‘Free and frank advice’ and the Official Information Act
Andrew Kibblewhite and Peter Boshier write about the challenge of balancing two fundamental constitutional principles embodied in the Official Information Act.
Concern exists that New Zealand hasn’t struck the right balance between two potentially competing principles of good government: officials should provide free and frank advice to ministers, and the public should have opportunities to participate in decision making and hold the government to account.
Steps we have taken to address this include: strengthening constitutional underpinnings for free and frank advice (Cabinet Manual changes and issuing expectations for officials); a work programme to improve government agency practice in relation to the Official Information Act; and the Office of the Ombudsman reducing uncertainty about when advice can be withheld by issuing new principles-based guidance and providing more advisory services.
It may seem novel that the chief ombudsman and the chief executive of the Department of the Prime Minister and Cabinet are writing an article together; however, this demonstrates our shared commitment to good government. For some time we have been discussing how to balance two principles that contribute to good government. The first is that public servants should provide free and frank advice to ministers. The second is that the public should have timely access to official information that enables them to participate in government decision making and hold the government accountable.
We both recognise the potential for tension between these two principles. If public servants give advice that is less than free and frank because of concerns about its public release, there is a risk to good government. This has led us to ask: to what extent can and should New Zealand’s public servants expect their advice to ministers to remain confidential? In this article we explore this and related questions from the different perspectives of our respective offices.
From the Prime Minister’s Department perspective (and that of head of the policy profession), free and frank advice is crucial to government making good decisions, and achieving good outcomes for those who live in New Zealand. If concern about release of advice under the Official Information Act (OIA) discourages officials from providing free and frank advice – or ministers from seeking it – we need to address that. But we also need to use all the other means available to us to foster free and frank advice and open government.
From the chief ombudsman’s perspective, the Official Information Act needs to operate with as much certainty as possible. The subject of ‘free and frank advice’ and when it might be protected or not is a difficult and uncertain matter for chief executives and ministers. Creating as much certainty as possible is desirable, because that promotes good government.