THE OFFICIAL INFORMATION ACT 1982 & PARLIAMENT

Transcription

1 THE OFFICIAL INFORMATION ACT 1982 & PARLIAMENT (A Discussion Paper Prepared by the Public Law Committee 1 of the Wellington Branch of the New Zealand Law Society) INTRODUCTION 1. In recent months much public attention has focused on travel, and accommodation and other expenses incurred by New Zealand s MPs, following voluntary disclosure by the Speaker in 2009 and again in These expenses are funded through the Parliamentary Service and as such, are not subject to the Official Information Act 1982 (OIA). Consequently, these were the first published disclosures in New Zealand of such information outside of the election cycle. The release of this information highlights the anomaly of Parliament s exclusion from the OIA. 3. The impetus for the disclosure may have been, in part, concern in the United Kingdom about MPs expenses. 4. Another contributing factor may have been the New Zealand Auditor- General s 2006 inquiry into election expenses. He found that significant breaches of the appropriations administered by the Parliamentary Service occurred in the lead up to the 2005 general election. Electioneering material was paid for out of resources appropriated for MPs and parliamentary parties advertising. The Parliamentary Service was criticised for not satisfying itself, before expenditure was incurred, that its purpose was consistent with the relevant appropriations. 5. The Public Law Committee welcomes the voluntary disclosure of MPs travel expenses. It considers that there is real value in this information being available to the public. However, it considers that it would be better if this information had been available under the OIA and be subject to the independent scrutiny that Act provides. 6. This paper therefore looks at whether the OIA should apply to information relating not only to the expenditure of public money by or on behalf of MPs but also to MPs activities more broadly and to information held by Parliament. 1 This paper was prepared by the 2009/10 Public Law Committee. One member of the present committee expressed a different view from that presented in this paper

2 Release of information held by Parliament is at present restricted to that either provided under the Public Finance Act 1989 or through inquiry reports by the Auditor-General. Otherwise, any rules on what is released are determined by Parliament itself. 7. In one sense, MPs travel and accommodation entitlements and expenses are somewhat distracting. What MPs do for their constituents, and what Select Committees do when considering Bills, has a much more significant, and less costed, impact on the country than MPs expenses. Making these actions more transparent will benefit not only the public, but also MPs themselves. It will assist in understanding the context in which MPs operate leading to a more open discussion about the value we see in them and in the Parliamentary process. It also gives us reassurance about the propriety of Parliament and the law-making process. 8. We also consider that, more generally, transparency and public accountability are essential in the areas of expenditure on parliamentary operations and political decision-making processes. The desire for greater transparency of actions of the Executive branch of government, with independent oversight by the Ombudsmen, was one of the reasons for enacting the OIA. The OIA aims to increase the availability of official information to enable the people of New Zealand to more effectively participate in the making and administration of laws and policies, and to promote the accountability of Ministers and officials. Both of these purposes are intended to enhance respect for the law and promote the good government of New Zealand. The Committee considers that consideration should be given to applying the OIA to Parliament, for the same reasons. Outline of this paper 9. With the status quo being exclusion of Parliament and significant components of its Members and other participants business from the OIA, do the arguments for its exclusion which have prevailed over the last 30 years or so remain valid? Or are there now good arguments to suggest that there should be some changes resulting in the application of the OIA to key aspects of Parliament s business?

3 10. In our assessment, the key arguments or assumptions for not applying the OIA to Parliament are: most of Parliament s proceedings are held in public and most other information about Parliament is made public under Parliament s Standing Orders; to the extent it is provided for, privacy within Parliamentary proceedings (such as in the private deliberations of select committees) is important to allow for best legislative and policy results without undue party or public pressure - i.e. there is already considerable amount of transparency, and where the release of information is delayed, the period of delay is reasonably limited; although the Office of the Clerk is not subject to the OIA, it adopts an approach of voluntary disclosure, applying the principles of the OIA to requests for information it holds; the Speaker s Directions on MPs travel, accommodation and other allowances contain principles of openness and transparency, which should encourage voluntary disclosure; it may be seen as constitutionally improper for MPs to come under the OIA since they are not part of the Executive (i.e. Ministers and public sector agencies). Similarly, some may consider that applying the OIA to Parliament would unduly open up political processes to scrutiny; most Members offices do not have the resources to deal with OIA requests. 11. In order to address these arguments, this paper begins by briefly discussing Parliament s constitutional position. It goes on to examine the history of Parliament s exclusion from the OIA and looks at the extent to which matters occurring within Parliament are otherwise made available to the public. It reviews the types of information held by the various institutions of Parliament and by Members, considers reasons that may justify exclusion of particular types of information that would be held by Parliament s institutions and Members from the OIA, and concludes with recommendations

