Request for Policy Advisory Group briefings to Prime Minister about infant formula threat
Section 9(2)(f)(iv) applies to PAG briefings to Prime Minister subject to public interest test— relationship between PAG and the Prime Minister, in his or her constitutional role as leader of the Government, is unique—complete confidentiality in interactions with his or her closest advisers is required to support the Prime Minister in carrying out that role
A requester sought briefings to the Prime Minister about the 1080 infant formula threat. He complained to the Ombudsman when his request was refused under section 9(2)(f)(iv). The information at issue comprised briefings prepared for the Prime Minister by the Policy Advisory Group (PAG) of the Department of the Prime Minister and Cabinet (DPMC).
The Chief Ombudsman confirmed the principle established in a line of cases beginning in 2001 that, subject to the application of the public interest test in section 9(1) of the OIA, section 9(2)(f)(iv) applies to protect PAG briefings to the Prime Minister.
Successive Ombudsmen have noted that the relationship between PAG and the Prime Minister, in his or her constitutional role as leader of the Government, is unique. This relationship is characterised by the following factors:
it is personal and relies on trust;
it involves communication of information gathered from many sources, some of them confidential;
it often requires the free and frank expression of opinions in assessing the views of other departments; and
it often requires memoranda or briefings to be written under time pressure so that, while the advice gives a clear message, there is no time for the more careful drafting advisors would prefer if the advice were to be disclosed out of context.
These characteristics will often be relevant to the consideration of requests for advice from PAG to the Prime Minister.
In order for the Prime Minister to carry out the role effectively, the incumbent must be able to receive and rely on, with confidence, free and frank opinions and advice from his or her advisors. In this regard, the Ombudsmen have noted that as leader of the Government and chair of Cabinet, and having coordinating responsibility across all areas of government, the role of Prime Minister is unparalleled in the organisational structure of the Government.
In addition, the context in which PAG generates advice for the Prime Minister of the day is different from the context in which departmental advice is ordinarily generated. DPMC plays a key role in coordinating the work of core public service departments and ministries and managing overall public sector performance.
In these circumstances the Ombudsmen have accepted that there is a convention that PAG advice to the Prime Minister should remain confidential.
The need for confidentiality arises out of the context in which the advice is generated and the nature of the relationship between PAG advisers and the Prime Minister. The application of section 9(2)(f)(iv) does not turn on the content of the advice. Often the advice may not be particularly contentious but that is not an essential requirement of section 9(2)(f)(iv). The fundamental rationale for the application of this provision to PAG advice to the Prime Minister is an acceptance that complete confidentiality in interactions with his or her closest advisers is required to support the Prime Minister in carrying out that role.
The Chief Ombudsman was persuaded that section 9(2)(f)(iv) applied to the briefings at issue. Having regard to the content and context of those briefings, she concluded that the overall public interest was not served by the disclosure of information that would undermine the ability of the Prime Minister to receive the advice they require from advisers to effectively carry out their role.
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.