NZ Council for Civil Liberties

Secrecy clauses that override the Official Information Act

Published · Updated

Submission to the Ministry of Justice on Commitment 7 of New Zealand’s 2023-24 Open Government Partnership National Action Plan

17 March 2024

Introduction

  1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit, organisation which advocates to promote human rights and maintain civil liberties.
  1. Commitment 7’s existence in New Zealand’s 4th National Action Plan as a member of the Open Government Partnership is a direct result of our briefing on the issue of secrecy clauses to the then Minister for the Public Service in December 2021.1Open Government Partnership: Summer Reading from Civil Society, Appendix part G, 6 December 2021. https://nzccl.org.nz/wp-content/uploads/Civil-Society-OGP-Briefing-Minister-Hipkins-Dec-2021.pdf
  1. In this submission we deal first with the shortcomings of the Ministry’s consultation process on this issue, and then with the substantive matter of secrecy clauses.

Deeply flawed consultation process

  1. While the Council is pleased that the Ministry is doing work on this commitment, we are appalled by the deeply flawed approach it has taken to consulting anyone outside government about this issue.
  1. The following are reasons why the Ministry should have been consulting the public, rather than five organisations whose names it obtained from the Public Service Commission:
    • How government departments develop policy and legislative proposals to achieve policy goals, and how our rights interact with those proposals, are matters of profound public interest in a democratic system. Aotearoa is not an oligarchy or dictatorship where those in power determine who should be able to comment on matters of public interest;
    • As the High Court recognised in 1988, and successive Ombudsmen have been at pains to repeat since then, the Official Information Act (OIA) is legislation of a constitutional nature;2Commissioner of Police v Ombudsman [1988] 1 NZLR 385
    • Section 14 of the New Zealand Bill of Rights Act 1990 sets out everyone’s fundamental right to seek, receive and impart information, and is the translation into New Zealand’s domestic law of Article 19 of both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.3Universal Declaration of Human Rights, United Nations, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights
      International Covenant on Civil and Political Rights, United Nations, 1966. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights       The OIA is part of how those rights are given practical effect and consequently secrecy clauses are limitations on those rights;
    • The Ministry’s work on this topic is because it notionally administers the OIA and this is policy work that affects how that law operates. The OIA itself sets out that one of its purposes is “to increase progressively the availability of official information to the people of New Zealand in order to enable their more effective participation in the making and administration of laws and policies”. The OIA also sets out the principle of availability, and limiting the availability of the consultation paper to only five civil society organisations is not consistent with that principle nor any of the Act’s reasons for departure from that principle;
    • Section 11 of the Public Service Act 2020 states that the purpose of the public service is to “facilitate active citizenship” and section 12 says that in order to achieve that purpose the heads of government departments have a statutory duty to “foster a culture of open government”. Section 16 of the Act sets out the ‘public service values’, one of which is to be “trustworthy” and that departments and officials should “act with integrity and be open and transparent”. Participation by the public is a core aspect of ‘open government’;
    • The Ministry’s work is undertaken to deliver an Open Government Partnership (OGP) commitment and the fundamental ethos of the OGP is that public participation leads to better public policy; and
    • The Ministry is intrinsically unlikely to be able to in theory, and has demonstrated that it cannot in practice, identify all those who would be interested in providing comments on the issue of secrecy clauses and therefore was creating unnecessary risks to the quality of its own work on this topic by limiting who it consulted to those organisations whose names it obtained from the Public Service Commission.
  1. The Ministry’s apparent inability to recognise and act on these factors raises significant questions about its competence, not least to administer the OIA, but also to its commitment to the values set out in that legislation, the NZ Bill of Rights Act, the Public Service Act, and to government policy on public participation. It is simply not good enough to say to the Council “We wrote and shared the paper with the intention of gathering input from the five civil society organisations involved with Commitment 7.” The Ministry’s confirmation to the Council that it has not sent the paper to “government or parliamentary agencies” seems to suggest that it has also not asked the Ombudsman for comments.4Ministry of Justice email to the Council’s Deputy Chair, 28 February 2024.
  1. At the PSC-organised hui on 5 December 2023, for agencies to report back to civil society organisations on progress with the commitments, the MOJ representative set out its plan to only undertake ‘targeted engagement’ as part of its work on Commitment 7. The NZCCL representative in the meeting strongly urged the Ministry to reconsider this approach, and to consult the public. The Ministry representative said the Ministry would consider the Council’s advice. Did it in fact consider public consultation following this hui? If so, what factors led the Ministry to believe that ‘targeted engagement’ with five organisations was appropriate for this topic?
  1. In comments to Newsroom for an article published on 8 March 2024, the Ministry’s General Manager for Civil and Constitutional Policy stated that ‘the ministry “expect[ed] that civil society organisations will involve their wider networks as part of their input to the engagement process.”’5Govt’s shadowy work on secrecy clauses criticised, Sam Sachdeva, Newsroom, 8 March 2024. https://newsroom.co.nz/2024/03/08/govts-shadowy-work-on-secrecy-clauses-criticised/ This is disingenuous buck-passing that is unworthy of the Ministry and the relevant General Manager. If the Ministry had intended the Council and other consultees to ‘involve their wider networks’ it should have explicitly stated this expectation in its emails to us of 23, 26 and 28 February 2024. No such statement was included in these emails. Abdication by the Ministry of its responsibilities, and then trying to shift this work on to the consultees is unacceptable and certainly not compliant with the spirit either ‘of service’ or the duty to foster a culture of open government set out in the Public Service Act, or the participatory purpose of the OIA nor the OGP. It is inimical to building trust in government.
  1. Providing a three week period for responses to its consultation document further indicates the Ministry’s unfamiliarity with good consultation practices, as well as undermining the honesty of its statement to Newsroom on consultees “involving their wider networks”. The executive committees of civil society organisations, like many committees of officials within government departments, usually meet on a monthly basis. A three week response period indicates the Ministry is either unthinking about the needs of its consultees to have time both to draft a response and then have it approved by its executive committee, or that some reason for urgency exists which suggests consultees should be asked to short-circuit their normal processes. If the latter is the case, no reason for a short consultation period and a request to short-circuit normal good governance processes was contained in the Ministry’s email to us of 23 February 2024.
  1. The foregoing, along with its inherent conflict of interest as the administering department of the Official Information Act, also mean that the Ministry of Justice is a wholly inappropriate body to carry out the review of the OIA that the government is committed to undertaking. The review should be conducted independently, as were the Independent Electoral Review and the Review into the Future for Local Government.