4 PARLIAMENT S CONSTITUTIONAL POSITION 12. New Zealand's Parliamentary foundations are based on the Westminster institutions, and in particular on the constitutional law principle of parliamentary sovereignty. New Zealand inherited traditions of "national sovereignty, legality, due process and the supremacy of law". 2 Following on from this inheritance, there has developed a demand for increased accountability of public expenditure together with "energised rights jurisprudence", 3 reflecting a growing consciousness both within and outside Parliament of the need for greater transparency and accountability to the public of New Zealand. The social contract between Parliament and the people depends on trust; the call for transparency reminds Parliament of the need to nurture that trust. 13. Thus, while the principle of parliamentary sovereignty and the doctrine of separation of powers is important, and these could be compromised if the OIA were to apply to Parliament, so too are the principles of transparency and accountability. Applying the OIA to Parliament would be consistent with these latter principles. Also, it seems consistent with the principle of parliamentary sovereignty for Parliament to decide to amend the OIA so that the Act applies to it. If a subsequent Parliament was not happy with this, it could amend the OIA. 14. Three significant practical concerns that are likely to be raised about applying the OIA to Parliament are that: (a) (b) (c) where a complaint is made to the Ombudsman about a refusal to release requested information, an Officer of Parliament will end up reviewing the actions of Parliament; at present under the OIA, if any information is not provided on request to the Ombudsman, the matter is referred to the Prime Minister in the first instance 4. This would not be appropriate in respect of Parliament; and there is a risk of Parliamentary proceedings being brought under the review of the Courts. 2 Joseph, "Constitutional and Administration Law New Zealand" (3 rd edition, 2007), p4. 3 Ibid p 8. 4 Section 19A, OIA

5 15. The Public Law Committee considers that the first concern should not be seen as an issue for several reasons. The Ombudsman already has the power to review decisions under the OIA of other Parliamentary Officers, such as the Commissioner for the Environment. It seems to the Public Law Committee that it would be desirable in an open and free democracy for Parliament s proceedings to also be subject to the OIA. Second, the Ombudsman s role is to apply the OIA, as passed by Parliament. Parliament itself therefore has control over the rules it has to meet. 16. The second concern should also not be an issue, as the OIA could be amended to provide for the Ombudsman to refer the matter directly to Parliament, rather than to the Prime Minister. 17. The third concern may be more real. However, existing case law shows that the Courts would exercise restraint in considering any matter that came before them relating to the application of the OIA to Parliament, in respect of the doctrine of the separation of powers. 5 Further, Parliament is not subject to the rules of administrative law, so the disclosure of information about its proceedings does not carry a risk of judicial review. If scrutiny of Parliament s proceedings under the OIA by the Courts were nevertheless a concern, the Court s powers to review issues that may arise under the OIA in respect of Parliament could be limited by express provisions in the OIA. 18. The Public Law Committee notes that the previous Speaker of the House, Hon Margaret Wilson, sees merit in extending the coverage of the OIA to matters relating to the administration of Parliament. She has stated that: it would, in my view, greatly improve parliamentary administration if there was the discipline of the OIA provisions, with the necessary provisos of protecting the privacy of constituents It would make little difference to current practice relating to Parliamentary proceedings. 6 INSTITUTIONS OF PARLIAMENT, MEMBERS AND PARLIAMENT S AGENCIES 19. In order to properly consider the question of whether the OIA should apply to Parliament, it is necessary to first understand the structure of Parliament and its agencies. They are:: 5 See Awatere Huata v Prebble [2005] 1 NZLR 289 (SC) and the Bill of Rights Keynote address to Information Law Conference, 15 May

