Transfer of request for information on Bill from Ministry of Justice to Associate Minister

Researcher complained that transfer had the effect of narrowing the scope of his request— complaint reviewed under OA—information ‘more closely connected’ to functions of Associate Minister—decision to transfer request was reasonable

A requester sought copies of all reports, memos, advice and other policy work produced by the Ministry of Justice arising out of Cabinet’s decision in principle that neutral laws on relationships whether married, de facto or same sex, should be applied across the board (CAB Min (01) 27/14).

The request was transferred to the Associate Minister of Justice (who had been delegated responsibility for performing functions that would otherwise have been performed by the Minister), and the requester complained to the Ombudsman. The requester accepted that ministerial briefings might justifiably have been transferred, but could not see how internal Ministry documents would be more closely connected with the functions of the Associate Minister.

The Chief Ombudsman considered the functions of Ministers and departments. He commented that information relating to ‘policy decisions’ will be more closely connected with the functions of a Minister, and information relating to ‘policy advice and implementation’ will be more closely connected with the functions of a department. While in theory, this division appears clear, in practice, it may be more difficult to draw.

In general, however, the recipient of a request should transfer that request to a Minister if the information at issue relates to the Minister’s (or Cabinet’s) decision making function, and release of the information could prejudice the Minister’s ability to perform that function. Where no possible prejudice to a Minister’s decision making function could result, the recipient of the request should retain responsibility for deciding it. The question, therefore, was whether one could reasonably conclude that release of the information at issue in this case would impair the Associate Minister’s decision making process.

The Chief Ombudsman then considered the information at issue, which included briefings and Cabinet papers seeking Ministerial or Cabinet decisions on policy direction. While Cabinet decisions on policy had been made at several stages in the development of the legislation, those decisions were not severable from the overall, ongoing policy and legislative process. At the time of the request, the Ministry could reasonably conclude that release of the information would prejudice the ability of the government to reach internal agreement and obtain coalition party support for the legislation. As decision maker and public advocate for the legislation, the Associate Minister was in the best position to decide on the request.

The Chief Ombudsman did not accept that ministerial briefings could have been separated from internal Ministry documents for the purposes of the transfer. Internal work formed the basis of the Ministerial briefings, and had the end goal of obtaining Ministerial and Cabinet decisions on policy direction.

In the Chief Ombudsman’s opinion, the Ministry’s decision to transfer the request to the Associate Minister was reasonable in all the circumstances.

This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. 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.