Flawed consultation paper

Scope of commitment not agreed with civil society

  1. In the section describing Commitment 7, paragraph 10 of the consultation paper states that “during the formation of Commitment 7 it was agreed that the following matters were out of scope:” (emphasis added). The use of the passive ‘it was agreed’, following paragraph 5’s description of how commitments are developed, implies that civil society organisations including NZCCL were party to the agreement that the matters listed by the Ministry were ‘out of scope’. Nothing could be further from the truth. The Ministry of Justice did not engage in discussions with the civil society or Council about the scope of Commitment 7, so it is disingenuous of it to suggest that the scope of the commitment was agreed with it or broader civil society. In reality, the Ministry decided the scope of the commitment in agreement with the Public Service Commission.

No evaluation of existing scrutiny mechanisms

  1. Milestone 1 of Commitment 7 states that the Ministry would:

Review current legislative processes and guidance in relation to the scrutiny of legislative clauses that propose to override the presumption of disclosure under the Official Information Act 1982

  1. The Council would expect that any consultation paper following such a review would present the text of the existing guidance and processes, along with an evaluation of how they have been functioning in practice.
  1. The consultation paper not only fails to provide any such evaluation, but also fails to provide any existing guidance held by the Ministry of Justice on how its officials should evaluate proposals by government departments for secrecy clauses in legislation they are preparing.
  1. No such guidance for MOJ officials is presented in the table set out on pages 7-8 of the consultation paper, and the Council notes the use of the qualification “Some of the different mechanisms available are outlined below:” in paragraph 18 preceding the table. If this is meant to explain the absence of MOJ guidance in the consultation paper, its lack of transparency is disturbing.
  1. Perhaps the Ministry has no such guidance for its officials. This would be worrying, since the entry in the table for the Cabinet Guide is explicit that it is ‘mandatory’ for departments to consult the Ministry on proposals to ensure consistency with the New Zealand Bill of Rights Act, the Human Rights Act and the Privacy Act; and on proposals that would create new offices, infringements or penalties, or alter the jurisdiction and workload of courts, or access to court information. Presumably guidance for Ministry officials exists to guide evaluation of proposals when they are consulted on these?
  1. The absence of the Official Information Act in that Cabinet Guide list of legislation indicates that DPMC and the Ministry have no specific provision requiring departments to consult the Ministry on provisions that would impact either the OIA or the Local Government Official Information and Meetings Act (LGOIMA).
  1. We are left to assume that when other departments consult the Ombudsmen in line with paragraph 8.41 of the Cabinet Manual, the Ministry are at least copied in, as the administrators of the Ombudsmen Act 1975 and the OIA. Perhaps this is what supports the statement in Commitment 7 itself that “It is also the Ministry of Justice’s (MoJ) role, for example, to provide advice on Bills that interface with the OIA.” If this is the case, is the Ministry suggesting that the absence of any guidance on how to evaluate proposals for secrecy clauses is because they ‘outsource’ all such evaluation to the Ombudsmen? This would appear to be a substantially flawed approach, leaving the Ministry dependent on the Ombudsmen and often vice-versa. In the absence of the consultation paper providing any evaluation of how the existing ‘system’ of scrutiny is working, we are left to rely upon other evidence.