6 19.1 Parliament: Parliament is made up of the Sovereign in right of New Zealand and the House of Representatives, and has the power to make laws. The Sovereign is represented in New Zealand by the Governor-General The House: The House of Representatives principal roles are to represent voters, hold the Government to account for its spending, policies and actions, and as part of Parliament pass new laws and amend existing ones. The House is made up of Members Members: Members are of course elected at general elections, either by constituents in electorate seats or on party lists. Members of both types have significant responsibilities representing constituents Speaker: The Speaker is a Member. In addition to chairing meetings of the House, the Speaker is responsible for the governance of the Parliamentary Service, the Parliamentary Service Commission and is responsible for the financial appropriation allocated to support Members in Parliament. He is deemed to be a Minister by the Public Finance Act 1989 for the purposes of the Parliamentary appropriation. 20. In carrying out its functions, Parliament is supported by various agencies: 20.1 Parliamentary Service Commission: advises the Speaker about the services to be provided to the House of Representatives and Members, and the objective of those services. The Parliamentary Service Commission ( the Commission ) is made up of representatives from each of the parliamentary political parties and is chaired by the Speaker Office of the Clerk: assists the Clerk of the House to provide the Speaker and Members with specialist parliamentary procedure and legal advice, and professional and administrative services Parliamentary Service: provides administrative and support services to the House, and to Members, and administers payment of entitlements to Members in accordance with the Speaker's Directions. 21. In preparing this paper, the Public Law Committee has focused on whether the OIA should apply to the three agencies listed in paragraph 20 above, to

7 the Speaker (as the Minister responsible for Parliament s financial appropriation), and to the House of Representatives. This is because between them, they should hold all information relating to the proceedings of Parliament, other than information held by the Governor-General as the representative of Sovereign in right of New Zealand (i.e. the Queen) 7. In respect of this latter category of information, the Public Law Committee understands that it would already be subject to the OIA, as all relevant information would be held by the Department of Prime Minister and Cabinet 8, which provides advice to the Governor-General. The Public Law Committee also notes that section 9(2)(f)(i) of the OIA already provides a ground for withholding information in order to protect the constitutional conventions for the time being which protect the confidentiality of communications by or with the Sovereign or her representative. 22. The Public Law Committee s view is that by making the House of Representatives subject to the OIA, Members would also be covered. This is because section 10(4) of Constitution Act 1986 provides that the House is comprised of Members. The Public Law Committee also considers that by using the term House of Representatives bodies such as select committees and the Business Committee would be covered 9. SOME HISTORY 23. When initially enacted, none of Parliament s institutions and agencies, nor Members, were subject to the Ombudsmen Act Neither were they subject to its predecessor legislation. They were not included in the persons or entities in the Act s First Schedule, which identifies exhaustively those persons and bodies subject to the Ombudsmen s jurisdiction. 24. The Parliamentary Service Act 1985 (PSA 1985) added the Commission to the First Schedule to the Ombudsmen Act If the normal approach under the OIA had been followed, the OIA (enacted three years earlier) would therefore have applied to the Commission, as it automatically applies to all organisations listed in the First Schedule of the Ombudsman Act. However, the Commission was expressly excluded from the OIA s definition of 7 Such as information on assenting to Bills. 8 The Department of Prime Minister and Cabinet is listed in Schedule 1 of the Ombudsman Act and is therefore subject to the OIA. 9 See section 2(2) and 2(3) of the Official Information Act

8 "organisation", set out in section 2 of the OIA. This approach was effectively continued under the Parliamentary Service Act 2000 (PSA 2000), although consideration was given to applying the OIA to Parliament. 25. This consideration occurred as part a review of the PSA 1985, which preceded the PSA The committee conducting the review noted at paragraph that the original rationale for not including the Commission and the Parliamentary Service in the OIA was that they did not form part of the Executive and therefore it was constitutionally inappropriate to include them. The Review Committee considered this rationale to hold less weight due to the subsequent addition of non-executive agencies (such as the Parliamentary Commissioner for the Environment) to the OIA s reach. The Review Committee did not see "any fundamental reason the open government principles of [the OIA] should not apply in the arena of parliamentary services, so long as there are necessary exceptions such as those protecting the independence of a member" (para 5.9.2). 26. The Review Committee recommended extending the OIA s reach to include the Speaker, as responsible Minister, and the Parliamentary Service, as they held the appropriate accountability information regarding services provided to Parliament and Members (para 5.9.4). The Review Committee recommended that some information be excluded from the OIA s coverage. In particular, information "generated, collected and held directly by members in their capacity as members, or to information relating to Parliamentary party policies, or party organisational material" (para 5.9.5). The Review Committee, although not providing a suggested draft, considered this exclusion could be achieved by adding a new paragraph to section 6 of the OIA. This could cover politically sensitive information of the kind represented by party affairs such as policy papers, and a provision similar to that applying to tribunals or universities, which excludes certain functions but leaves administrative functions covered (para 5.9.7). 27. As will be seen from the following analysis, the Committee agrees in large part with the rationale and suggested solution of the Review Committee. 10 Report of Review Team on A Review of the Parliamentary Service Act to the Parliamentary Service Commission (February 1999)

