Request for internal discussion paper on privatisation

Free and frank opinions
Official Information Act 1982
Section 9
Legislation display text:
Official Information Act 1982, s 9(2)(g)(i)
The Treasury
Dame Beverley Wakem
Case number(s):
Issue date:

Two drafts of an internal discussion paper commissioned by Treasury’s Executive Leadership Team—Government had not sought advice on the issue—s 9(2)(g)(i) provides good reason to withhold

In 2010, the Treasury Secretary appeared on Q+A. In reply to a question about internal papers prepared by the Treasury on privatisation of state assets, he replied:

Well one of the things I asked my staff some time ago, is to really think about what are some of the arguments that people advance against privatisation, because New Zealand’s a bit unusual. Most countries overseas that’s not particularly controversial nowadays, it is here, and we want to get a better understanding of what it is that people are worried about in privatisation.

A request was made for ‘the reports produced by The Treasury on “the arguments that people advance against privatisation”’. The requester complained to the Chief Ombudsman when it was refused under section 9(2)(g)(i) of the OIA.

The information at issue was two drafts of an internal discussion paper commissioned by the Treasury’s Executive Leadership Team. The drafts were discussed at an internal policy forum and no further work was undertaken. The Treasury clarified that the Government had sought no advice on this issue, and none had been provided. It argued that disclosing this kind of background work would prejudice its ability to undertake self-initiated internal dialogues, especially in the case of sensitive policy issues. It said it was critical for the Treasury to be able to do background work on a range of topics before Ministers ask for advice. This enables it to ensure the advice ultimately tendered is robust, and that it can respond to requests for advice quickly and efficiently.

The Chief Ombudsman accepted that section 9(2)(g)(i) of the OIA applied to the information. In her words:

This provision recognises that some processes will need to be carried out without public scrutiny with the rationale being that the opportunity to express opinions in a free and frank manner will ultimately result in better decisions.

It was important that the Treasury had the confidence to explore its initial thinking on the important issue of privatisation in a candid way. Confidentiality was needed to induce the degree of free and frank opinion required during this process to place the Treasury in a position to best advise the Government if and when it decided to have such a discussion.

The Chief Ombudsman concluded that the public interest in disclosure of this early work did not outweigh the need to withhold it. However, if and when the Government actually sought advice on privatisation, the balance between the public interest favouring disclosure and the need to withhold under 9(2)(g)(i) may change, and a fresh assessment would be necessary.

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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