Absence of evidence and evidence of absence

  1. The consultation paper states that the Ministry carried out some research on withholding clauses, and provides a summary of that in the appendix. However, paragraph 2 of the appendix states in relation to the purpose of the research that:

“The Ministry wanted to know why lawmakers have considered additional protections are needed to limit when official information can be disclosed. The Ministry also wanted to know how publicly available information is on the rationale for any such exemptions.”

  1. In other words, the research (the summary of which doesn’t even list which 11 pieces of legislation were selected for review) does not examine how well the existing scrutiny mechanisms are functioning, a significant departure from milestone 1 of Commitment 7.
  1. One source of evidence for how well the ‘system’ is working are the Ombudsmen’s submissions to select committees on Bills. It is unclear whether the Ministry has reviewed these.
  1. An example of an Ombudsman submission to a select committee that indicates the existing ‘system’ is not working is that on the Data and Statistics Bill. The Council’s own submission to the select committee noted that the Cabinet papers on development of the proposals indicated that the Ombudsman had not been consulted.6NZCCL submission to the Governance and Administration Select Committee on the Data and Statistics Bill, 9 February 2022, paragraph 35. https://www.parliament.nz/en/pb/sc/submissions-and-advice/document/53SCGA_EVI_116197_GA20890/new-zealand-council-for-civil-liberties Probably as a result of not being consulted, the Ombudsman’s submission notes not only that his office was improperly categorised as an agency that Statistics NZ could compel data from – such that it would ‘significantly undermine’ his independence – but also that Part 5 of the Bill ousted the OIA by disapplying it to data that Statistics NZ held. The Ombudsman concludes:7Ombudsman submission to the Governance and Administration Select Committee on the Data and Statistics Bill, 22 December 2021. https://www.parliament.nz/en/pb/sc/submissions-and-advice/document/53SCGA_EVI_116197_GA20878/chief-ombudsman

Consequently, I suggest the removal of Part 5 of the Bill. It will further complicate and confuse would-be researchers about which regime to use, in circumstances where the OIA already strikes an appropriate balance between access and protection.

  1. Part 5 of the Bill was not removed by the select committee or government, so there is now an entirely separate regime for access to official statistical data than the OIA, one which has no independent mechanism to investigate complaints about refusal to grant access to that data.
  1. The Council suggests that as part of evaluating whether the existing ‘system’ is working well, the Ministry should review the Cabinet papers for legislation containing secrecy clauses, to establish whether the Cabinet Manual was complied with and the Ombudsman consulted during development of policy and legislation. It could also seek the Ombudsman’s views on this issue, as the Ombudsman is likely to have noted when he was not consulted on legislative proposals that impinge on the OIA and LGOIMA.
  1. Other documents to review for how well the existing system is working are Departmental Disclosure Statements, and the vetting of bills for compliance with the New Zealand Bill of Rights Act.

Departmental Disclosure Statements

  1. Departmental Disclosure Statements seem to be a weak form of scrutiny. Only two out of the last 20 enactments containing secrecy clauses contained a detailed discussion of them.8The Local Government Official Information and Meetings Amendment Act 2023 and the Inspector-General of Defence Act 2023. Four others discussed the clauses but did not examine their impact on the OIA.9Commerce Amendment Act 2022, Income Insurance Scheme (Enabling Development) Act 2022, Worker Protection (Migrant and Other Employees) Act 2023, Therapeutic Products Act 2023. None of these four bills mentioned secrecy in response to question 4.9 as the Ministry’s consultation paper suggests they should. The majority of bills with secrecy clauses in them – 14 out of 20 – did not have Departmental Disclosure Statements that considered them at all. We therefore cannot rely on these Statements as a means to alert MPs or the public to proposals that limit their right to information.

