Request for information regarding rental housing warrants of fitness
Section 9(2)(f)(iv) provides good reason to withhold some documents—Cabinet decision making incomplete—publicity from release would impede the Cabinet and Minister from making balanced, efficient and effective decision—Minister had addressed public interest in participation and accountability through disclosure of bulk of information at issue
A requester sought information regarding rental housing warrants of fitness. The Minister for Building and Housing released 38 documents but withheld five under section 9(2)(f)(iv). The requester complained to the Ombudsman.
The Minister explained the following with regard to the content and context of the information at issue:
The advice was preliminary in nature and was tendered to seek Ministers’ direction and test Ministers’ appetites for a range of policy options. This was demonstrated by the fact that Cabinet papers were primarily noting papers, with the only decision sought and made until then being to undertake a trial of the housing warrant of fitness on Housing New Zealand properties.
Cabinet had not yet weighed and balanced all of the specific information to come to a decision on the broad policy idea. Cabinet and the Minister needed to be able to measure that specific information without the risk of adverse publicity, which could prevent them from making a balanced, effective and efficient decision on the course of action to take.
To release the information and remove confidentiality would result in such publicity to the information that it would impede the Cabinet and Minister from making a balanced, efficient and effective decision on this policy. This would risk, over time, eroding the constitutional convention of confidentiality of ministerial and officials’ advice, which in turn would negatively impact on the ability of Cabinet, Ministers and officials to discharge the advisory, government and decision-making functions effectively.
The Minister also noted that to assist and inform public debate he had released a large amount of factual information and the broad policy parameters. He argued it would not be desirable to release information that related to matters Cabinet had not made decisions on, in particular preliminary and opinion-based advice on whether the Government should apply a housing warrant of fitness to other parts of the rental market, and the technical legal mechanisms that might be employed should the Government decide to do so. Cabinet wished to consider these matters following the Housing New Zealand housing warrant of fitness trial, which was designed to collect more factual information on the policy options and would inform further cost/benefit analysis.
The Ombudsman confirmed that the information at issue comprised advice which had either been tendered by officials to the Minister or the Minister to Cabinet. It was clearly of a preliminary nature, designed to seek broad Ministerial and Cabinet direction. The Ombudsman accepted that premature release of the information would likely impede the Minister’s and Cabinet’s ability to consider the advice and to make balanced, efficient and effective decisions on this matter. The Ombudsman also agreed that the Minister had addressed the public interest in participation and accountability through disclosure of the bulk of the information at issue. However, he noted that ‘once the Minister and Cabinet have had an opportunity to consider the advice and the relevant decisions have been made, it is likely that there will no longer be a need for ongoing protection of the advice’. Therefore it was open to the requester to seek access to the information in future.
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.