Request for advice to Government on producer board reform
Request for advice to Government on producer board reform—paper dated December 1988—constitutional conventions—whether still under consideration in May 1999—whether disclosure would interfere with policy making—ss 9(2)(f)(iv) and 9(2)(g)(i)—public interest balancing—participation and accountability
This case illustrates how the necessity to withhold official information can change over time and with a change in circumstances.
The issue of reforming the country’s producer boards had for some years been under consideration by various government departments and was controversial. In 1987 and 1988 the Treasury undertook a review of the structure and functions of the Boards and this culminated in a joint report written by officials of that department and the Ministry of Agriculture and Fisheries in December 1988. The report was submitted to Cabinet for consideration, but had received no action by May 1989.
At that time the Chief Ombudsman was asked to review a decision by the Treasury to withhold that report (referred to as the inter-departmental report) together with a number of other papers relating to the review itself. The Chief Ombudsman accepted that good reason existed, at that time, to withhold most of the information in question including the inter-departmental report. The need to withhold the information may be summarised by saying that the options set out in the report, which included a recommendation that a public discussion paper be circulated before any comprehensive reform was embarked upon, were still under consideration by Ministers and disclosure of the information under the Act would clearly pre-empt whatever action Ministers decided to take.
In the event the Government did not make any firm decisions in respect of the report in 1989, and no discussion paper was ever published. Towards the end of 1989 the Minister of Agriculture initiated a number of specific reforms, none of them of a fundamental nature, in respect of individual boards. The more fundamental reforms proposed by the inter-departmental report were not taken up.
In late 1989 the Chief Ombudsman received a further two requests, one from an interest group and the other from a news media source, seeking access to the inter-departmental report. The Chief Ombudsman undertook a further review of the withholding of that information, the focus of which was whether circumstances had, in the meantime, changed to an extent that good reason no longer existed to withhold the information.
In February 1990 the Chief Ombudsman formed a preliminary opinion that the information should now be made available for the following reasons:
since December 1988 the Government had decided not to proceed with the option of public consultation recommended in the inter-departmental report;
further consideration of reform had apparently ceased; and
in October 1989 the Minister of Agriculture (then the Hon Colin Moyle) wrote to the producer boards and told them that the wide-ranging review of the boards was complete.
The department sought comments from the Ministers of Finance and Agriculture in respect of the Chief Ombudsman’s preliminary opinion. The Minister of Agriculture (by that time the Hon Jim Sutton) commented that he opposed release of the information at this stage because:
the process of consultation with the Boards initiated by his predecessor (over the proposed legislative changes) was still incomplete;
a process of mainly confidential discussions with representative groups was still under way and officials were engaged in doing analytical work;
if advice, analysis and advocacy provided by officials and industry participants were to be released at this stage, those sources would dry up; and
there was ample information in the public domain which would assist public debate.
Based on these comments the Treasury concluded that the inter-departmental report should continue to be withheld because the issues raised in it were still under active consideration. The department commented that the importance of each of the documents at issue lay in the principles they contained rather than in the specifics of any recommendations, and thus the age of the information was not material to its current relevance. The department believed release of the information would impede the process of formulating and communicating the principles.
The Chief Ombudsman considered these comments carefully with reference to the information itself. He did not accept that all of the information in question was under active consideration. Both the Minister and the department appeared to have overlooked the fact that the matters still under consideration (that is, those initiated by the former Minister of Agriculture) corresponded in most part with a number of short-term measures recommended by the inter-departmental paper, but that the more fundamental areas of reform with which the paper was primarily concerned had not been proceeded with and did not appear to be under active consideration. Moreover, the only work being done on the short-term measures was that by the Minister of Agriculture and his advisers. The Treasury and the Minister of Finance appeared to be dormant on the whole issue at that time.
The Chief Ombudsman came to the conclusion, on the basis of what the Minister of Agriculture had said, that withholding the inter-departmental paper could only be justified under sections 9(2)(f)(iv) and 9(2)(g)(i) of the OIA if it could be said that release of that report would upset the reform project implemented by the former Minister of Agriculture in October 1989 which was still being worked on by officials of the Ministry. He found it hard to see how that argument could be sustained given that the major thrust of the paper under request went well beyond the matters now being considered.
Accordingly, the Chief Ombudsman did not consider that withholding the information was ‘necessary’ on this ground. He gave some consideration to the question of whether deletions would be justified to protect some of the short-term recommendations. However, he was not convinced that withholding that information was necessary in terms of sections 9(2)(f)(iv) and 9(2)(g)(i). The immediate reforms proposed in the paper (and now under consideration) were not fundamental, and seemed to me relatively uncontroversial. These matters had been put to the boards by the former Minister and their comments had been sought and (for the most part) obtained. That correspondence had not been sought by the requesters and would need to be treated differently were a request made for it. The Chief Ombudsman could not see how withholding the earlier material was necessary in terms of the OIA. The Minister of Agriculture also commented that ‘the issues are complex and arouse considerable passion in some quarters’. However, this appeared to refer to the more fundamental reforms which were not currently under consideration. Complexity and controversy are not reasons for withholding information under the OIA.
For these reasons the Chief Ombudsman reached the conclusion that withholding the information was not ‘necessary’ in terms of the tests in sections 9(2)(f)(iv) and 9(2)(g)(i). In terms of section 9(1) of the OIA, the Chief Ombudsman was of the view there was a strong public interest favouring release of the information at that time. This would be in accordance with the purposes of the OIA and in particular those set out in sections 4(a)(i) and 4(a)(ii).
In respect of participation, the Chief Ombudsman noted from the inter-departmental paper itself that the two departments involved had advocated the publication of a consultative document outlining the Government’s intentions in respect of producer board reform. Other papers supplied to the Chief Ombudsman by the Treasury showed that it remained of the view that the reforms proposed should be discussed with a wider audience than just the boards. Although the Minister of Agriculture had told the Chief Ombudsman about ‘a process of mainly confidential discussions with representative groups’ which was under way, he had not specified which groups were involved, and in any event that consultation did not appear to be meeting the Treasury’s concern about the need for consultation with ‘a wider audience’.
There was also, in respect of this information, an interest in accountability which must be satisfied sooner or later. The view taken in the inter-departmental paper had been that a public discussion document would be beneficial; this underlined the desirability that the issues be aired and debated publicly at some stage. Cabinet had later decided against this option, but that seemed to have been no more than a consequence of its decision not to proceed with the more fundamental reforms proposed by the paper. The Chief Ombudsman saw no reason why the public could not eventually have the benefit of that information; the only question was one related to the timing of disclosure.
The Chief Ombudsman formed the view that even if the necessity test under section 9(2) had been made out, it was unlikely that good reason would have existed to withhold the inter-departmental report. He therefore recommended to the Treasury that the report be made available.
The Chief Ombudsman’s recommendation was accepted.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.