9 THE POSITION OVERSEAS 28. In the United Kingdom, information held by the House of Commons and the House of Lords is subject to the Freedom of Information Act 2000 ( the FOI ). However, the FOI does contain exemptions from disclosing information. Interestingly, a proposed regulation to exclude Members expenditure information held by either House of Parliament from the FOI s scope was abandoned in 2009 following opposition from the public and some Members. 29. In Australia, the Commonwealth Freedom of Information Act 1982 does not apply to either House of Parliament or to Members or Senators. However, legislative bodies in the Australian Capital Territory, the Northern Territory and Norfolk Island are covered. 30. In Canada, federal legislative bodies are not covered, but some provincial legislative bodies are. 31. In the Public Law Committee s opinion the approach in some overseas jurisdictions that also operate Westminster democracies confirms that there is no good reason for a blanket exclusion of Parliament from the OIA. EXISTING RULES ON DISCLOSURE OF PARLIAMENTARY INFORMATION 32. We acknowledge that even without the OIA s application, Parliament has developed more open and transparent procedures. Like New Zealand s constitutional arrangements generally, some of these have the force of law, others of convention. Successive revisions of the Standing Orders (SOs) have moved to create a more open culture, albeit limited to proceedings of the House and its committees. Public access to debates in the House and Select Committees, and initiatives such as televised debates of the House are consistent with a desire by Parliament itself to be more open to the public in New Zealand. We cover the most relevant below. Standing Orders One of the Public Law Committee s concerns is the lack of transparency regarding key elements of the Select Committee process when considering Bills. One concern relates to the timing of the disclosure of the evidence the

10 Select Committee hears. The other concern relates to the lack of disclosure about their deliberations. 34. Under SO 235(1), Select Committee proceedings, other than during the hearing of evidence, are closed to the public and remain confidential to the committee until it reports to the House. We acknowledge that there are a number of exceptions to this general proposition and detailed procedural extensions of it. 35. The SOs do not prevent disclosure to somebody else within the Parliamentary structure in the course of a person's duties, or disclosure of proceedings in accordance with other Standing Orders. The rule in SO 235(1) does not apply to proceedings unrelated to any business or decision still before the committee; nor do these apply to proceedings relating to matters of process or procedure, that do not either (1) relate to decisions on matters still before the committee, including substantive proceedings regarding business before the committee; or (2) reflect or divulge the contents of a report, draft report, or the committee's potential findings. (SO 235(3)). 36. SO 236(1) and (2) echo SO 235(1) and (2) but provide specifically for reports or drafts of reports. The rule under SO 235(1) is further relaxed by SO 238, which allows a Select Committee s chairperson, with the Committee s agreement, to make a public statement regarding the nature of the committee's consideration of the matter. The Select Committee may, under the same rule, make its proceedings available to any person for the purpose of assisting in the Committee's consideration of the matter. 37. SOs 235, 236 and 238 raise an important issue of principle. It is widely agreed that under MMP, Select Committees inquire into both the policy justification and the workability of proposed legislation. SOs 235 and 236 in particular are premised on the need to protect Select Committee deliberations from scrutiny in order to minimise external lobbying once the submission process is completed. However, while the Public Law Committee sees that principle as being important during the deliberative process, we see no reason why the internal political dialogue, advocacy and compromises should not be made public, either in the Select Committee s reports or by a transcript released at the same time. Public Law Committee members are aware of recent examples of Select Committees reporting back Bills with significant

11 amendments to address matters that the Government knew about before the Bill was introduced but that were not initially dealt with. In many cases, the reasons for the amendments have not been very well explained in the Select Committee s report. In one case, the amendment was not even described in the Select Committee s report. Parliament enacted the amendment, but without the benefit of an explanation as to why the Select Committee made the change. 38. Written submissions to a Select Committee may be made publicly available at any time after they are received by a committee (SO 213(1)). Those submissions are automatically made publicly available upon the Select Committee hearing oral evidence from the submitter (SO 213(2)). The normal practice of Select Committees is to release submissions to those present at the hearing, and to make them available on request to any other party. This does not prevent the parties who make submissions from releasing the submissions to the public at any time (SO 213(3)), but this happens infrequently. Oral evidence to committees is by default in public (see SO 214), but interested parties need to be present in order to hear the evidence. The Public Law Committee considers that these arrangements do not go far enough in making submissions available and, in particular, that releasing submissions only at the oral hearing stage can be too late to be useful. The Public Law Committee therefore suggests, in addition to applying the OIA to Parliament, that Select Committees routinely disclose submissions at an earlier stage of their process as standard practice. Our preference is for the submissions to all be available on Parliament s website, a practice that has been trialled by some Select Committees, as soon as possible after their receipt. This may require either a small amendment to SO 213 or maybe only a change to the way that Select Committees operate under SO A Committee can label written or oral evidence as secret and hold it confidentially. This can occur in two situations: (1) if the information the committee "wishes to obtain" can only be obtained by assuring a witness or information holder that the evidence will remain confidential (SO 215(1)(a)); and (2) if the committee "is satisfied that it is necessary to do so to protect the reputation of any person" (SO 215(1)(b)). 40. Such evidence may not be disclosed to any other person unless expressly authorised by the House (SO 215(3))

