Request for correspondence between MP and Registrar of Pecuniary interests held by the Prime Minister
Correspondence was subject to the OIA because it was held by the Prime Minister for official purposes—section 18(c)(ii) OIA did not apply—release by the Prime Minister, to whom the information had properly been disclosed, would not constitute contempt of the House—s 9(2)(h) OIA did not apply—the Registrar was not a lawyer and there was no solicitor-client relationship—section 9(2)(ba)(i) OIA applied—implied obligation of confidence—release would inhibit the future supply of information from Ministers to Ministerial Services—no public interest override because the matter had already been the subject of a comprehensive inquiry by the Auditor-General
The Prime Minister/Minister for Ministerial Services withheld a letter from the Registrar of Pecuniary Interests to the Minister of Finance at the time, and the requester complained to the Ombudsman.
Initially, the Prime Minister refused to provide the letter to the Chief Ombudsman, saying that this would constitute contempt of the House. The Chief Ombudsman consulted the Clerk of the House, who advised that release of the letter to the Chief Ombudsman would not constitute contempt. However, the Prime Minister maintained that release of the letter to the requester would constitute contempt of the House, and relied on section 18(c)(ii) of the OIA to refuse the request, as it related to this letter.
Status of the letter
The Chief Ombudsman noted that correspondence between the Registrar and MPs relating to the returns they are required to submit under the Standing Orders is not ‘official information’ in the hands of the Registrar or the MP to whom the correspondence relates.
In the case of the Registrar and MPs who hold no ministerial office, this is because the OIA does not extend to them at all.
In the case of MPs who are Ministers, this is because the correspondence is not held by them in their official capacities as Ministers. The requirement to register pecuniary interests and dealings with the Registrar in fulfilment of this requirement arise from one’s position as an MP, not from one’s ministerial office. This is recognised in the House’s own procedures whereby questions cannot be addressed to Ministers about the registration of their pecuniary interests since these are not matters for which they have a ministerial responsibility (as opposed to a responsibility as MPs).
In this case, the letter was not official information in the Finance Minister’s hands. However, the Finance Minister had forwarded the letter to the Department of Internal Affairs in support of his declaration, and Ministerial Services had used it in the course of carrying out services with respect to ministerial properties. It was, therefore, ‘official information’ in the hands of the Department and Minister for Ministerial Services.
Contempt by release
Section 18(c)(ii) of the OIA provides that a request may be refused if making the information available would constitute contempt of the House of Representatives. The Chief Ombudsmen consulted with the Clerk of the House before forming any views on the issue of contempt of the House.
The Chief Ombudsman accepted that it would be a contempt of the House if the Registrar or other staff of the Office of the Clerk were to disclose correspondence with MPs relating to the register other than as authorised by the Standing Orders. Clause 18 of Appendix B of the Standing Orders set out the circumstances in which returns and information may be released.
However, she did not accept that it would be a contempt for an MP to disclose their correspondence with the Registrar. In fact, MPs commonly release copies of their returns or correspondence that they have had with the Registrar when questions arise as to their compliance with the rules. There could be no question of MPs thereby committing a contempt.
Nor did the Chief Ombudsmen accept that a third party to whom such returns or correspondence is properly disclosed commits a contempt of the House in disclosing that information in turn. There is nothing in the Standing Orders to suggest this, or that it would serve any parliamentary interest to attempt to do so (the basis of the contempt power), or that it would be practicable to do so. As most such disclosures by MPs are by tabling in the House and thus disclosing to the world at large, there is usually no intention on the part of the MP to maintain confidentiality. There may well be such an intention in a disclosure to another person, but that is a private matter between those parties, not a matter of enforcement by invoking the House’s power to punish for contempt. (However, it is relevant in assessing whether other withholding grounds applied).
If such information is obtained by a third party improperly (for example, by theft) that is a different matter. To obtain such material improperly is probably a contempt in itself, and disclosure of improperly obtained material would compound the contempt.
The Chief Ombudsman did not accept that section 18(c)(ii) applied in this case. Release of the letter by the Prime Minister (or anyone else into whose hands it came legitimately) would not constitute a contempt of the House.
Other grounds for withholding
The Chief Ombudsman then considered whether there were other grounds for withholding the letter.
Section 9(2)(h) of the OIA (withholding necessary to maintain legal professional privilege) did not apply because the Registrar’s advice was not legal advice. The Registrar was not a lawyer and there was no solicitor-client relationship.
However, section 9(2)(ba)(i) of the OIA (withholding necessary to protect the ongoing supply of confidential information that is in the public interest) did apply. It was implied from the circumstances of this particular case that there was a mutual understanding between the Finance Minister and Ministerial Services that the advice the Minister had voluntarily supplied to Ministerial Services was provided in confidence.
There was a real risk that disclosure of the Registrar’s advice in this case would inhibit the future supply of information from Ministers to Ministerial Services. This would not be in the public interest because a free-flowing dialogue between Ministers and Ministerial Services enables Ministerial Services to manage the utilisation of public money and resources.
The Chief Ombudsman did not consider that the public interest considerations favouring release outweighed the interest in withholding. The principal reason for this was that an Auditor-General inquiry had comprehensively addressed the public interest in transparency and accountability.
The Chief Ombudsman formed the opinion that section 9(2)(ba)(i) of the OIA provided good reason to withhold the correspondence.
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.