Request for information about issues raised by the Legislation Advisory Committee in relation to the Public Transport Management Bill
Section 18(c)(ii) OIA did not apply—information was not advice to select committee but advice to Minister about what the advice to select committee might be—sections 9(2)(f)(iv) and 9(2)(h) OIA applied—no public interest override
The Legislation Advisory Committee’s (LAC’s) annual report referred to meetings and correspondence with the Ministry of Transport about the Public Transport Management Bill, which was due to come before the Transport and Industrial Relations Select Committee.
A requester sought information about the issues raised by the LAC. The Ministry withheld correspondence with the LAC, correspondence with its legal advisors, and advice to the Minister about the issues raised by the LAC, under sections 18(c)(ii), 9(2)(f)(iv) and 9(2)(h) of the OIA. The requester complained to the Ombudsman.
The Ministry’s position
The Ministry explained that the information was withheld because it could form part of its report to the select committee, which had not yet been finalised, and release at that time could breach the confidentiality of the select committee’s proceedings, and constitute contempt of the House.
However, after consulting the Clerk of the House, the Ministry decided some of the information could be released.
The Clerk said that, while the LAC material was a source for the Ministry’s advice to the select committee, it was not the advice itself:
The Ministry’s advice (expressed in its report [to the select committee] forms part of the proceedings of the Select Committee and it would be a contempt to divulge it (see Standing Orders 240(1) and 400(p)) but material that simply informs the advice is not in the same category.
The Ministry released some of the information, but continued to withhold information that it said would be included in its departmental report to the select committee, on the basis that it formed part of the proceedings of the committee, and it would constitute contempt to divulge it. The Ministry also continued to withhold correspondence with its legal advisors under section 9(2)(h).
Contempt by release
The Ombudsman acknowledged that advice to a select committee becomes part of the proceedings of the committee when it is tendered to it. To disclose departmental advice to a select committee without the committee’s authority, or before the committee reports to the House, would be contempt. To disclose a draft of that advice would also be likely to constitute contempt, as would disclosure of what occurred at a select committee meeting closed to the public.
However, the information at issue here was advice to a Minister about what a department may advise a select committee. Parliamentary privilege is a privilege of the Legislature, not of the Executive, or of an agency. The information in this case related solely to the business of the Executive—that is, what position the Executive should advocate before the Legislature. Release of this information would not constitute contempt of the House.
Other withholding grounds
The Ombudsman then considered whether there were other grounds for withholding the information.
He concluded that section 9(2)(f)(iv) of the OIA (withholding necessary to maintain the constitutional convention protecting the confidentiality of advice tendered by Ministers and officials) provided good reason to withhold the advice to the Minister about the issues raised by the LAC.
He also concluded that section 9(2)(h) of the OIA (withholding necessary to maintain legal professional privilege) provided good reason to withhold the Ministry’s correspondence with its legal advisors.
The need to withhold the information at issue was not outweighed by the public interest in disclosure, especially considering the extent of information that had already been released.
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.