12 41. The status of information not subject to the SOs that is held by Members, the Parliamentary Service, or the Commission is unclear. The repeal of the Official Secrets Act 1950 by the OIA means that the information is not legally secret. However, there does not seem to be any enactment or written rule touching on how the information holders should respond to requests for such information, including requests from persons seeking their own personal information. Although some of this information might be released in the short or long term, this is at the discretion of the person or body holding the information. There is no underlying obligation to make that information available, except where specific withholding grounds apply, as under the OIA. In any case, even if released later, information will probably have lost its immediacy and usefulness, particularly if the relevant legislation has been passed. 42. We also note that the SOs do not have the status of legislation, so are more easily changed, and indeed are generally changed by each House of Representatives. Further, they are enforced by the House itself. Information already subject to the OIA 43. In many cases, information held by Parliamentary bodies will also be held by organisations subject to the OIA. For example, submissions and reports to Select Committees may be held by the Government department advising the Committee. Similarly, draft Ministerial speeches are held by the Minister s office and often a department. 44. The OIA may already contain grounds for withholding this information; for example, if disclosure would breach Parliamentary privilege (s 18(c)) or if a section 9 reason applies. The key points, however, are that this information is already subject to the OIA, and that there are provisions already in the Act for protecting it (although a question considered below is whether s 18(c) should be retained, if the OIA is applied to Parliament). Moreover, this begs the question of why Parliament s institutions and agencies, and Members, should not be subject to the OIA. Significantly, we would argue that the public should not have to rely on indirect channels to obtain disclosure. Anecdotal evidence suggests that the information for which the greatest need for accountability exists, such as on expenditure, is unlikely to have been passed to the entities covered by the OIA

13 APPLICABILITY OF THE OIA TO TYPES OF INFORMATION 45. The Public Law Committee considers that there are good reasons for making the House of Representatives and the Parliamentary agencies listed above subject to the OIA, at least in respect of certain activities and/or types of information. Indeed, the Public Law Committee considers that the OIA provides a useful framework to manage the tension between independence and accountability. It is therefore worth considering the kind of information that may be held by the different Parliamentary entities and the likely effect of applying the OIA to that information. 46. Broadly, information held by these entities can be divided into: (1) information relating to proceedings of Parliament in particular, information produced or considered in select committees; (2) information about the administration of Parliament namely information produced or considered by the Commission, the Parliamentary Service and the Office of the Clerk and information held by the Speaker (as the Minister responsible for Parliament s financial appropriation); (3) information held by Members as Members of Parliament; and (4) information held by Members as Members of a political party. Information relating to proceedings of Parliament 47. Proceedings in the House of Representatives are generally held in public. Predominantly it is only certain information relating to the proceedings of Select Committees that is not made public or whose release is delayed. 48. Information is not held by Select Committees as such (as they are committees of the House and not incorporated bodies in their own right), but by others in Parliament. This could be Members, the Parliamentary Service, and the Office of the Clerk. By applying the OIA to the House of Representatives and these agencies, information about select committee proceedings would become subject to the OIA. Information about select committee proceedings can also be held by Ministers and by Government Departments acting as advisors to