New Zealand Bill of Rights Act vetting

  1. The vetting of bills for compliance with the New Zealand Bill of Rights Act is even more problematic.
  1. As noted previously, section 14 of the New Zealand Bill of Rights Act 1990 sets out everyone’s fundamental right to seek, receive and impart information. This is the translation into New Zealand’s domestic law of Article 19 of the both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.10Universal Declaration of Human Rights, United Nations, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights
    International Covenant on Civil and Political Rights, United Nations, 1966. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
  1. The OIA is therefore a cornerstone element in how those Article 19 and section 14 rights are given practical effect for people in Aotearoa.
  1. This is not just the Council’s view. There is now widespread agreement in international human rights fora that laws such as the OIA are key tools in giving practical, usable, effect to the rights described in Article 19. For example:
  • The December 2004 joint declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression includes the following statements:11International Mechanisms for Promoting Freedom of Expression JOINT DECLARATION By the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression. 6 December 2004. https://www.osce.org/files/f/documents/6/f/38632.pdf
    • The right to access information held by public authorities is a fundamental human right which should be given effect at the national level through comprehensive legislation (for example Freedom of Information Acts) based on the principle of maximum disclosure, establishing a presumption that all information is accessible subject only to a narrow system of exceptions.
    • The access to information law should, to the extent of any inconsistency, prevail over other legislation.
    • Urgent steps should be taken to review and, as necessary, repeal or amend, legislation restricting access to information to bring it into line with international standards in this area, including as reflected in this Joint Declaration.
  • The United Nations Human Rights Committee stated in its 102nd session in July 2011 that:12Human Rights Committee (102nd session, Geneva, 11-29 July 2011) General comment No. 34: Article 19: Freedoms of opinion and expression. CCPR/C/GC/34 https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf
    • Article 19, paragraph 2 embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production.
  • The January 2022 report of the Office of the United Nations High Commissioner for Human Rights to the 49th session of the Human Rights Council states:13Human Rights Council (49th session 28 February–1 April 2022) Annual report of the United Nations High Commissioner for Human Rights, Freedom of opinion and expression. A/HRC/49/38. https://undocs.org/en/A/HRC/49/38
    • The right of access to information is recognized in international human rights law. Article 19 of the International Covenant on Civil and Political Rights, echoing article 19 of the Universal Declaration of Human Rights, protects everyone’s right to seek, receive and impart information of all kinds. States have the obligation to respect and ensure the right of access to information to everyone within their jurisdiction without distinction of any kind. States must take all necessary measures, legislative and otherwise, to give effect to human rights within their domestic systems. The right of access to information covers information held by public authorities. As highlighted by the Human Rights Committee, the obligation applies to all branches of government and may include other entities carrying out public functions. The right applies irrespective of the content of the information and the manner in which it is stored.
    • The right in article 19 (2) of the International Covenant on Civil and Political Rights may be restricted in accordance with the requirements provided in article 19 (3). That is, any restrictions must be provided by law, on grounds specified in article 19 (3), and be necessary and proportionate. In addition, restrictions shall not be discriminatory. The State restricting the right of access to information must demonstrate that the restriction is compatible with the aforementioned conditions.
    • The right of access to information is also enshrined in other international and regional human rights treaties. The Convention on the Rights of the Child, in article 13, reaffirms that the right of access to information applies to children. The Convention on the Rights of Persons with Disabilities sets forth a general principle on accessibility in articles 3 (f) and 9, and includes specific obligations concerning the right of access to information in its article 21.
  1. From the citations above, it is particularly worth noting the second of the bullet points in the quote from the January 2022 report of the UN High Commissioner for Human Rights: “any restrictions [on the right to information] must be provided by law, on grounds specified in article 19(3), and be necessary and proportionate.” The state must also “demonstrate that the restriction is compatible with the aforementioned conditions.”
  1. This is what we see in the tests developed in Aotearoa for legislative provisions that limit the other rights set out in the New Zealand Bill of Rights Act; any such restriction must meet the ‘justified limitation’ test of:
    • Advancing an important public objective;
    • Being rationally connected to that objective;
    • Impairing the right no more than is reasonably necessary; and
    • Being in due proportion to the importance of the objective.
  1. On this basis, we should be able to expect that every bill which contains proposals to limit access to information would be assessed against the ‘justified limitation’ test in relation section 14 of Bill of Rights Act.
  1. However, only one bill we have located has received a Bill of Rights Act vet that considers the secrecy clause against section 14 of that Act – that leading to the Civil Aviation Act 2023. The fact that it is the only assessment we have found indicates to us that it is an aberration from the normal policy of the Ministry. The consultation paper is silent on this issue, and we are at a loss to understand why.
  1. Section 198 of the 2023 Act clearly limits our section 14 Bill of Rights Act right to seek and receive information. Paragraphs 26-30 of the Attorney General’s NZBORA Section 7 Compliance report (section 7 report) purport to justify this limitation but fail to consider whether the existing withholding grounds in the OIA provide sufficient protection for the interests at stake.14Removed from the Ministry of Justice website, but accessible from: https://web.archive.org/web/20211022065838/https://www.justice.govt.nz/assets/Documents/Publications/20210729-NZ-BORA-Advice-Civil-Aviation-Bill.pdf
  1. What is really going on here is that the Government did not want to allow for any possibility that, while the application for authorisation of air carriage was being considered by the Minister (and up to 20 working days afterwards), the Ombudsman might find the public interest in disclosure outweighed that in withholding the information.
  1. This, unfortunately, seems to be a common feature of many of the secrecy clauses the Council has encountered.
  1. The failure to assess secrecy clauses against the NZ Bill of Rights Act tests cannot be accidental. It must be a matter of policy or interpretation by government officials, and we have found no explanation as to why they do not consistently assess secrecy clauses using the normal ‘justified limitation’ tests that would surely acknowledge the existing protections set out in the OIA and LGOIMA. The Ministry’s work on Commitment 7 must openly interrogate the policy stance of its own officials on this respect, and test the reasons relied upon by officials not to conduct assessments of secrecy clauses.
  1. This failure is particularly significant given the importance of these vetting exercises and the prominence of the documents that attracts scrutiny by Members of Parliament, journalists and lawyers.
  1. The Council is confident that if all secrecy clauses were properly assessed for whether their limitation on section 14 of the Bill of Rights Act were justified and necessary, we would see far fewer such clauses making their way into legislative proposals, let alone on to the statute book.

