Friday, May 04, 2012

Accountability is not harassment

Last month, FYI user Joshua Grainger made a request for recent Cabinet agendas. The request was refused [PDF], largely on grounds of collective responsibility, Ministerial confidentiality, and free and frank advice. The application of some of these grounds seems tenuous at the best (how would revealing the titles of Cabinet Papers undermine Cabinet collective responsibility? How would it inhibit free and frank advice from professional public servants?), so I decided to challenge it. To be certain of winning, I did so by requesting Cabinet agendas from 2009, so that the strongest of those grounds - Ministerial confidentiality, which protects the decision-making process from democratic input - would no longer apply. I also made it clear that where specific, identifiable grounds existed to withhold information (such as a Cabinet paper titled e.g. "Proposed Invasion of Australia", which could cause harm to international relations), I was happy to have that specific material redacted.

Naturally, the Cabinet Office refused my request, on the basis of (you guessed it) collective responsibility, Ministerial confidentiality, and free and frank advice. But to that they added another one: s9(2)(g)(ii), which protects Ministers and officials from "improper pressure or harassment".

The Ombudsman have guidance on this, in their Practice Guidelines [PDF]. And they're pretty clear about what "improper pressure or harassment" entails:

“Improper pressure or harassment” is something more than ill considered or irritating criticism or unwanted publicity. It is a course of conduct that has such an effect on the person against whom it is directed that he or she is unable to perform his or her duties effectively and hence the conduct of public affairs is at risk.


The agency must demonstrate that the prejudice or harm is so likely to occur that it is necessary to withhold the information in order to prevent that prejudice or harm from occurring. A mere possibility that prejudice could occur is not sufficient to meet the requirement under section 9 that withholding is necessary.

So, taking the Cabinet Office at their word - and of course they'd never conflate criticism, publicity, accountability or transparency with "harassment" to preserve their tradition of feudal secrecy - the Cabinet Office believes that releasing an agenda for 2009, listing decisions long-made and announced by the government, will suddenly lead to Ministers being attacked by psychotic stalkers (who presumably have not read the newspapers for the past three years). And they think this is not just a possibility, but a virtual certainty. And if you believe that, I have a round building in Wellington to sell you...

While it would be unfair to impute bad faith to the Cabinet Office, they seem not to have seriously considered the actual interests they are relying on to refuse this request. But hopefully the Ombudsman will educate them on that.