14 Select Committees, and to this extent information is already subject to the OIA, but those agencies subject to the OIA will not necessarily hold all the information relating to such proceedings. 49. This information could relate to a number of different matters. It could, for example, relate to a Select Committee inquiry or a petition. It could relate to a Bill, a financial review, estimates, an international treaty or any other matter. 50. A good deal of legislative decision-making occurs during, and outside, Select Committee deliberations. The public is only able to access information on the outcome of those deliberations. Information on the trade-offs made by political parties cannot be scrutinised by the public, except where it is voluntarily released (usually for political purposes and very selectively). The Committee has considered the argument that Select Committees and MPs need to work in private to come up with the solutions rather than being distracted by party political matters. However, given the MMP environment in which government now operates, this argument is not convincing. The public has an interest in knowing if a party s publically presented position matches up with its position behind closed doors. 51. There is, therefore, a strong interest consistent with the purposes of the OIA stated in section 4 in making this deliberative information subject to the OIA, and able to be obtained under the OIA. At the same time, the Public Law Committee acknowledges that there could be good reasons for not making some of this information available. 52. In this regard, there are already grounds under the OIA to justify withholding some of this information; for instance, if it would breach the SO or if it would breach Parliamentary privilege under section 18(c) (although we question below whether section 18(c) should be retained). 53. Depending on the type of information, other grounds for withholding could apply. For example, information relating to estimates and international treaties might be withheld under section 6(b), and section 6(e) will apply if premature disclosure of decisions could seriously damage the New Zealand economy. In the case of petitions, information supplied confidentially to a Select Committee considering a petition could be withheld to avoid prejudice to the maintenance of the law (section 6(c)) or to avoid endangering the safety of any person (section 6(d))

15 54. In some cases the reasons for withholding information under section 9 might apply. For example, the temporary withholding of information relating to the consideration of Bills (section 9(2)(f)), particularly if it relates to confidential advice tendered by Ministers and officials, or to the free and frank expression of opinions (section 9(2)(g)(i)), might apply. The commercial grounds for withholding information (i.e. sections 9(2)(b), (ba) and (i)) and privacy (section 9(2)(a)) may also apply in some cases. 55. Some changes to the OIA might be needed to deal with advice provided to Select Committees in confidence, if section 18(c) of the Act is not retained (see below for further discussion of this issue). This might include changing sections 9(2)(f) and (g) to recognise that officials provide free and frank advice to Select Committee members and to recognise the confidentiality of Select Committee deliberations. 56. Other changes might include new grounds for the withholding of evidence provided to Select Committees in accordance with SO 215(1)(a) and (b), discussed above. Arguably, section 9(2)(ba) of the OIA, which allows the withholding of information given under an obligation of confidence, would allow evidence given under these Standing Orders to be withheld. However, that ground for withholding can be overridden if there are considerations that render it desirable, in the public interest, to make that information available. An argument could be made to amend section 6, to incorporate one or both of SOs 215(1)(a) and (b). 57. A similar issue is whether the discretion under SO 213(1) to withhold written submissions until oral evidence is heard should provide for a ground for refusing a request for those submissions under the OIA. 58. The Public Law Committee acknowledges that a number of issues would need to be considered, such as those above. The Public Law Committee considers that these should not be insurmountable matters. 59. While it is not certain that the OIA will achieve the transparency desired of Parliamentary proceedings, the Committee suggests that it would provide a stronger platform for such transparency than exists at present

16 Information about administration of Parliament 60. Information about the administration of Parliament will generally be held by either the Office of the Clerk of the House, the Parliamentary Service Commission or the Parliamentary Service. The Parliamentary Service Commission 61. The Commission advises the Speaker on matters to be included in the Speaker's Directions. The Commission s role is to advise the Speaker on administrative matters, not on the constitutional functioning of the House. The information it holds will therefore relate to administrative matters. It seems hard to find a policy justification for excluding such advice from the OIA s reach. The Parliamentary Service and the Speaker 62. As mentioned earlier, the Parliamentary Service provides administrative and support services to the House, to Members, and administers payment of entitlements to Members in accordance with Speaker's Directions. It also provides administrative and support services to any officer of the House or Parliament, any office of Parliament, and, with the Speaker s approval, "any department or other instrument of the Crown" (section 9(1)). Support can, with approval, be given to candidates in elections (sections 9A-9C). 63. There does not seem to be any good reason why information relating to these administrative and support services should not be subject to the OIA. 64. The Public Law Committee also notes that under the Public Finance Act 1989, the Speaker is the Minister responsible for the financial appropriation allocated to support Members in Parliament. Given this fact, there does not seem to be any good reason why information relating to Parliament s finances should not be subject to the OIA. It does not seem consistent with good government that this area of significant public expenditure ( budget of over $129 million 11 ) is only subject to the scrutiny of the Auditor-General. 65. The fact that the political parties have voluntarily agreed to the regular release of Members travel and accommodation expenditure information begs the question of why access to this information is not by entitlement rather than by