Failure to set out standards against which to consider secrecy proposals

  1. The most significant methodological failure of the consultation document is that it does not contain any reference to standards or principles which could guide officials when considering arguments for secrecy clauses.
  1. The Ombudsman’s submission to the select committee on the Civil Aviation Bill sets out why the government should be applying tests. After pointing out another common feature of secrecy clauses – they lazily reproduce secrecy clauses from legislation that predates the OIA – the Ombudsman states:15Ombudsman submission to the Transport and Infrastructure Committee on the Civil Aviation Bill, 26 November 2021. Footnotes omitted. https://www.parliament.nz/en/pb/sc/submissions-and-advice/document/53SCTI_EVI_115765_TI2218/chief-ombudsman

Successive Ombudsmen have considered draft legislation containing clauses which seek to oust, suspend or otherwise limit the application of the OIA, and have consistently observed:

  • The courts have long recognised the OIA as being ‘constitutional’ in nature. In addition, the OIA is one of the vehicles by which New Zealanders may exercise their fundamental freedom to seek and receive information, as enshrined in section 14 of the New Zealand Bill of Rights Act 1990. It follows that the application of the OIA, as a constitutional measure which reflects fundamental freedoms, should not be curtailed lightly.
  • The Legislation Design and Advisory Committee’s Legislation Guidelines state:

All public bodies should be subject to the Ombudsmen Act 1975, the Public Audit Act 2001, the Public Records Act 2005, and the Official Information Act 1982 (or the Local Government Official Information and Meetings Act 1987).

The Acts discussed in this section are key mechanisms by which government bodies are held accountable for their activities. They should apply to all new bodies and existing bodies unless there are compelling reasons for them not to… [emphasis added].

  • Where it is proposed that Parliament legislate for a specific class of information to be exempt from the application of the OIA, there ought to be a substantive and principled justification, with express consideration of the impact on the constitutional right to information. This is particularly relevant where, as is the case here, there already appears to be grounds within the OIA capable of protecting the relevant interests.

In circumstances where the OIA already appears to protect the interests identified within the Bill as warranting protection, there does not seem to be a sufficient justification from creating an exemption, even a limited and time-bound one, from the OIA regime. The Chief Ombudsman therefore would suggest removing clause 199 from the Bill.

  1. Without clearly defined standards or principles any guidelines and scrutiny mechanisms will be next to useless. What are proposed secrecy clauses being scrutinised against?
  1. The Bill of Rights Act tests work well, mostly, because they have developed through statute and case law over the last three decades. In contrast, none of the documents listed in pages 7-8 of the consultation paper, nor those in the proposals set out on pages 9-10, set out any tools for recognising when a proposed secrecy clause infringes the right to freedom of information, let alone whether it might be justified.
  1. The Council believes key principles should be set out to guide officials considering whether a secrecy clauses are needed:
  • The right to seek, receive and impart information is set out in international human rights law (UDHR and ICCPR) that New Zealand has signed and ratified. Section 14 of the New Zealand Bill of Rights Act 1990 gives domestic effect to the relevant aspect of these instruments, and the Official Information Act 1982 and Local Government Official Information and Meetings Act 1987 make these aspects of the section 14 rights practically usable by people. Consequently, any legal provision which would limit the scope of, or the rights in the OIA, LGOIMA and section 14 of the Bill of Rights Act must be considered in relation to the well-established tests for departing from such rights.
  • The OIA and LGOIMA are important pieces of constitutional legislation and the courts have recognised them as such. There are good reasons for openness and it has been the policy for all governments since these laws were enacted for this to be the norm.
  • There are already reasons set out in the OIA and LGOIMA where it is permissible to depart from the principle of availability of official information. These are far-reaching and have proved workable in almost all situations.
  • Government agencies, the Ombudsmen and courts each have their role to play under these laws. The Ombudsmen and courts can and should be trusted to correctly perform their statutory roles in applying and interpreting the official information legislation, including the withholding grounds. This includes giving appropriate weight to the public interest in release of information. It is not the job of government agencies to doubt the capability of the Ombudsmen or courts to perform their interpretation functions adequately.16The courts are referenced here because section 34 of the OIA makes clear that a requester may appeal the original refusal decision to the courts after an Ombudsman has completed their investigation. An example of this is Kelsey v Minister of Trade [2015] NZHC 2497.
  • Where there are already reasons for withholding information set out in the OIA and LGOIMA, there is no justification for additional secrecy. ‘Giving assurance to those who are required to supply information to government’ is not a good reason to go beyond the existing withholding grounds set out in the OIA and LGOIMA.
  • Any further secrecy (whether removing information or an agency from the scope of the OIA or LGOIMA) that can meet the previous tests must be as narrowly drafted as possible to ensure the least possible infringement of the right to information. The policy objective must be clearly identified and described.
  • Secrecy clauses that include provision for criminal offences for unauthorised disclosure should be the rare exception and only included in extreme cases. These must be consistent with the safeguards and penalties found in section 20A of the Summary Offences Act 1981, including the requirement that prosecution needs the consent of the Attorney-General.
  • That accompanying any secrecy clause included in a legislative proposal is a requirement in the law for the Ministry of Justice to conduct regular reviews of whether the provision is necessary.
  1. In addition to these principles, the Council believes a key process step is necessary. While it may be the expectation that government agencies consult the Ministry on proposed secrecy provisions, and the Ministry then consults the Ombudsmen, at present this all takes place behind closed doors. The public is unaware of such consultation until a Cabinet paper is voluntarily published by a Minister or a Regulatory Impact Statement is published when a Bill is introduced to the House. This is wholly inadequate, and must be strengthened by the publication of the Ministry’s correspondence to the Ombudsmen seeking their views on the secrecy proposal, and the Ombudsmen’s reply. This correspondence must be published within a week of the Ombudsmen’s reply. The process should be drafted broadly enough so that it captures circumstances where another government agency besides the Ministry seeks the Ombudsman’s views on a secrecy provision. Doing this will not only contribute to achievement of the participation and accountability purposes of the OIA, but also to the ‘active citizenship’ purpose and ‘foster a culture of open government’ duty in the Public Service Act, and the legitimate expectations the public has due to the country being a member of the Open Government Partnership.

