Request for Information relating to appointment of an honorary consul in Monaco

Constitutional conventions
Legislation:
Official Information Act 1982
Section 9
Legislation display text:
Official Information Act 1982, s 9(2)(f)(iv)
Agency:
Minister
Ombudsman:
David McGee
Case number(s):
177645
Issue date:
Language:
English

Confidentiality can diminish over time—s 9(2)(f)(iv) does not apply

A requester sought advice to the Minister of Foreign Affairs on the appointment of an honorary consul in Monaco. It was withheld under section 9(2)(f)(iv) and the requester complained to the Ombudsman. The Minister explained that a decision had not been taken, and release of the advice would prejudice his ability to make an objective decision about the proposal.

The Ombudsman acknowledged that this was a relevant factor. He stated:

It is accepted that one of the purposes of section 9(2)(f)(iv) is to allow Ministers and Cabinet to consider advice whose release could prejudice their ability to make well-considered decisions on what course of action to take. Prematurely releasing details of a matter under consideration could damage the public interest in good governance—for example, by dissuading individuals whose appointment was under consideration from offering themselves for office.

However, there were two factors in this case ‘which [told] against the public value in confidentiality’. The first was the length of time that an appointment had been under consideration. The issue first appeared to have been raised in 1991. The latest advice was in 2007. The Ombudsman acknowledged ‘the Government’s prerogative to make or defer a decision as it sees fit’. However, ‘the public interest ... in withholding information to permit a Government to consider advice in private must diminish over time since a Government will, by definition, have had an increasing amount of time in which to deliberate on the matter’.

The second factor telling against the public value of confidentiality in this case was the amount of information already available. From publicly available information, it was clear that there was already widespread knowledge of the appointment under consideration.

In view of those two factors the Ombudsman was not persuaded that section 9(2)(f)(iv) provided a justifiable ground for withholding the information. On further consideration, the Minister confirmed that no further steps regarding the appointment of an honorary consul to Monaco would be taken, and agreed to release the advice.

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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