Friday, June 26, 2009

"Confidential advice"

Yesterday the government released Cabinet papers and advice relating to Budget 2009. The release has already resulted in some flak for the government, but browsing through it, there is a systematic pattern: just when things are beginning to get juicy, it is deleted:

in order to maintain the current constitutional conventions protecting the confidentiality of advice tendered by ministers and officials
A good example of this is Treasury's report on Vote: Tourism [PDF], which deletes information relating to "ideas arising from the job summit" - which means the cycleway. Given how shoddily Ministry of Tourism handled that project, I would love to see what Treasury thought of it. But Treasury clearly thinks I should not be allowed to.

So how good is their reason? While a public release is not an OIA request, they are clearly using the same grounds for deletion, both out of habit and anticipation of future requests. If it was an OIA request, the clause relied upon would be s9(2)(f)(iv). Here's what the Ombudsmen's Practice Guidelines [PDF] have to say about that clause:

In general terms, this section is often relevant where there is concern that release will prejudice the ability of decision-makers to consider advice. It will often arise where a decision-maker has an expectation that advice which has been tendered for consideration will remain confidential for a certain period of time.
(Their emphasis)

And of course it must be weighed against the public interest in release [PDF] (which, in the case of the Ministry of Tourism, is particularly high given their shoddy handling in the past)

If this document had been requested before the Budget, this reason would hold water. But now the Budget given, the decision has been made, and (most importantly) the advice considered. In other words, their "justification" for withholding information isn't. They may be able to hide it on other grounds ("free and frank advice" is a perennial favourite, senior policy advisors apparently being the sorts of people whose policy mojo will wilt forever if exposed to the light of day), but not on this one.

Unfortunately, a public release of information is not an OIA decision, and can't be appealed to the Ombudsmen. If we want this information without deletions, we have to OIA it, then (if necessary) appeal any deletions. I'm starting that process today, and other interested parties might want to do likewise.