In the months leading up to a general election, officials start preparing their Briefing to the Incoming Minister (BIM). In the months after the general election, these BIMs start getting released.
There are no strict rules about what goes into a BIM, and no special provisions about how or when they are released. They are produced under a convention recorded in the Cabinet Manual that “when a new Minister is appointed, the chief executive of the department concerned must ensure that, as soon as the Minister takes up office, he or she is briefed on the department and the portfolio”.
They range in size and approach, from a comprehensive stocktake of what is happening in the department or Ministry to a manifesto of the ideological drivers of the officials favoured approach to the particular policy.
Officials get some guidance from the State Services Commission http://www.ssc.govt.nz/node/8390, and although those guidelines say that “the briefing is for an incoming Minister only, and should be written accordingly”, it is well understood by most officials that one way or another the briefing will reach a the public, and as a consequence they have increasingly been written with a view to a wider audience. That is as it should be. Officials should prepare advice that to the greatest extent possible can stand up to public scrutiny. Allowing advice to be prepared in the knowledge that noone else will ever see it leads to sloppiness and inappropriate advocacy for particular doctrinal approaches that are untested by the electorate.
The most famous BIM was that prepared for the incoming finance ministers after the 1984 election. That document paved the way for the economic and structural reforms which catapulted the New Zealand economy from the “Polish Shipyard” approach to Lange’s cup of tea and a breather which after reforms in almost every element of economic , regulatory and social policy finally put the kybosh on Sir Roger Douglas’s flat tax.
Over the years it has become commonplace for BIMs to be released to the public after Ministers have had a reasonable time to digest their contents, seek further information from officials, and formulate their own response to the issues presented.
The State Services Commission Guidelines recognise this trend, but warn that it should not be taken for granted:
The briefing is confidential to the Minister. Recent practice has been for the BIM or initial briefing to be released publicly by the Minister. This should not be assumed. The normal provisions for material requested under the Official Information Act apply to any request for briefings made under that Act. Ministers, not agencies, should decide whether to publicly release all or part of any such briefings.
Again, that is what you would expect the SSC to say. After all, it is the Minister’s call as to whether information directed to them should be released. However they exercise that discretion according to the law, and that law is, or should be, the Official Information Act (OIA).
Here there is room for confusion to creep in. A Minister who releases a BIM by instructing officials to place a redacted version on the Departmental website is not releasing that under the (OIA). The fact that the release copy has a diagonal watermark saying “Released under the Official Information Act” does not make it so. Nor do the blank sections marked with “withheld under s.9(2)(f)(iv) of the Official Information Act”.
The BIM prepared for the incoming Minister of Finance in November 2011 was released yesterday. http://www.treasury.govt.nz/publications/briefings/2011
Various portions have been withheld to protect privacy (s.9(2)(a)), to maintain the constitutional convention protecting the confidentiality of advice between Ministers and officials (9(2)(f)(iv)), the free and frank expression of opinions (9(2)(g)(i)), commercial activities and negotiations (9(2)((i) and (j)).
The Treasury in fact has a very good record under the OIA, and its decisions to withhold information are very often upheld by the Ombudsman.
However were the 2011 BIM to be reviewed by the Ombudsman further information might well be released. For example, it is difficult to see what information might be properly withheld to protect privacy in what is essentially a high level briefing paper about economic policy. It is well established that officials don’t have an expectation of privacy in relation to the discharge of their official functions, so the fact that Joe Bloggs is the Manager of Strategic Policy and has prepared a helpful paper on an issue for a Minister would not normally be considered eligible for deletion on privacy grounds.
More interesting, and possibly a more technical legal point is the application of s.9(2)(f)(iv) to protect information in a class of document which has traditionally been released in an unexpurgated form. Section 9(2)(f)(iv) is one of the most troublesome sections in the Act, and has been widely criticised for its opacity. It is useful to look at its constituent parts:
- Subject to the public interest, information may be withheld:
- where necessary:
- to maintain the constitutional conventions
- for the time being
- which protect
- the confidentiality of advice tendered by Ministers of the Crown and officials
The major problem that will be faced by all Ministers redacting their BIMs is establishing the presence of a constitutional convention protecting that form of advice. A constitutional convention is present where adherence to it is a matter of course, and departure from it an aberration or at least a rarity. With BIMs being regularly released in full in the past, that seems a significant hurdle.
Another hurdle in establishing a “constitutional convention” is that many of the 2011 BIMs (including some of those linked below, such as to the Minister of Health, the Minister for the Environment and the Minister of Revenue) appear to have been released in full.
The Treasury BIM has deleted references to reform of the public sector under this section, with these blank spots inviting our speculation:
A challenge to the decision to withhold those portions might well see further information released after close questioning and analysis by the Ombudsman.
Some information from the Treasury BIM has been withheld with reference to commercial interests, and it is likely that a similar approach would be taken to those as when what is likely to be similar information was sought before the election <a href="http://jcelaw.posterous.com/asset-sales-ombudsmen-elections-and-official.
However one common theme of the releases which could be cast in a somewhat sneaky light, but is more likely an innocent lack of appreciation of the finer points of the law, is that these Government initiated releases are presented as releases under the OIA. They are not. The OIA comes into play when someone asks for the document, not when the Government of its own volition publishes it. What difference does it make? Well for one thing, if any agency or Minister refuses to release information which someone has asked for, they are obliged not only to cite their reasons for refusal, but to tell the requester about their right to seek a review by the Ombudsman http://www.legislation.govt.nz/act/public/1982/0156/latest/DLM65608.html#DLM6…. None of the websites containing BIMs from which information has been withheld below appear to do this. Also, in citing the OIA, officials are predetermining the decision they should be making afresh when the requests arrive, something frowned upon in administrative law.
The other difference between information released at the Government’s initiative, as opposed to that in response to a specific request, is that the Department or Minister in the latter case is immune from any legal consequences, such as for example, a complaint of breach of privacy. They can do much more when the information is sought under the OIA than when they release off their own bat http://www.legislation.govt.nz/act/public/1982/0156/latest/DLM65912.html#DLM6….
Anyone who is interested in seeing more of the BIMs than the Government has seen fit to release should simply write to the Minister concerned, and if they stick to their predetermined position about the deletions, ask the Ombudsman to investigate. Perhaps then we will have a clearer idea about the expectations next time around.
Here are some of the redacted BIMs released yesterday: