Release of consultant’s advice would not inhibit free and frank opinion

The Ministry of Business, Innovation and Employment (MBIE) withheld some information from a slide deck provided by a consultant, as part of electricity system modelling for a planned LNG import terminal—the slide deck was a draft working document progressively developed over time to facilitate discussions as the modelling work progressed—deletions were made under section 9(2)(g)(i) of the OIA to protect the process of formulating advice and working with consultants—the Chief Ombudsman did not consider release of the information would inhibit the future exchange of free and frank opinions between MBIE and consultants—the Chief Ombudsman also identified a public interest in release to promote transparency and accountability and help to instil trust and confidence in MBIE’s advice to Ministers

Background

The New Zealand Government planned to build a liquefied natural gas (LNG) import terminal in Taranaki. The Ministry of Business, Innovation and Employment (MBIE) commissioned Concept Consulting (Concept) to undertake electricity system modelling. The purpose of the modelling was to help understand the impacts an LNG import terminal would have on future electricity prices across a range of scenarios. This was one input to a wider tranche of advice that MBIE was preparing for Cabinet. The Concept modelling summary was proactively released on MBIE’s website.

Lawyers for Climate Action NZ (the requester) made a request to MBIE for information about the Concept modelling summary. 

MBIE responded to the request by providing documents, including the latest version of a slide deck prepared by Concept. Some deletions were made to the slide deck under section 9(2)(g)(i) of the Official Information Act 1982 (OIA). 

MBIE stated the modelling was conducted in an iterative back-and-forth collaborative process between MBIE and Concept to help MBIE progressively commission modelling runs with different input assumptions across a range of scenarios, and to access and understand modelling results as they became available. 

The ultimate output of the modelling process that fed into MBIE’s advice for Ministers was reflected in the Concept modelling summary that was proactively released on MBIE’s website and in the Cabinet paper which Ministers proactively released. 

The requester complained to the Chief Ombudsman about MBIE’s decision to delete certain information from the slide deck. 

In response to this complaint, MBIE considered its rationale for making the deletions, along with the passage of time, and made a fresh decision providing the requester with a new copy of the slide deck, releasing some, but not all, of the information that had previously been withheld. 

The requester then made a further complaint about MBIE’s decision to withhold the remaining information from the slide deck. 

Investigation

Section 9(2)(g)(i) 

Subject to any stronger public interest in release, section 9(2)(g)(i) of the OIA applies where withholding information is necessary: 

• to maintain the effective conduct of public affairs; 
• through the free and frank expression of opinions by, between or to Ministers and officials. 

It recognises that the effective conduct of public affairs can require the candid and unreserved expression of opinions, and that public exposure of those opinions can sometimes have a chilling effect on people’s willingness to express themselves openly, honestly and completely in future.

In considering the application of section 9(2)(g)(i) in this case, the Ombudsman considered: 

• the nature and content of the information; 
• whether release would inhibit the future exchange of free and frank opinions; and 
• the public interest in release. 

The nature and content of the information 

Information does not have to be a ‘free and frank opinion’ in order to qualify for protection under section 9(2)(g)(i) of the OIA. The key issue is whether release of the information would inhibit the exchange of free and frank opinions in the future. However, release of information that is not in the nature of free and frank opinion may be less likely to have such an inhibiting effect. 

Early and informal drafts and working papers, and advice conveyed under pressure of time, may be ‘free and frank’ in nature, and more likely to require protection. However, simply calling something a ‘draft’ does not invoke the protection of section 9(2)(g)(i). An assessment must be made in the circumstances as to whether a document really is a ‘draft’, and if so, what the impact will be on the future exchange of free and frank opinions if it is disclosed.

The information deleted from the slide deck was contextual information provided by Concept to go alongside its position on the electricity system modelling, using the knowledge that it had at the time and based on the modelling it had created. MBIE submitted that the slide deck was a draft working document, presenting modelling that was not intended to be used as a formal output. 

However, while the Chief Ombudsman accepted the slide deck could be considered a draft, it was the most final version of the document. The slides were progressively developed over time to facilitate discussions as the modelling work progressed and reflected progressive updates in assumptions and results. By the time the last version of the slide deck was created, MBIE had engaged in back-and-forth discussions with Concept and there had been a chance to improve on and refine earlier drafts. The slide deck also contained some different and additional information, as compared to the Concept modelling summary.

As such, while the slide deck may have been a working document and earlier versions may have been more in the nature of a draft with rough or early-stage concerns, the last version of the slide deck was fairly advanced, with ideas more considered and crystallised. The Chief Ombudsman was not convinced this version of the slide deck was free and frank opinion. 

Would release inhibit the future exchange of free and frank opinions 

From time to time, agencies will need to seek advice and opinions from external parties. The effective conduct of public affairs is promoted when discussions can take place in a free and frank manner, without being concerned that preliminary opinions and ideas could be made publicly available. 

MBIE was concerned to ensure officials can carry out their work free from undue levels of scrutiny of their exchanges while formulating their advice, so that they do not feel the need to change their ways of working to the detriment of the final output going forward. 

The Chief Ombudsman accepted that releasing information which reveals a consultant’s work or opinions that have not been fully polished or properly contextualised, could inhibit the effective conduct of public affairs. Officials and consultants could become reluctant to be candid or to openly express their initial thoughts in writing if information such as this were to be released. 

However, the Chief Ombudsman was not convinced that release of the information deleted from the slide deck in this case would have such an effect.  

MBIE was concerned release of the information would have a chilling effect on MBIE’s way of working and engaging consultants. 

Officials are expected to be impartial and robust when giving advice and not easily deterred from expressing their views by the possibility of future disclosure. Further, consultants that have been commissioned because of their skill and professional expertise in a particular area are unlikely to be deterred from providing free and frank opinions in future, as this would be detrimental to the conduct of their business. 

In this case, most of Concept’s modelling had already been made public. The remaining information that had been withheld from the slide deck provided important context and limitations for Concept’s advice and modelling. The Chief Ombudsman did not consider release of this information would inhibit the future exchange of free and frank opinions between MBIE and third parties providing advice or assistance. 

As outlined above, the slide deck was not free and frank opinion. It was also not a typical draft document. The majority of the information had already been released, and it was not clear why the remaining information would require protection over the information that had already been released. 

MBIE was also concerned that the information deleted from the slide deck included inaccurate, incomplete or out-dated information. It was not commissioned as a formal output and MBIE was not able to disclose some relevant context to Concept to fully inform the advice. 

The Chief Ombudsman considered the public can understand the tentative quality of draft documents and distinguish them from final documents. Any risk of misunderstanding could be addressed by releasing the relevant information with a contextual statement explaining its limitations. 

The Chief Ombudsman also noted that releasing the majority, but not all, of the slide deck further risked the information being incomplete, particularly given that the withheld information provided explanatory and contextual detail for the remainder of the slides. 

Public interest

The Chief Ombudsman also considered there was a high public interest in release of the information. 

There was a high level of public and parliamentary debate about the plan for an LNG import facility. The Concept modelling was used by MBIE alongside other information and analysis, to help form its advice to Ministers on the case for proceeding with the plan. While the Concept modelling summary and the Cabinet paper were proactively released, providing clarity on the decision-making process, there was public speculation about the remaining information deleted from the slide deck. There was also a public interest in the release of information about the expenditure of public funds, with the facility estimated to cost upwards of $1 billon. 

There is a public interest in disclosure of drafts where that would promote transparency, accountability and public participation. For example, by enabling the public to examine the process by which an agency has come to a final decision or position, and revealing information that is additional to, or different from, what is contained in the final document.

The Chief Ombudsman considered release of the remainder of the slide deck, with any necessary caveats, would promote transparency and accountability and help to instil trust and confidence in MBIE’s advice to Ministers. Release would provide the public with the full picture of the draft modelling, given that:

• the modelling in the slide deck had differing conclusions to that in MBIE’s advice to Ministers;
• some information identifying the difference in conclusions had already been publicly released, creating further speculation and questions; and
• the deleted information provided important context for the modelling that had already been released.

The Chief Ombudsman also noted the context of it being a general-election year added to the importance of accountability and transparency. It heightened the interest in knowing more about what was behind the Government’s decision making, which could help to inform the public on how they wish to vote.

Outcome

The Chief Ombudsman did not consider there was good reason to withhold the remaining information in the slide deck, as: 

• it was not necessary to withhold the information under section 9(2)(g)(i) of the OIA to maintain the effective conduct of public affairs through the free and frank expression of opinions; and
• even if it was necessary to withhold the information, this was outweighed by the public interest in release. 

The Chief Ombudsmen recommended that MBIE release the slide pack in full, and MBIE did so.