Introduction

The following guidelines have been updated in line with Cabmemo 97/26/2 in order to provide chief executives with guidance in making decisions on whether and when it is appropriate to consult other departments or Ministers of the Crown.

Recent discussions and events have highlighted the need for chief executives to be conscious of the value of adequate consultation in deciding whether to release information under the Official Information Act 1982.

These guidelines are not intended to replace the legal requirements imposed on chief executives by the Official Information Act¹, rather, they have been issued to provide assistance in situations where the collective interest of Government is involved. It remains, of course, a matter for the judgement of the chief executive whether it is necessary in the particular instance to consult.

The guidelines also provide information on the transfer of requests and release of information.

A. When Should Departments Consult?

The Official Information Act provides [s15(5)] for consultation with Ministers or another department when reaching a decision on any request. Consultation is necessary:

• as a matter of courtesy;
• to make the other department(s) aware of the request and of your proposed action;
• to check whether similar requests have been made of the other department(s) so that consultation and co-ordination can occur to ensure that a stance taken by one department is not undermined by another.

Consultation with other departments should normally occur when:

• a joint working party has produced some or all of the information which is the subject of the request.
• another department has provided substantial or critical input into the information requested, for example, Cabinet papers often contain advice specifically proffered by another department.^*
• the information sought contains material that relates to the activities of another department or that may result in publicity for another department.^*
• it is clear that a request has been made to more than one department e.g. if addressed "All Chief Executives". (A check should then be made through the Minister's office to see which other departments have received the request.)

The Official Information Act has not removed the duty on a public servant to keep the relevant Minister fully informed. It is important to consult with Ministers where release is likely to lead to public comment on a political issue. Consultation over an Official Information Act request gives a Minister an opportunity to comment on any political issues or matters relating to government management.

It would be appropriate for departments to consult their Minister when:

• requests are received from the Opposition, the Opposition Research Unit, recognised interest groups or the news media especially where the information is particularly sensitive;
• the subject matter is controversial and likely to lead to questions of Ministers;
• facts, opinions or recommendations in the information are especially quotable or unexpected;
• the information reveals important differences of opinion among Ministers or agencies.

B. How to consult?

There is no special procedure for consulting with a Minister or another department regarding an official information request. Departments may wish to develop their own procedures for such consultation. One possibility might include nominating an Official Information Act officer to be responsible for co-ordinating any Official Information Act requests and to act as a point of first contact for other departments seeking to consult.

Attention is drawn to the guidelines promulgated by the Prime Minister's office on consultation between Ministers' offices (attached). Essentially these provide for the Private Secretaries and Press Secretary in each office to be responsible for the managed release of Official Information Act requests by Ministers' offices.

NOTE: Communication is the key factor which will assist in consultation.

C. Transferring a request

If it is decided that the request should be transferred section 14 of the Act requires transfers of requests to be made promptly, and in any case not later than 10 working days after the day on which the request is received and to inform the requester accordingly.

Examples of situations when it may be appropriate to transfer a request to another department include where:

• a document held by the department was prepared by another department. The request as it relates to that document could be transferred to that other department;
• the department holds a document produced for an officials' committee which was chaired by another department. Again the request as it relates to that document could be transferred to that other department;
• during consultations another department or a Minister considers there is good reason to withhold information which the department receiving the request is not as well placed to judge.

A request might be transferred to a Minister when:

• requests are received from the Opposition, Opposition Research Unit or recognised interest groups - the request might be transferred to the appropriate Minister after consultation with the Minister's office.
• the information to be released is more closely connected to the functions of the Minister (such a step would reflect the constitutional relationship between the chief executive to the Minister and would also meet the requirements of the Official Information Act).

D. Releasing information

Once due consideration has been given to the advice of another department a decision will need to be made whether to release the information, decline the request, or transfer the request under section 14. Different decisions can be made in respect of the particular pieces of information that have been requested.

If a department decides to release a Cabinet paper or Cabinet Minute, the Cabinet Office should be informed of the reference number of the paper(s) being released and to whom they are being made available. (Ref para 6.3 Cabinet Office Manual)

In some cases a decision may be made to release information knowing that the other department(s) thinks it should be withheld. If this occurs the other department(s) should be given reasonable notice prior to releasing the information. A week is suggested as a minimum period of notice.

Statutory time limit requirements

Section 15 requires that decisions on requests be made as soon as reasonably practicable and in any case not later than 20 working days after the day on which the request is received;

Section 15A provides for an extension of the above time limits, and that any such extension must be notified to the requester within 20 working days after the day on which the request is received.

Official Information Paper

Some departments have found that information properly released under the Official Information Act has subsequently been publicised as a "leak". To minimise this happening it is suggested that the information can be photocopied on special paper, marked "RELEASED UNDER THE OFFICIAL INFORMATION ACT". This paper is available from GP Print.

If you have any queries about the guidelines please contact Ann Aspey of the State Services Commission's Legal Division, tel 04  495 6754.

M C Wintringham,
State Services Commissioner

¹ The Act recognises departments as entities separate from the Minister in relation to Official Information Act requests. Section 15 (4) requires that the chief executive or his/her delegate must make the decisions on any request to the department. Subsection (5) of that section provides, however, that subsection (4) does not prevent consultation with a Minister or any other person in reaching a decision on any request.

^* In these instances there may be good grounds for transferring the request to the other department - refer Part C

^* In these instances there may be good grounds for transferring the request to the other department - refer Part C