That sentence, near the end of a January 26 Otago Daily Times article headlined "Cabinet paper was leaked by accident", came from Ministry of Justice CEO Andrew Kibblewhite’s statement responding to the leaked ministry analysis of a draft parliamentary Bill.
It triggered a mental question — Why? Is there any valid reason why briefing papers from a ministry to its minister, or indeed any other advice, such as input from lobbyists, should be confidential?
Under Section 2(1) of the Official Information Act 1982, "official information (a) means any information held by (ii) a Minister of the Crown in his [sic] official capacity", so all advice to a minister, whether from a ministry or from any other body or person, would appear to be included.
And Section 5 "Principle of availability" lays down "the principle that the information shall be made available unless there is good reason for withholding it" (the Act provides for justifiable exceptions to that general rule, including the safety of the realm or individuals, maintenance of law, and prematurely revealing decisions regarding taxation and other financial decisions).
Ministries routinely make briefing papers (often with redactions) public, usually long after they were received — Civis recently saw some from the Ministry of Health, provided to the new minister in November and released on the ministry website in February.
Presumably Mr Kibblewhite’s comment about confidentiality referred to the advice (in this case about the proposed Treaty Principles Bill) being made public before the minister or ministry deigned, or was compelled, to release it.
But the principle remains, and is important, though ministers and ministries (whatever government is in office) seem reluctant to accept it, habitually delay responding to Official Information requests, and erect barriers to frustrate them.
How about requiring all briefing documents going to ministers being automatically made publicly available within a set time, say one or two weeks (time to read them), of them being sent to the minister’s office, subject to the exclusions listed in the Act?
Another document (to a lay mind also covered by Section 2(1) of the Act) was leaked in January — the one, apparently originating from the NZ First party, which Associate Health Minister Casey Costello (aka Minister for Big Tobacco) sent to the Ministry asking for advice, having circled for attention the possibility of freezing taxes on tobacco rather than continuing their regular annual increase. When asked by RNZ whether she’d asked for such advice, she denied doing so.
Her ‘explanation’ in the House of Representatives that she hadn’t personally written the documents she sent to officials, and had asked for a "a range of advice", rather than "specific" advice, coupled with her later pseudo-apology for "any confusion", were laughable. Either she’d used a "terminological inexactitude" (to borrow Winston Churchill’s parliamentary phrase) to RNZ, or she needs lessons in English comprehension.
In February the Director-General of Health said the individual responsible for the leak had been identified, and was no longer working at the ministry. She said they took matters of integrity extremely seriously. Unlike, it seems, Ms Costello.
The Deputy Public Service Commissioner agreed with the action and said "the deliberate leaking of information is a political act which is incompatible with the neutrality requirements on public servants."
Should there be an exception, though?
Section 9(2)(f) of the OIA "maintain[s] the constitutional conventions for the time being which protect: (iv) the confidentiality of advice tendered by Ministers of the Crown and officials", unless, under Section 9(1), that’s "outweighed by other considerations which render it desirable, in the public interest, to make that information available".
Shouldn’t protecting truth be considered "in the public interest"? Perhaps a public servant leaking information to show that a Minister has lied to the public should have specific protection under the Protected Disclosures (Protection of Whistleblowers) Act.
