Information withheld to protect confidentiality of advice—account taken of changed political environment since the advent of MMP—early release of papers prior to consultation with coalition partner could undermine constitutional convention
As part of its election manifesto, the Labour Party promised to pre-fund New Zealand Superannuation. Although the Coalition Government had not yet agreed to the policy, certain assumptions were made regarding the pre-funding of superannuation for the purposes of the annual budget.
After the budget announcement the Minister of Finance received requests for the advice provided to the government regarding the pre-funding of superannuation. The Minister refused these requests in reliance upon section 9(2)(f)(iv) of the OIA.
The information at issue was generated in order to develop the government’s policy regarding the future of New Zealand Superannuation and when viewed in isolation, was fairly innocuous. The decision to withhold the information was taken to protect the political process as opposed to the information itself.
At the time the request was made, the Labour and Alliance parties were in the middle of sensitive negotiations. The Labour Party was concerned that release of the information would jeopardise the ability of the Coalition to reach agreement as to government policy. The Minister was also concerned that the public debate generated by release of the information would compromise the Coalition’s ability to work through the issues.
It was accepted that release of the information before the Coalition partners had concluded their negotiations might undermine a convention that section 9(2)(f)(iv) is designed to protect. To this end, and despite the relatively innocuous nature of the information at issue, it was considered that the Minister was entitled to rely upon section 9(2)(f)(iv) in order to protect the confidentiality of advice tendered by officials.
It was then necessary to assess whether the interest in withholding the information was outweighed by countervailing public interest considerations favouring disclosure. It was accepted that there was a strong public interest in the development of superannuation policy. The Minister had, however, already made available some information regarding the working assumptions for the pre-funding of superannuation which were being relied upon by the Labour Party.
On balance, the view formed was that there was a greater public interest in allowing the Coalition partners to negotiate the government policy on superannuation. It was therefore concluded that the public interest considerations favouring disclosure did not outweigh the interest protected by section 9(2)(f)(iv).
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.
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