because he preferred one side against another.”

5. Conclusion

5.1 The Act does not protect classes of information. It provides for the protection of information where disclosure would prejudice one of the interests which the Act identifies as requiring protection, unless there is an overriding public interest in disclosure.

5.2 When considering whether or not either s 9(2)(f)(iv) or s 9(2)(g)(i) of the Act might apply to the information at issue, the decision-maker, and the Ombudsman on review, must be satisfied:

(a) that the interests which those provisions seek to protect are clearly established;

(b) that it is necessary to withhold the information to avoid prejudicing those interests;

(c) that there are no overriding public interest considerations which outweigh the need to withhold the information.

5.3 Examples of how the foregoing guidelines have been applied in practice to specific cases can be found in the most recent Compendium of Case Notes of the Ombudsmen.