Request for Cabinet paper on decision to retain newborn blood spot cards

Constitutional conventions
Legislation:
Official Information Act 1982
Section 9
Legislation display text:
Official Information Act 1982, s 9(2)(f)(iv)
Agency:
Minister of Health
Ombudsman:
David McGee
Case number(s):
309664
Issue date:
Language:
English

Decisions had been made—information did not reveal advice that would subsequently be tendered—s 9(2)(f)(iv) does not apply

In 2011, a requester complained about the Minister of Health’s decision to withhold the Cabinet paper that informed the Government’s decision to retain new born blood spot cards (also known as ‘Guthrie’ cards) indefinitely. The paper was withheld under section 9(2)(f)(iv), because ‘further advice was under active consideration’.

The paper was considered by Cabinet Committee in July 2010. The Committee agreed to the proposal for ‘the permanent retention of new born blood spot cards, with a strengthened policy framework, and improved Minister of Health and Advisory Group governance arrangements’. The Committee invited the Minister to report back on the new policy and governance arrangements. That report back (due in August 2011), had not happened by the time the Minister made a decision on the request.

The Ombudsman formed the opinion that release of the paper at issue would not have prejudiced the Minister’s or Cabinet’s ability to consider the subsequent paper. The purpose of the July 2010 paper was to seek Cabinet Committee agreement to the permanent retention of the new born blood spot cards, to which the Committee agreed. It did not discuss the expected content of the report back, and in fact the later report back was not contemplated in the paper, but was agreed by the Committee when it considered the paper. The paper therefore did not disclose the advice that was subsequently given in August 2011. The Ombudsman could not see how release of the July 2010 paper, addressing permanent retention of the new born blood spot cards, would have prejudiced the consideration of the advice in the August 2011 paper, outlining the policy and governance arrangements for the cards. He was therefore of the view that section 9(2)(f)(iv) did not apply to the paper at the time of the refusal. It was not necessary to recommend release of the paper because it had already been made available.

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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