Failure to consider previous work on this subject

  1. In its agreement with the Public Service Commission on the scope of Commitment 7 the Ministry ruled out a key aspect of what the Council sought to be achieved as a result of the current National Action Plan. This was a review of the existing secrecy clauses, to determine which should be repealed or amended.
  1. As we noted in our December 2021 briefing to the Minister for the Public Service, such a review was previously conducted by the Information Authority, established in Part 6 of the OIA when it was enacted.
  1. The Ministry’s consultation document makes no reference to the work of the Information Authority, nor to the Committee on Official Information (also known as the Danks Committee after the name of its chairman).
  1. In its first report, of December 1980, the Committee on Official Information addressed the creation of new secrecy clauses to override the OIA:17Committee on Official Information, Towards Open Government, General Report, December 1980. Accessed from: https://www.ombudsman.parliament.nz/resources/towards-open-government-danks-report

90.  As we have already mentioned there are, aside from the Official Secrets Act, many other statutes which provide protection for specific areas of information as well as sanctions for unauthorised disclosure. It is not uncommon for protection clauses to be included in new enactments. One result the Committee would not wish to see arising from the changes recommended in this report, would be a rash of new protective measures. This would, we consider, seriously undermine the Government’s intention and we hope it can be resisted. The compatibility of protection accorded by existing statutes with the proposals we are developing should be reviewed in due course. This review will be part of the work programme of the new machinery we are proposing.
[emphasis in the original]

  1. The Committee followed up on this in its Supplementary Report of July 1981. We have reproduced several paragraphs for ease of subsequent reference:18Committee on Official Information, Towards Open Government, Supplementary Report, July 1981. Accessed from: https://www.ombudsman.parliament.nz/resources/towards-open-government-danks-report

Criminal Sanctions Protecting Particular Types of Information

5.60  There is a large number of specific statutory provisions requiring that certain official information be kept confidential. Appendix 4 sets out a list of most of these. We have not examined the provisions in detail and have received little information about their operation. We do, however, record one general conclusion based on submissions and on interviews, and we make one comment. We also explain why we have not proposed any immediate or sweeping action to repeal or modify these provisions. We then go on to note the questions which such provisions raise. We have already said that the compatibility of the protection they accord with the proposed legislation should be reviewed in due course (General Report paragraph 90) that would be a task for the Information Authority (see clause 37(2)(c) of the draft Bill).

5.61  The conclusion is that no departments would require additional specific criminal sanctions in the event of the general provisions in the Official Secrets Act 1951 being drastically narrowed. (Our findings about that Act set out in paragraphs 80-83 of the General Report might be recalled here.) The comment is that we would be concerned if the narrowing of those general prohibitions led to arguments for the creation of new specific offences. That would fly in the face of the general tenor of the proposals and would not be justified by any evidence or argument presented to us. We would also be concerned if overbroad and unjustifiable prohibitions which are found not to be compatible with our overall proposals stayed on the statute book.

5.62  We do not propose the wholesale repeal or amendment of this long list of prohibitory provisions for two broad reasons: one of substance, the other of process. The substantive point is that these provisions, at least in many cases, protect interests which sometimes justify the withholding of information, e.g., the protection of law and order, individual privacy, the protection of sources, and proper commercial confidences. This will appear from a reading of the legislation and from the following paragraph. The process point is that we do not consider that a simple overall view can be adopted and implemented. As generally in the wider field of official information, so too in the narrower one of criminal sanction, judgments have to be made taking account of the basic principles of openness and of the balance of competing factors applying in the particular area of public administration. We are certainly not in a position to make all the specific determinations called for. We are not alone in this. We note that overseas proposals and legislation in general protect existing legislation, although sometimes with some limits and sometimes with provision for review by Parliament.