17 favour. The Public Law Committee notes the principles of openness and transparency incorporated in the Speaker s Directions. It also brings into question the accountability of Members tax payer funded annual allowance (currently $14,800 per annum). There is no avenue for scrutiny of what Members spend this allowance on, and it is not subject to the voluntary disclosure arrangement described above. 66. No doubt the current arrangement works largely as intended in terms of the appropriate use of public funds. However, prior to the recent voluntary disclosure, and in the absence of a mandatory regime, there will never be an ability to scrutinise these assumptions by the operation of a disclosure regime. Importantly in terms of the principles underlying the OIA, there also will not be disclosure requirements based on the principle of availability and independent review. The Public Law Committee considers that as representatives of the public, there is a need for Members expenditure (as funded by the Parliamentary Service) to be transparent in order to maintain public confidence and trust, and avoid allegations of corruption. 67. The Public Law Committee therefore considers that there are good arguments for applying the OIA to the Parliamentary Service and to the Speaker (as the Minister responsible for Parliament s financial appropriation). Office of the Clerk 68. The Office of the Clerk is the Secretariat for the House of Representatives. 69. It is not subject to the OIA, although we understand that its practice is to behave as if it is and that it approaches the release or withholding of information about its business as if under the OIA regime. 70. As with the Parliamentary Service, we see no principled or practical reason why the information it holds in relation to its business should not be formally covered by the OIA, subject to any additional provisions needed to protect information relating to Parliament s proceedings or Member s business, as discussed elsewhere in this paper. Information Held by Members of Parliament As Members of Parliament 71. This category raises the question of whether Members acting in that capacity should be made subject to the OIA and, if so, what if any types of information

18 they hold should be within the ambit of the OIA. The Public Law Committee suggests that, provided adequate protection is given to certain kinds of information as outlined below, it would be appropriate to apply the OIA to Members. 72. By way of definition, this category covers information regarding a range of Members functions. It includes: information held by Members as Select Committee Members or as persons addressing the House in the course of its proceedings; communications with constituents or other petitioners seeking the Member's assistance in the petitioner's personal concerns; information a Member receives from a Minister following the Member s request for information regarding a petitioner or constituent s concern; information provided to a Member as a Member in connection with what is or might occur in Parliament; and information held as a Parliamentary member of a political party. 73. Our discussion has already addressed Members involvement with Select Committees. In regards to Members addresses to Parliament (for example speeches or questions, points of order, etc) these become public as soon as they are made. Prior to being made, this information could be withheld under section 18(d) of the OIA (information soon to be publicly available), if public release is imminent. In addition, the grounds under section 6 (conclusive reasons for withholding) and section 9 (good reasons for withholding), might apply for the reasons discussed earlier in relation to Select Committee proceedings. Accordingly, with minor amendments to the OIA, adequate protection would exist for withholding that information. 74. Given this, the Public Law Committee suggests that there is no good reason why the OIA should not apply to this kind of information. 75. A Member's work on behalf of constituents or petitioners can be considered in different parts. First, if and when a Member communicates with a Minister or department regarding a constituent's concern, that information falls within the OIA as being held by a department or Minister. In turn, information provided by the Minister or department to the Member in reply falls within the OIA for the same reason. Therefore, the blanket exclusion of this area of a Member's work as a whole seems inconsistent on principle with existing rights of access to information in the OIA

19 76. The second part is communications between the constituent and the Member before any communication with a Minister or department and any information provided to or advice given by the Member which is not communicated to the Minister or department. Assuming it is appropriate to exclude this information from the OIA s reach, such an exclusion could be achieved by either a general exclusion or by drafting a targeted exclusion. 77. The form of such a targeted provision would need to distinguish between Member/Constituent communications or Member/Petitioner communications depending on whether or not they culminate in a communication with a Minister or department of State. Section 9 of the OIA could be amended to allow for the withholding of "communications between a constituent or other person and a Member of Parliament as Member of Parliament but which is not communicated to a Minister, department, or organisation", as an alternative to utilising the Privacy Act approach. It is likely that many of the existing OIA grounds for withholding (for example, to protect the privacy of an individual, commercial prejudice and so on) would apply. 78. The Public Law Committee accepts that a general exclusion for this second part would be more appropriate. Responding to OIA requests, even if the provision was targeted, would be time-consuming. It may also have a chilling effect on Member constituent (and not all people who seek assistance from Members are their constituents) communications. As against this, the recent egregious, and criminal, activity by Taito Philip Field MP vis-à-vis several constituents indicates that total exclusion from the OIA is not necessarily desirable. This issue, in particular, would warrant further consideration as part of the overall question of whether the OIA should apply to Parliament. Information Held by Members of Parliament as Members of a Political Party 79. The fourth category is information held by a Member by virtue of being a member of a particular political party. Political parties are not entities subject to the OIA, although they are subject to the Privacy Act Accordingly, a principled basis exists for excluding this information altogether from the OIA. A possible approach would be to allow Members to withhold information where disclosing it would prejudice the political affairs of a party

