Request for draft answers to parliamentary questions

Constitutional conventions
Official Information Act 1982
Section 9
Legislation display text:
Official Information Act 1982, s 9(2)(f)(iv)
Mel Smith
Case number(s):
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Draft answers to parliamentary questions protected by s 9(2)(f)(iv)—parliamentary process sufficiently held the Minister to account

A requester sought information about the Minister of Immigration’s ‘review of the immigration issues contained in the Ingram Report’ (an investigation into the conduct of former Minister Taito Phillip Field). The Minister withheld draft answers to parliamentary questions (among other things) under section 9(2)(f)(iv), and the requester complained to the Ombudsman.

The Ombudsman confirmed the principle established in a line of cases beginning in 2001 that, subject to the application of the public interest test in section 9(1) of the OIA, section 9(2)(f)(iv) applies to protect draft answers to parliamentary questions.[1]

The process of asking and answering parliamentary questions takes place in the House of Representatives, where only Members of Parliament may ask questions and only Ministers may answer. In such circumstances, it is the Minister who is ultimately accountable for the response he or she decides to give (or not to give, as the case may be).

In making the decision as to how to answer a particular question, a Minister is free to seek advice from whatever quarter he or she chooses. The most usual form of assistance is for departmental officials to provide a Minister with the relevant information and advice necessary to enable the Minister to provide an answer to Parliament. Such advice is frequently tendered in the form of a draft answer to the particular parliamentary question.

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, draft answers to parliamentary questions clearly constitute advice tendered in confidence by officials to a Minister as to how the Minister might wish to answer the parliamentary questions at issue. Draft answers, like any other advice tendered in confidence to Ministers by officials, are subject to the constitutional convention which protects such confidentiality.

The Ombudsman considered that the argument for withholding the draft answers in this case in order to maintain the convention was persuasive. It was likely that Ministers would forego the support available from departments if they were required under the OIA to release draft answers to parliamentary questions as well as providing the actual answers pursuant to the procedures of the House. The effect would likely be to diminish the quality of answers to parliamentary questions and the corresponding degree of accountability to the House.

The Ombudsman was satisfied that the prejudice which would be caused by release of the draft answer was such that its withholding was necessary to maintain the constitutional convention protecting the confidentiality of advice tendered by officials to Ministers. It was therefore his view that section 9(2)(f)(iv) of the Act applied to the information at issue.

The Ombudsman considered the countervailing public interest in disclosure. He reviewed carefully both the content of the information at issue and the parliamentary process to which it related. The Minister of Immigration was accountable to Parliament for his response to questions asked pursuant to parliamentary procedures. If a reply was deemed unsatisfactory, parliamentarians could ask further questions or call for a debate on the answer given. The Ombudsman was satisfied that the parliamentary process sufficiently held the Minister to account for the answers he gave without disclosure of the draft answers being necessary to satisfy the public interest. He was therefore of the view that the public interest in release did not outweigh the need to withhold.

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.

[1]    Case note W45495. See also Ombudsman’s Quarterly Review 8(3) September 2002.

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