5.63  The provisions set out in the list of statutory- prohibitions (appendix 4) suggest a range of questions that might be considered in the review of the existing provisions which, it is proposed, the Information Authority should carry out.

  1. Is a specific statutory prohibition or restriction needed? We note that in some quite sensitive areas-such as constitutional and citizenship matters administered by the Department of Internal Affairs or the extensive operations of the Ministry of Works and Development – there are no specific provisions making wrongful disclosure an offence. It may be that some provisions in other departmental statutes have been carried forward without specific review. By contrast, some recent statutes provide examples of carefully thought through and debated confidentiality provisions.
  1. If a specific provision is needed, must its breach be an offence? It maybe that many of the provisions in the list are not backed by criminal sanction. (Our uncertainty results principally from the uncertain application of section 107 of the Crimes Act 1961 which provides for a general criminal penalty for the breach of statutory obligations.) Such a provision has an effect of its own force on those subject to it. It may also be capable of enforcement in civil proceedings. And it has behind it the other formal and informal sanctions mentioned earlier (paragraphs 5.22-5.24). It may be useful in answering this question and that under (1) above to have regard to the parallel situation – if there is one – in the private sector. So in that sector important commercial interests are protected by contract, civil action and discipline within the firm rather than by legislation and criminal prosecution. But is discipline in that case a more real sanction than in the public sector?
  1. What is the interest to be protected? Is it a sufficiently good reason to justify the additional protection of, first, a specific statutory provision and, second, a criminal sanction? Among those interests reflected in the list are (a) the concern for a continued flow of information from regulated and licensed industries, from informers, and from those, such as taxpayers, who may be the sole source of the relevant information; (b) the protection of privacy; (c) the protection of some trade secrets; and (d) the protection of defence interests and police and prison security. In some circumstances a wide executive power to require the citizen to provide information might be justified by strict limits, enforced by the criminal law, being placed on the use to which that information can be put.
  1. Should the prohibition be subject to waiver by the executive, usually the Minister? In some circumstances (e.g., census information) the interest protected is such that the protection has to be absolute. But, as the list shows, in many cases it has been thought appropriate to allow such relaxation. If so, how should that discretion be worded? (See also (7) below).
  1. What other limits are there on the prohibition? In some cases it will be appropriate to allow the individual involved to waive the prohibition. In some cases there can be disclosure “for the purposes of the Act”. Will the effect of that always be clear? Is it always clear whether information can be disclosed elsewhere within the public service? Does the prohibition prevent court access to the information for the purposes of matters before it? Should information which is already in the public domain be caught? Sometimes such questions will be answered clearly by the statute, in others they have been the subject of litigation. Ideally the legislation should resolve these questions.
  1. Which individuals should be subject to the prohibition and any criminal sanction? If only public servants are to be or can be so subject, the need for the legislation might be more seriously questioned: they are already subject to the controls discussed earlier. But in some cases others might be involved in unlawful disclosure and might appropriately be subject to prosecution.
  1. How precisely is the protected information defined? How is any discretion to release it worded? As overseas reports and legislation suggest, a broad prohibition accompanied by a broad discretion is undesirable. It amounts, within the particular area of administration, to a system which involves secrecy with disclosure at the absolute discretion of the organisation. Our general approach leads us to oppose this system.
  1. How should any requirements of intention and knowledge be worded?
  1. What is the appropriate penalty?
  1. While the Committee’s report predates the New Zealand Bill of Rights Act by almost a decade, it is useful to see the overlap between the tests proposed by it and the requirements for justifying a limit on Bill of Rights Act rights now.
  1. The Ministry’s consultation document also makes no reference to the Law Commission’s 2012 review of the official information legislation, The Public’s Right to Know.19The Public’s Right to Know: Review of the Official Information Legislation. Law Commission. (NZLC R125, 2012) https://www.lawcom.govt.nz/our-work/official-information-act-1982-and-local-government-official-information-act-1987/tab/report
  1. Chapter 13 of that report considers oversight of the official information legislation, including secrecy clauses. The Commission made the following recommendations:

R107 The OIA and LGOIMA should include the following functions so as to provide leadership and whole-of-government oversight, and to promote the purposes of the legislation: policy advice; review; statistical oversight; promotion of best practice; oversight of training; oversight of requester guidance and annual reporting.

R108 The policy advice function should cover all official information related policies and legislation and should include:

  • co-ordinating official information policy and practice with other government information management and pro-active information release policies;
  • advising on the regulation of official information as appropriate and as referred by government;
  • advising on official information aspects of new legislation and the establishment of new public agencies; and
  • advising on any matter affecting the operation of the official information legislation.