20 81. In our view, this would put Members on the same footing as Ministers. From the early days of the OIA, the Ombudsmen have held that information held as a Member or as a Minister due to membership of a particular political party is not subject to the OIA. 82. There may be some cases though which are harder to exclude. As the 2006 Office of the Auditor-General ( OAG ) report noted, parliamentary practice distinguishes between a parliamentary party (which is given taxpayer resources for its operations ) and a political party (which is not entitled to such resources). 12 INFORMATION SUBJECT TO PARLIAMENTARY PRIVILEGE 83. As noted earlier, section 18(c) of the OIA allows information requests to be declined where disclosure would breach Parliamentary privilege. Among other things, this section allows information to be withheld if its release would breach the SOs. This means, for example, that information relating to proceedings of a Select Committee, other than proceedings during the hearing of evidence, can be withheld on the grounds that disclosure would be in breach of SO 235(1). 84. An issue to consider, if the OIA is to apply to Parliament, is whether section 18(c) should be retained or modified. If section 18(c) is retained, the House of Representatives would effectively be able to establish new grounds for withholding information under the OIA by amending the SOs without having to go through the full and more onerous parliamentary process that applies to the making of legislation. This could undermine the purpose of applying the OIA to Parliament s institutions and to MPs. 85. On the other hand, in order to protect Parliamentary privilege it is arguably necessary to retain section 18(c). This would also be consistent with the doctrine of the separation of powers. It may therefore be that section 18(c) should be retained as presently drafted. Alternatively, section 18(c) could be amended to more specifically describe the interests it is trying to protect without leaving it open for the House of Representatives to effectively amend the OIA through amending the SOs. 12 Office of the Auditor General, Advertising expenditure incurred by the Parliamentary Service in the three months before the 2005 General Election (Report B.29 [06],

21 86. This issue, in particular, would also warrant further consideration as part of the overall question of whether the OIA should apply to Parliament. Would the OIA restrict the independence of Members? 87. The argument that Members independence would be constrained by the OIA is, to an extent, true. That is, if by independence one means exempt from the presumption that the public is entitled to access information unless there is good reason for withholding it. The question that must be asked, however, is whether that independence is appropriate in today s society, at least in respect of some of the Members activities. Given the furore in the British Parliament, revelations in relation to electoral expenditure in the New Zealand Parliament, and the public discussion over the recently released travel and accommodation expenditure by our Members, there seems to be a societal demand for accountability and transparency of actions by elected officials. Arguments that somehow Members do not have to play by the same rules as others who hold public office no longer withstand scrutiny. 88. We also consider that public access would benefit MPs themselves, since it would highlight both the nature of their entitlements more accurately, and serve to emphasise that the vast majority of expenditure is no doubt routine and well merited. 89. Another concern is over whether applying the OIA to Members would place too much strain on limited resources within the offices of many Members. To alleviate this, Members might be able to rely on the Parliamentary Service for support in dealing with requests. Also, the OIA allows requests to be refused if the information requested cannot be made available without substantial collation or research (section 18(f)), although the Ombudsmen s approach to section 18(f), which sets a high threshold for this provision 13, may require refinement if this paragraph were to be relied on to ameliorate a problem of MPs resources. Further, if it is not possible to respond within the original time limit without unreasonably interfering with the operations of the Member s office, the Member could extend the time for responding under an appropriately amended section of the OIA. The Public Law Committee suggests that assistance from the Parliamentary Service and these two 13 Ombudsmen s Practice Guidelines Part B2.4, p 9: and the following Ombudsmen cases: W37846 ( ) 11 CCNO 127, W41228 ( ) 12 CCNO 178, W45790 ( ) 13 CCNO 123, and W49784 ( ) 14 CCNO 184, as well as Taylor, Judicial Review (2d edition, 2010), para 9.90.,

22 existing provisions would together be adequate to deal with any concerns over resourcing. RECOMMENDATION 90. In summary, the blanket exclusion of Parliament, its Members or constituent bodies from the operation of the OIA is strongly questioned. The Public Law Committee suggests that the existing grounds under the OIA for withholding information (with some amendments), with some additional reasons added to section 9(2) of the OIA, would be sufficient to protect the information held by Parliament that could justifiably be withheld. 91. The Committee therefore recommends that consideration be given to amending the OIA so that it applies to the three agencies listed in paragraph 20 above, to the Speaker (as the Minister responsible for Parliament s financial appropriation), and to the House of Representatives. June