New Zealand Law Commission
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Recent discussions on the Official Information Act have highlighted the chief executives to be conscious of the value of adequate consultation in deciding whether to release information under the Official Information Act 1982. The following guidelines have therefore been prepared to provide assistance to chief executives in making decisions on whether and when it is appropriate to consult other departments or Ministers of the Crown.
A number of recent requests have related to matters involving controversial government policy decisions and often a single request has involved material which had input from a number of departments. In those cases therefore, consultation with Ministers and other departments was desirable in order to provide a consistent and considered response. Unfortunately this did not always occur and there were occasions when different departments gave different responses to a request for the same information. You will appreciate that this does not reflect well on the Public Service.
The Act recognises departments as entities separate from the Minister in relation to Official Information requests. Section 15(4) requires that the chief executive or his or her delegate must make the decisions on any request to the department. Subsection (5) of that section provides, however, that subsection (4) does not prevent consultation with a Minister or with any other person in reaching a decision on any request. These guidelines are not intended to undermine the legal requirements on the chief executive but rather to suggest the approach that a chief executive should adopt when fulfilling the legal obligation. It remains, of course, a matter for the judgment of the chief executive whether it is necessary in the particular instance to consult.
Nor is it the intention of these guidelines to suggest that proper disclosure of information under the Official Information Act should in any way be avoided. On the contrary it is intended that by following the guidelines information will be released in a manner consistent with one of the purposes of the Official Information Act namely to “promote good government” in New Zealand by providing information to the public:
(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. (Section 4).
Consultation is necessary for the following reasons:
(a) At the most basic level as a matter of courtesy to the department which provided input.
(b) To make the other department aware of the request and of your proposed decision on that report because in some cases another department may be in a better position to assess whether or how certain information should be released.
(c) To check whether similar requests have been made of other departments so that consultation and co-ordination can occur to ensure that a proper stance taken by one department is not undermined due to the actions of another department of whom a similar request has been made.
1 Consultation with other departments should normally occur:
(a) When a joint working party has produced some or all of the information which is the subject of the request.
(b) When another department than the one receiving the request has provided substantial or critical input into the information requested, for example, Cabinet papers often contain advice specifically proffered by another department.
(c) When the information sought contains material that relates to the activities of another department or that may result in publicity for another department.
(Where the situation in either para (b) or para (c) occurs there may well be good grounds for transferring the request to that other department - refer part C).
2 The Official Information Act has not removed the duty on a public servant to keep the Minister fully informed on all relevant matters. It is important to consult with Ministers where release is likely to lead to public comment on a political issue. (Such a step should be second nature to senior public servants.) Consultation over an Official Information request gives a Minister an opportunity to comment on any political issues or matters relating to government management. Examples of situations where it would be appropriate to consult with a Minister are:
(a) requests from the Opposition, the Opposition Research Unit, recognised interest groups or the news media especially where the information is particularly sensitive;
(b) where the subject matter is controversial and likely to lead to questions of Ministers;
(c) where facts, opinions or recommendations in the information are especially quotable or unexpected;
(d) where the information reveals important differences of opinion among Ministers or agencies.
There is no special procedure for consulting with a Minister or another department regarding an official information request. Departments may wish to develop their own procedures for such consultation.
Attention is drawn to the statutory time limit requirements:
(a) Section 14, which requires transfers of requests to be made “promptly, and in any case not later than 10 working days after the day on which the request is received” and to inform the requester accordingly;
(b) Section 15, which requires that decisions on requests be made “as soon as reasonably practicable and in any case not later than 20 working days after the day on which the request is received”;
(c) Section 15A, which provides for the extension of the above time limits, and that any such extension must be notified to the requester within 20 working days after the day on which the request is received.
1 Once due consideration has been given to the advice of another department or Minister that there is good reason to withhold information the department must decide whether to release the information, to decline the request, or to transfer the request under s 14. Different decisions can be made in respect of the particular pieces of information that have been requested.
If it is decided nevertheless to release the information the department or Minister whose advice is being overridden should be given reasonable notice prior to the release. [A week is suggested as the minimum.]
2 It should be noted that in some cases a Minister’s advice that there is good reason to withhold information could indicate that the request should be transferred to Minister for response, in terms of s 14(b)(ii). The basis for the transfer would be that the information is more closely connected to the functions of the Minister. Such a step would reflect the constitutional relationship between the chief executive to the Minister and would also meet the requirements of the Official Information Act.
In general it will be clear when it is appropriate to transfer a request for official information under s 14. There will however be some situations when a judgment will be called for.
(NB Only 10 working days from the date of receipt of the request are given for such transfers.)
Some examples are:
(a) Where a document held by the department was prepared by another department. The request as it refers to that document could be transferred to the department that prepared the document.
(b) Where the department holds a document produced for an official’s committee which was chaired by another department. The request as it relates to the document could be transferred to that other department.
(c) Where during consultations another department or a Minister considers there is good reason to withhold information which the department receiving the request is not as well placed to judge.
(d) Requests from the Opposition, Opposition Research Unit or recognised interest groups might be transferred to the appropriate Minister after consultation with the Official Information Act representative in that Minister’s office.
Some departments have found that information properly released under the Official Information Act has subsequently been publicised as a “leak”. To minimise this happening it is suggested that the information can be photocopied on special paper, marked “RELEASED UNDER THE OFFICIAL INFORMATION ACT”. This paper is available from the Government Printer.
Ministers have put into place a procedure for co-ordinating Official Information requests addressed to Ministers. A copy is attached.
If you have any queries about the guidelines please contact Ann Aspey of the Commission’s Legal Division.
D K Hunn
State Services Commissioner