Request for draft answer to parliamentary question
Request to Department of the Prime Minister and Cabinet for draft parliamentary answer prepared for Prime Minister—request refused under s 9(2)(f)(iv)—release of draft answer would undermine ability of Minister to shape answer actually given in Parliament—quality of accountability to Parliament would diminish—s 9(2)(f)(iv) applied—countervailing public interest considerations did not outweigh interest in withholding
A Member of Parliament asked the Department of the Prime Minister and Cabinet (DPMC) to release a draft answer to a parliamentary question that it had prepared for the Prime Minister. DPMC refused this request under section 9(2)(f)(iv) of the OIA. It considered that releasing such draft responses would impair a Minister’s ability to answer parliamentary questions effectively.
DPMC explained that Ministers routinely change draft answers provided by departments, for a variety of reasons. This can be for reasons of personal presentation and style and because it is a Minister’s task to determine how a particular question should be answered. DPMC submitted that:
If departmental drafts were routinely released, Ministers would immediately be questioned on the reasons for changes. Very quickly, Ministers would stop asking departments to help prepare answers. The result would be that the quality of information provided to the House would diminish. The quality of accountability would be reduced.
The same result would be achieved if only drafts which were effectively the same as the final replies were released. The adverse inference that could be drawn from refusal to release a draft answer (ie that the Minister had altered the response) would produce questions. Ministers would quickly stop asking for assistance in order to avoid pointless questions.
When considering whether section 9(2)(f)(iv) of the OIA applied, it was first necessary to determine whether the constitutional convention protected by that section applied.
In this particular case, the information had to be viewed within the context of the parliamentary question process that takes place in the House of Representatives. Only Members of Parliament may ask questions and only Ministers may answer those questions. It is the Minister who is ultimately accountable for the response he or she decides to give (or not give, as the case may be). In deciding how to answer a particular question, a Minister is free to seek advice from any quarter. Normally, departmental officials provide a Minister with the information and advice necessary to enable the Minister to answer the parliamentary question. Such advice is frequently tendered in the form of a draft answer. As it is the Minister who must answer the question in Parliament, the Minister makes the final decision as to the content of that answer.
Accordingly, it was concluded that draft answers to parliamentary questions clearly constitute advice tendered in confidence by officials to Ministers as to how they might wish to answer the parliamentary questions at issue. The view was formed that the draft answer at issue was information to which a constitutional convention protected by section 9(2)(f)(iv) applied.
The next issue to consider was whether it was ‘necessary’ to withhold the draft answer in order to maintain that convention. An assessment had to be made as to whether the release of this information would undermine the convention. DPMC’s submissions that release would undermine the ability of Ministers to answer parliamentary questions, which would therefore undermine the quality of accountability to the House, were persuasive. It was concluded that the prejudice which would be caused by release of the draft answer was such that its withholding was necessary to maintain the constitutional conventions which protect the confidentiality of advice tendered by officials to Ministers.
An assessment then had to be made in terms of section 9(1) of the OIA as to whether the withholding of the information was outweighed by other considerations which render it desirable, in the public interest, to make the information available.
It was noted that all Ministers of the Crown are accountable to Parliament for answers given to questions asked pursuant to parliamentary procedures. If a reply is deemed unsatisfactory, Members can ask further questions or call for a debate on the answer given. In terms of the content of the draft answer, there was no public interest in it being known publicly.
The view was formed that in this case the parliamentary process sufficiently holds the Prime Minister to account for the answer given without disclosure of the DPMC draft. It was concluded that the considerations favouring release of the information in the public interest, did not outweigh the need to withhold. DPMC was entitled to rely upon section 9(2)(f)(iv) to withhold the draft answer.
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.