Section 82 of the Financial Management Act 2006 requires Ministers to give Parliament and the Auditor General written notice where they decide not to provide information requested by Parliament. Section 24 of the Auditor General Act 2006 requires the Auditor General to form an opinion on the reasonableness and appropriateness of the Minister’s decision and report this opinion to Parliament.

Sections 81 and 82 of the Financial Management Act 2006 in addition to the Freedom of Information Act 1992 formalise a general principle in the public sector and government, that information should be disclosed unless there is good reason to withhold it. Agency advice to a Minister to withhold information from Parliament is an exception to this general principle. Accordingly, such advice should be carefully considered and include documented assessment of factors such as public interest of disclosure and obligations of confidence.

This report details my opinions on individual notifications received from three Ministers on their decision not to provide information to Parliament. In only one of the instances was I able to form an opinion that the Minister’s decision was reasonable and appropriate. In all three instances the agencies’ advice to their Minister was not supported by thorough, documented assessment of relevant issues to support the recommendation not to provide requested information. This is disappointing given previous reports where I have highlighted the key principles and criteria that agencies should consider when providing such advice.

One of the instances above related to legal professional privilege preventing release of information to Parliament. A matter for noting is that Ministers in responding to requests for information do not have authority to expressly waive privilege in legal advice provided to executive government. Only the Attorney General or his delegate may make a decision to waive privilege.