Request for information about appointment of public service chief executive

Confidentiality
Privacy
Legislation:
Official Information Act 1982
Legislation display text:
Sections 9(2)(a), 9(2)(ba)(ii)
Agency:
State Services Commission
Ombudsman:
Dame Beverley Wakem
Case number(s):
376377
Issue date:
Format:
HTML,
PDF,
Word
Language:
English

Section 9(2)(a) applied to names of unsuccessful candidates—no public interest override—section 9(2)(a) and 9(2)(ba)(ii) did not apply to the names of external panellists—section 9(2)(a) did not apply to officials’ names, Cabinet distribution and attendance lists, or the signature of the Cabinet Secretary—strong public interest in transparency and accountability of the appointment process for senior roles in the public service.

Background

A requester sought information about the appointment of the Chief Executive of the Ministry of Primary Industries.

The State Services Commission (SSC) released the relevant information, but withheld the names of the unsuccessful candidates, and the names of the external panellists, under sections 9(2)(a) and 9(2)(ba) of the OIA.

In addition, SSC ‘omitted’ all other names and signatures appearing in the information at issue, but did not explain why it had done so in terms of the OIA. This included:

  • the names of officials
  • Cabinet attendance and distribution lists
  • the signature of the Cabinet Secretary.

The requester complained to the Ombudsman, arguing that there should be transparency in the appointment process for a senior public servant.

Investigation

The Chief Ombudsman notified SSC of this complaint and requested a copy of the information at issue.

Consultation with the Cabinet Office

As a first step, the investigator assisting the Chief Ombudsman consulted with the Cabinet Office.

The Cabinet Office advised that there was no need to withhold the list of Ministers and officials present at Cabinet, or the distribution list for the Cabinet minutes. It noted that distribution lists are usually removed before Cabinet minutes are proactively released. However, in the case of an OIA request, distribution lists can be released as part of the minute, unless there are grounds to withhold it in a particular case.

The Cabinet Office considered that there was good reason to withhold the name of the Cabinet Committee Secretary and the signature of the Cabinet Secretary under section 9(2)(a) of the OIA, in order to protect their privacy.

Provisional opinion

The Chief Ombudsman formed the provisional opinion that there was good reason to withhold the names of the unsuccessful candidates, but not the remaining information.

Unsuccessful candidates

This information was withheld under section 9(2)(a) of the OIA, which provides good reason for withholding (subject to a public interest test), where it is necessary to protect the privacy of natural persons.

The Chief Ombudsman consulted the Privacy Commissioner, who agreed that the privacy interest in the unsuccessful candidates’ names was high. The fact that these individuals had applied for the position and been unsuccessful was personal information about them, about which there was a reasonable expectation of privacy. Release of that information could be perceived to impact negatively on their reputations.

The Chief Ombudsman acknowledged a strong public interest in transparency and accountability for the appointment process for senior roles in the public service.  However, in this case, the public interest would not be enhanced by the release of the names of the unsuccessful candidates.

The Chief Ombudsman concluded that the privacy interests of the unsuccessful candidates were high, and the public interest considerations favouring release did not outweigh those interests.  

External panellists

In addition to section 9(2)(a), SSC relied on section 9(2)(ba)(ii) of the OIA to withhold this information.

Section 9(2)(ba)(ii) provides good reason for withholding (subject to a public interest test), where the release of information that is subject to an obligation of confidence would damage the public interest.

SSC explained that external panellists are advised that their involvement in a panel will be treated in confidence and released only if required. It argued that the resulting media or public scrutiny could dissuade people from participating in the panel process in future. This would be to the detriment of the process, which is designed the ensure the appointment of the best possible candidate.

The Chief Ombudsman considered that the privacy interest in the names of the external panellists was low. Although private persons, there was no reasonable expectation of privacy when performing this public function. 

The Chief Ombudsman also noted that it was not open to SSC to provide a blanket assurance of confidentiality; nor had it done so, given the advice provided to panellists that their names could be released if required.

The Chief Ombudsman did not think there was a credible risk that releasing the names at issue in this case would dissuade future potential panellists from participating in appointment processes, and was therefore not persuaded that withholding was ‘necessary’.

The Chief Ombudsman also considered that, even if sections 9(2)(a) and 9(2)(ba)(ii) applied, the need to withhold would be outweighed by the public interest in transparency and accountability for the appointment process for senior roles in the public service.

Officials' names

The information at issue included the names of SSC officials and the names of Cabinet Committee Secretaries. These names were initially ‘omitted’ without reference to the OIA. SSC later relied on section 9(2)(a) to withhold this information; a view that was shared by the Cabinet Office, as it pertained to the Cabinet Committee Secretaries.

The Chief Ombudsman replied that the approach of successive Ombudsmen has been that the names of officials should be released unless some other consideration—such as safety or improper harassment—requires the official’s name to be withheld. She saw no reason in this case to depart from that approach.

SSC argued that there was no public interest in releasing the names of officials who were not accountable for the decisions made in the appointment process. However, there needs to be a reason to withhold before the countervailing public interest in release is assessed. In the Chief Ombudsman’s view, there was no reason for withholding in this instance. All that would be revealed is what the officials did in their official capacity.

The Chief Ombudsman observed that ‘Government transparency and accountability is supported by New Zealand not having a culture of an anonymous Public Service’. In addition, in this case, there was a strong public interest in openness and transparency in the appointment processes of high-level public sector roles. 

Cabinet distribution and attendance lists

For similar reasons, the Chief Ombudsman considered there was no good reason to withhold the names of Ministers and officials present at Cabinet, or the distribution list for the minutes, in order to protect their privacy. Privacy was not at issue, as these Ministers and officials were acting in their official capacity. Consultation with the Cabinet Office had confirmed there was no constitutional reason for withholding this information, and the release would not undermine the confidentiality of Cabinet discussions.

Signature of the Cabinet Secretary

The Chief Ombudsman noted that the identity of the Cabinet Secretary was publicly known, as one would expect at that level of seniority. In addition, her signature appeared on other documents which were already in the public domain. The Chief Ombudsman therefore did not consider that it was necessary to withhold the Cabinet Secretary’s signature on privacy grounds, or for any other reason.

Outcome

SSC made no further comments, and the Chief Ombudsman formed the opinion that there was no good reason to withhold the information at issue, other than the names of the unsuccessful candidates. SSC accepted the Ombudsman’s opinion and released the additional information.

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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