Towards Open Government: Supplementary Report
Our General Report recognised that before the Government made final decisions on its recommendations certain matters would require further examination. This Supplementary Report embodies the results of that examination. It relates back to the parent text of the General Report and to the principles we expounded in that report. It should therefore be read in the light of what is there said and in particular of the principle we saw as central to our approach - that all official information should be available unless there is good reason to withhold it.
It is also appropriate to recall our conclusion in the General Report that the changes in substance and machinery we recommended call for a legislative foundation. In presenting the General Report to the Prime Minister our chairman envisaged that a draft Official Information Bill and associated legislative proposals would be part of our Supplementary Report. Such a Bill appears in this report with comments explaining the reasons for its suggested provisions and, we hope, exposing them to considered argument. We found valuable the method of elaborating our ideas in the form of a draft Bill, which is one commonly adopted by law reform committees. It caused us to refine and test our concepts against the concrete and specific language of a Bill.
Our draft Bill does not in any way bear the imprint of Government approval, and it has no more standing than other parts of our report.
In preparing this report we have taken account of overseas developments since our General Report. We mention especially the progress of the Canadian Bill through the legislature, the Freedom of Information Bill introduced as a Private Member's Bill in Britain in January 1981, the reintroduction in April 1981 of the Freedom of Information Bill in the Australian Parliament and the further contention to which its contents gave rise before its passing by the Senate in June, and the plans to review the United States Freedom of Information Act announced by the Reagan administration in May 1981. These developments have influenced our thinking and assisted us in formulating some provisions of our draft Bill. Overall, however, we have been confirmed in our view that, although New Zealand operates within what is called the Westminster system of government, its institutions and their ambience have a particularity that requires its own solution. This makes it difficult to align overseas proposals with our own, especially those put forward in the federal countries of Australia and Canada.
Public discussion of our General Report has focused principally on two issues, which have rightly been seen as of major importance. The first is the location of final decisions on access - should it lie generally with the executive government (as our General Report proposed), the Ombudsmen, or the courts? The second is the creation of an Information Authority, standing apart from the Ombudsmen but independent of the ordinary executive. Its primary roles would be recommending additional categories of information carrying access as of right, and overseeing progress within the administration towards more open attitudes and policies. We have not been persuaded that our recommendations on these two issues were mistaken, and two parts of this Supplementary Report examine in more detail the implications of our recommendations and elaborate supporting arguments.
We have also looked more deeply at the administrative machinery to make our proposals effective, and have described it more fully. In the course of that examination we have had to give a good deal of attention to certain practical aspects of any policy of greater access to official information. There may be reasons for not acting on a request for information quite independent of the general criteria for withholding it. They apply with equal force to information which everyone would agree can properly be made available. The part of this report on Administration enumerates these reasons for not granting an application - for instance that the information sought is not identified with sufficient particularity; that (in the case of a document) it does not exist or cannot be found; that the request is frivolous or vexatious; that to provide the information would require substantial collation or research. Practical restrictions of this kind are found in some overseas legislation. They are inescapable if a practical and effective system is to be achieved. We are adamant however that they should not be used as an excuse to withhold information that is awkward or embarrassing, or simply to serve administrative convenience, or for other irrelevant reasons. We believe that there will be fair dealing from departments in these matters. But in any event the provision for review by the Ombudsmen will provide an effective assurance in this regard.
One distinction between our proposals and the approach taken overseas lies in the concept of what constitutes official information. The term “information” is not used in other legislation, which is written in term of records - notably written documents, but also tapes and computer entries. This does not however accord with every day usage which we think it is generally preferable to follow. For the purpose of criminal sanctions moreover the concept of “information” rather than documents is necessarily used, and we seek a closer alignment of the two. We have therefore chosen to regard official information in the wider sense of knowledge held by departments and organisations in their official capacity. This has had a considerable effect on the detailed drafting of our Bill. Where there is a legal right of access, however, it will often be in terms of records.
Our terms of reference did not extend to information held by Parliament, the courts and judicial tribunals, or local government, and our Bill excludes these institutions altogether from its ambit. As we indicated in our General Report, we took as our starting point Parts I and II of the First Schedule to the Ombudsmen Act 1975 listing departments and organisations to which that Act applied. But the areas of government activity about which the citizen can reasonably expect to be informed go beyond those in which the Ombudsmen, with their particular concern about complaints by individuals about administration, are involved, and include a wide range of government and public agencies, often termed quangos. To identify the boundaries of this Act with those of the Ombudsmen's jurisdiction would impose an arbitrary discontinuity in the application of the principle of more open government which, at best, would lead to illogicalities, and at worst would provide a tempting cloak under which a substantial section of public activities could be hidden from public view. We believe that when central government delegates authority or functions to quangos their information is “official information”, and that when the functions or operations of such bodies, including those whose activities are principally commercial, involve in any significant degree an element of Government policy, the Bill should extend to them.
This element can be assessed in various ways: for instance dependence on central government funding; nationwide in contrast to local jurisdiction; a statutory requirement to take note of the policy of, or to heed directions from, central government; or capacity for central government to intervene in their affairs or to make executive appointments to them.
We recognise that our view implies a comprehensive coverage which is reflected in clause 2(l) and the First Schedule to the draft Bill; at the same time there may be marginal cases for inclusion to which these principles do not give a clear and unequivocal answer. In these cases Parliament will have to balance the competing arguments in the light of the particular circumstances. It may well be that the Information Authority, in considering the application of the Act to various categories of information, and in terms of its responsibility to review the functioning of the Act, will wish to recommend to Parliament changes in respect of these particular marginal cases.
The whole report calls attention to a paradox. We have noted that in country after country the pursuit of improved access to official information, avowedly positive in purpose, leads nevertheless to concentration on what information should be withheld or protected. Discussion develops a negative cast; attitudes become defensive. But the truth is that this is an inevitable consequence of countervailing forces implicit in information matters. Our report, of like necessity, pays attention to safeguards and has much to say about constraints on the availability of official information, ranging down to the practical considerations of access to official information on a day to day basis.