R109 The operational review function should include:

  • receiving and investigating complaints about the operation of the legislation;
  • reviewing agency practice in relation to certain aspects of the legislation;
  • undertaking a five year review of the operation of the official information legislation, aligned with reviews of the Privacy Act 1993 and the Public Records Act 2005.
  1. The Commission concluded its chapter by stating that the current fragmentary systems were not working in relation to the long term health of the official information legislation, and that a single, permanent, oversight body should be established for the policy advice and operational review functions (paragraph 13.120).
  1. The then government rejected the Commission’s recommendations. In its cursory response, it stated in relation to Chapter 13:20Government Response to Law Commission Report on The Public’s Right to Know: Review of the Official Information Legislation. Presented to the House of Representatives 4 February 2013. Accessed from: https://www.lawcom.govt.nz/assets/Publications/GovtResponse/NZLC-Government-response-R125.pdf

The Law Commission recommends the statutory creation of a new oversight office. The Office of the Ombudsman currently provides specific training and education to agencies subject to the Act, as well as publicly available information and guidance. The government considers that the oversight provided by the Ombudsmen is effective, including responsibility for complaints and guidance, and that government departments and agencies should continue to look to the Office of the Ombudsman for guidance.

  1. As well as failing to address the arguments of the Commission in detail, the subsequent decade has seen numerous further secrecy clauses enacted. This demonstrates that the then Government’s confidence in the effectiveness of the oversight provided by the Ombudsmen – and by inference the Ministry of Justice in relation to proposed secrecy clauses – was sorely misplaced.

Need for an independent review of the Official Information Act

  1. The 12 years since the Law Commission’s report have been largely one of drift and carelessness, notwithstanding the Ombudsman and Public Service Commission’s misplaced confidence in timeliness statistics. While the Council does not endorse all the recommendations of the Law Commission, the failure of successive governments to act on most of them have resulted in an official information regime that is now even further behind the times than the Commission noted in its report.
  1. All the main political parties contesting the last general election committed themselves to maintaining New Zealand’s membership of the Open Government Partnership, and the National and Labour Parties are committed to a review of the Official Information Act.
  1. The Ministry of Justice’s 2019 advice to the Minister of Justice on whether such a review should be undertaken did not even consider who should undertake the review – it assumed that the Ministry should do it.21Official Information Act 1982 – report back on targeted engagement and next steps, Ministry of Justice advice to Minister Andrew Little, 27 September 2019. https://nzccl.org.nz/wp-content/uploads/moj_advice_on_oia_review_september_2019.pdf
  1. This would be unacceptable, as not only has the Ministry demonstrated that it cares little for the legislation through the quality of its administration of the Act, failure to protect it from proposals to create unnecessary secrecy clauses, and because it seemingly lacks the policy capability to do the job well, but more fundamentally because it has an institutional conflict of interest and its administration role also needs examining by any review. The review of the OIA that the government is committed to undertaking should be conducted independently, as were the Independent Electoral Review and the Review into the Future for Local Government.

Next steps – the Ministry’s specific questions

  1. It will be clear from the rest of this consultation response that we do not think the Ministry is asking the necessary questions in paragraph 21 of the consultation paper.
  1. That said, the Council’s response to the questions posed are as follows:
  • (a)  The proposed options to improve scrutiny mechanisms are unlikely to work as the Ministry has not yet developed a set of principles against which claims for additional secrecy clauses should be tested. They also are too dispersed, with a lack of institutional ownership of the overall function. The paper not only fails to provide the Ministry’s existing guidance for officials to use when assessing agencies’ bids for secrecy clauses, but it fails to explain what items 3 and 4 in its table on page 9 would contain. In light of this, it is impossible to say whether they would improve the situation.
  • (b)  Scrutiny mechanisms without clear standards for those mechanisms to apply have been proven to fail to protect people’s rights to information. The additional option the Council would like to see is a new independent oversight agency, one of whose functions would be to review and advise on secrecy proposals. However, this goes beyond the current consultation and into the territory of the needed, and promised, review of the OIA overall.
  • (c) It is not easy to find information on secrecy clauses, or ‘exemptions to the OIA’ as the Ministry describes them. A Ministry that was adequately discharging its function of administering the OIA would be maintaining a public database of these clauses, along with the supporting documents supplied by the proposing government agency as well as the Ministry and the Ombudsmen’s assessments of the proposals. A full review of existing secrecy clauses is the obvious place to start, along with re-reading Appendix 4 and the relevant paragraphs of the Committee on Official Information’s report. The Council currently has to manually search Bills and Acts for references to confidentiality and non-disclosure.

Conclusion

  1. As a consultation exercise in fulfilment of an Open Government Partnership commitment, the Ministry’s work is wholly unfit. It will not lead to stronger testing of claims for secrecy, as it sets out no tests.
  1. The Ministry’s next steps should be:
  • to publish its existing guidance for officials on how to scrutinise agencies’ claims that a secrecy clause is needed in new legislation;
  • to publish a document that seeks views on why NZ Bill of Rights Act vets of new legislation should test secrecy clauses using the established methodology for scrutinising provisions that limit our rights; and
  • to publish a further consultation paper that sets out the draft text of the proposed new guidance and procedures for scrutinising proposed secrecy clauses.