Peter Ellis Org : Seeking
Justice for Peter Ellis
The Christchurch Civic Creche Case
Office of the Ombudsmen
Nga Kaitiaki Mana Tangata
Our Ref: W50678
Contact: Michael McDonnell
10 December 2003
The Secretary for Justice
Ministry of Justice
P O Box180
Wellington
Dear Ms Clark
Official Information
Act Complaint: Katherine Rich MP
I refer to our earlier correspondence.
I have had the opportunity to consider the information at issue in this case
and the report you have provided on the reasons why the Ministry wishes to
withhold this information and am now in a position to
provide you with my provisional view.
Background
and Information at Issue:
The background is that on 23 June 2003, Ms Rich wrote to you requesting the
following information:
"...a copy of all correspondence (including email), reports, or
any document that relates to Peter Ellis and the Christchurch Civic creche case.
This should include copies of all subsequent replies to that correspondence.
This should include a copy of the report produced by the Ministry of Justice
for the Minister in February 2001 regarding holding a commission of inquiry or
a ministerial inquiry. Additionally, I specifically request any advice relating
to the decision to hold a ministerial inquiry."
In a letter dated 25 June 2003, Ms Rich modified this
request as follows:
"I request under section 12 of the Official Information Act, a
copy of all correspondence (including email), reports, or any document that
relates to Peter Ellis and the Christchurch Civic Creche case for the period
November 1999 to April 2001 that refers to either a ministerial Inquiry or a
commission of inquiry.
This should include a copy of the report produced by the Ministry of Justice
far the Minister in February 2001 regarding holding a commission of inquiry or
a ministerial inquiry."
The Ministry responded to this request on 5 August 2003. I
am advised by Ms Rich and the Ministry has confirmed that it has withheld the
following information:
"Document C28 dated 6 March 2000, a Memoranda for Cabinet,
covering letter and Cabinet Policy Commlttee decision
(Page 5 of the Memorandum for Cabinet) (One sentence withheld pursuant to
sections 9(2)(f)(iv) and 9(2)(g)(i))."
In its report of 28 October 2003, the Ministry confines its
reason for withholding the sentence in question to section 9(2}(g)(i) of the Official
Information Act.
The sentence withheld appears on page 5 of the Ministry's memorandum of 1 March
2000 to the Minister of Justice and reads as follows:
"It has to be acknowledged, however, that such an inquiry is
unlikely to be able to arrive at the truth and, whatever its findings, may fail
to satisfy current public doubts."
Section 9(2)(g)(i}
Section 9(2)(g)(i)
of the Official Information Act applies where it is necessary to withhold the
information at issue in order to:
"(g) Maintain the effective conduct of public affairs through -
(i) The free and frank expression of opinions
by or between or to Ministers of the Crown or members of an organisation or
officers and employees of any Department or organisation In the course of their
duty".
Before accepting that section 9(2)(g){i) applies, the decision-maker (and an Ombudsman on review)
must be satisfied that it is necessary to withhold this particular information
because:
¨
disclosure of the information at issue would be
likely to inhibit the future "free
and frank expression of opinions";
¨
such future free and frank expression of
opinions would be necessary to maintain the "effective
conduct of public affairs"; and
¨
in the circumstances of
the particular case, the interest in withholding is not outweighed by
countervailing public interest considerations favouring disclosure.
In assessing whether disclosure of certain information would
be likely to inhibit free and frank expression of opinions in the future,
factors such as the:
¨
nature and content of
the information;
¨
source of the
information; and
¨
context in which it was
generated
are relevant.
Section 9(2)(g)(i)
reflects Parliament's acceptance that it may be necessary to protect
information if release of that information would inhibit the generation of free
and frank expression of opinions in similar circumstances in the future, where
the provision of such opinions would be necessary to maintain the effective
conduct of public affairs.
The Danks Committee, whose report "Towards Open
Government" in 1982 led to the enactment of the Official Information Act,
described the interests to which section 9(2)(g)(i) relates as follows:
"If the attempt to open processes of Government inhibits the
offering of blunt advice or effective consultation and arguments, the net
result will be that the quality of the decisions will suffer, as will the
quality of the record. The processes of Government could become less open and,
perhaps, more arbitrary." (Towards Open Government, General Report,
page 19.)
"Essentially the subparagraph covers internal and interdepartmental
minutes, reports and recommendations, and advice by public
servants to Ministers...such documents are not automatically protected
from disclosure. Only if disclosure is likely to inhibit the free and frank
expression of opinion and thereby adversely affect the conduct of public
affairs may a reason for withholding them under this head exist." (Towards
Open Government, Supplementary Report, page 67)
In considering whether section 9(2)(g){i) will apply it is necessary to consider the circumstances
in which the information was generated, and by whom. As general propositions,
information generated as a result of careful and considered deliberation and
expressed in temperate language will be less likely to be withholdable,
than less considered remarks generated in the heat of debate. Similarly, the
more senior the person who generated the information, then the more robust the
person may be expected to be in the future in continuing to express opinions.
Application of Section 9{2){g)(i) to the Information at Issue
In the present case, the Ministry's memorandum of 1 March
2000 to the Minister of Justice, which contains the information at issue bears
the signature of the then Secretary for Justice, Mr C Keating. This memorandum
appears to be a carefully considered formal document and there is no indication
that the information in it was generated as a result of anything but careful
and considered deliberation. The sentence in question is not one that could be
considered to have been generated in the heat of debate. In general, if the
free and frank opinions under consideration are those of senior officials as is
the case here, these officials would be expected by virtue of their positions
to continue to express their opinions freely and frankly in the future when
called upon to provide advice about the treatment of similar controversial and
high-profile cases as the Ellis case. I accept that it Is vital for the reasons
set out in Ms Sim's letter that the Government is
provided with "clear, considered and
uninhibited advice ... " when it is considering such inquiries as the
manner in which the Court's have exercised their judicial functions in the
Ellis case. I am not persuaded that disclosure of the sentence in question
would prejudice the future provision of free and frank opinions by officials in
similar circumstances. In corning to this view, I have also taken into account
the following comment in Ms Sim's letter that:
"…the point made by this sentence is essentially set out in other
parts of the Ministry advice released to Ms Rich in a less blunt and focused
fashion.(see (sic) for example, see the second paragraph under section (3) on
page 6 of the Ministry advice),"
My provisional view is therefore that section 9(2)(g)(i) does not apply to the
information at issue and the information should be released accordingly.
I am of course happy to consider any comments you may wish to make. However, if
you accept my provisional view I would be grateful if you would proceed with
release of the information and advise me when it has been released.
I look forward to receiving your response as soon as possible
Yours sincerely
John Belgrave
Chief Ombudsman