Request for information relating to changes in Training Incentives Allowance

Constitutional conventions
Legislation:
Official Information Act 1982
Section 9
Legislation display text:
Official Information Act 1982, ss 9(2)(f)(iv), 9(2)(g)(i)
Agency:
Department of Social Welfare
Ombudsman:
Hon Anand Satyanand
Case number(s):
W36084
Issue date:
Language:
English

Request for information relating to changes in Training Incentives Allowance—information withheld under ss 9(2)(f)(iv) and 9(2)(g)(i)—discussion of principles—good reason under section 9(2)(f)(iv) to withhold the advice on the options under consideration but not the options themselves

A political party researcher made a request to the Department of Social Welfare for information relating to changes in the Training Incentives Allowance, including briefing papers for the Minister and/or Cabinet, information on which the decision to stop the allowance for postgraduate students was based, documents outlining the future of the allowance, correspondence with the Ministry of Education and between any Ministers and the Department, and a list of work being undertaken with respect to the allowance.

The Department declined four parts of the request in reliance on sections 9(2)(f)(iv) and 9(2)(g)(i) of the OIA. With respect to the request for correspondence with the Ministry of Education or Ministers, it said the information did not exist and therefore refused this part of the request in terms of section 18(e) of the OIA.

Seven documents were identified as falling within the scope of the request. In the course of reporting on the reasons why it had decided to withhold the information requested, the Department agreed to make three of the documents available to the requester. Having considered the remaining four documents, they did not appear to contain any ‘free and frank expression of opinions’ in terms of section 9(2)(g)(i). They appeared to provide factual information to Ministers and Cabinet together with advice in response to a request for proposals for improving the Training Incentive Allowance. There did not appear to be any basis for suggesting that disclosure of the information in the documents would prejudice the future supply of free and frank opinions. Accordingly, it was concluded that section 9(2)(g)(i) did not apply to the information at issue.

Section 9(2)(f)(iv) reflects Parliament’s acceptance that in certain circumstances it may be necessary to protect the confidentiality of advice tendered by Ministers of the Crown and officials to enable the process of government to operate in an effective and orderly manner. While it has generally been accepted that, except in exceptional circumstances, once Government policy decisions have been made and announced, advice tendered in the policy making process no longer requires protection, it does not follow that all advice must be protected until Government has made final policy decisions. Such an approach would be inconsistent with section 4(a)(i) of the OIA which sets out one of the purposes of the Act as being ‘to increase progressively the availability of official information to the people of New Zealand in order to enable their more effective participation in the making and administration of laws and policies’.

An examination of the documents showed that some of the information related to policy decisions which had already been made and implemented, and even though some work on those decisions was still ongoing, there appeared to be no good reason in terms of section 9(2)(f)(iv) to withhold that information. Any residual concerns the Department might have about the effects of disclosure could be remedied by releasing a contextual statement with the information concerned.

Other information in the documents related to options under consideration. In this respect a distinction can be drawn between disclosure of options and disclosure of advice on those options. The disclosure of options is consistent with the purpose identified in section 4(a)(i). However, depending upon the facts of the case, disclosure of advice on options may need to be protected in terms of section 9(2)(f)(iv) to facilitate the undisturbed consideration of the advice and orderly policy decision making process. In this case it was concluded that while it was necessary in terms of section 9(2)(f)(iv) to withhold the information containing advice on the options identified in the review of the Training Incentive Allowance, information about the options themselves should be released.

Other information related to the terms of reference for the review of the allowance and the revised reporting date for the review and no good reason in terms of the OIA could be identified for withholding this information.

These views were put to the Department for comment, and it released all the information, other than that which was identified as being withholdable in terms of section 9(2)(f)(iv).

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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