1This circular sets out the principles that guide Ministers’ access to the records of the previous administration. It also provides guidance for officials handling requests for official information received before 26 October 2017, when the new administration was appointed.
Access by incumbent Ministers to records of a previous administration
2Recognising that government is a continuing process and to ensure that decisions may be made in the light of precedent, by convention incumbent Ministers are entitled to access the Cabinet records of a previous administration. Ministers are provided with access on the basis that the confidentiality of the papers is respected (see paragraphs 8.128 and 8.129 of the Cabinet Manual).
3For documents lodged outside of the CabNet system, the CAB 100 consultation forms should be removed from any Cabinet records provided to the Minister, as they contain information that is confidential to the previous administration.
4Departmental papers are not covered by the convention on access (see paragraph 8.127 of the Cabinet Manual). Incumbent Ministers do not, therefore, have an automatic right to copies of departmental papers or briefings prepared for a previous Minister.
5A Minister may, however, need to gain an understanding of the advice given by the department to his or her predecessor, in order to understand fully the nature of an issue. When making a request for information of this kind, a Minister should be cognisant that such information can be politically sensitive.
6Accordingly, officials who receive requests from Ministers for departmental papers dating from a previous administration should advise their chief executive. The chief executive will, in consultation with the Minister, determine how to meet the Minister’s need for information without compromising the political neutrality of the department, or its ability to maintain the confidence of both present and future Ministers. Options may include:
6.1supplying the material that has been requested; or
6.2 providing a briefing summarising the advice given to a previous Minister and the decisions taken.
7Each request by a Minister for information held by the department should be individually assessed by the chief executive in relation to the Minister’s needs, the sensitivity of the information, the currency of the information and the issue to which it relates, and other associated factors.
8As with Cabinet records, information held by a department is supplied to the Minister on the basis that the confidentiality of the information is respected.
9Ministers should talk to the Secretary of the Cabinet if they have any queries in relation to access to departmental information provided to former Ministers. Departmental officials should contact the State Services Commissioner if they have any queries in relation to this matter.
Release of Cabinet records of a previous administration
Consultation with Leader of the Opposition
10A Minister or department that proposes to release the Cabinet records of a previous administration, in response to a request under the OIA or for any other reason, should advise the Cabinet Office as soon as possible. The Cabinet Office, on behalf of the Prime Minister, will consult the Leader of the Opposition about the proposed release (see paragraphs 8.133 – 8.134 in the Cabinet Manual).
11If the Leader of the Opposition has any concerns about the proposed release, in terms of the OIA or any relevant laws or rules, the Cabinet Office will pass them on to the Minister or department to consider when making the decision on release.
12Requests from members of the public or members of Parliament, including former Ministers, for official information that is not covered by the convention (for example, departmental briefing papers) should be handled in accordance with the OIA in the usual way.
Release of Briefings for Incoming Ministers
13Departments and agencies are reminded that while briefings for incoming Ministers are subject to the OIA, there is no presumption that they will be released. Whether a briefing is released publicly is a matter for the Minister, not the department or agency, to decide (see paragraph 3.19 of the Cabinet Manual).
14Departments should make decisions on any requests for drafts of the briefings to incoming Ministers. Ministers should be provided with a copy of any information that is released.
Current requests for official information and complaints to the Ombudsman
Unprocessed requests for official information
15The Office of the Ombudsmen has agreed that unprocessed requests for official information received before the new administration was appointed on 26 October 2017 may be handled in the following way:
15.1Requests which have not yet been processed should generally be treated as continuing.
15.2A request for information that is personal to the previous Minister (such as recollections or personal records), however, cannot be treated as continuing. In such a case, the requester should be asked to withdraw the request or to submit a fresh request to the new Minister.
15.3 A request for information to which the incumbent Minister may not have access, as outlined in paragraphs 4-9 above, should be handled by the department. The department should advise the Minister if it plans to release any such information, but should not provide the Minister with copies of any withheld information of this nature.
16The Office of the Ombudsmen has advised that in the case of a decision under the OIA by a former Minister that was under review by the Ombudsmen as at 26 October 2017, the Ombudsmen will consider the future of the review on a case by case basis. The general approach, however, will be similar to that recommended for current requests for official information in paragraph 15 above.
17In each case that the Ombudsmen treats as continuing, the new Minister will be invited to respond to the Ombudsmen’s investigation, either by confirming the original withholding decision or by responding to a provisional view on the matter, as seems appropriate to the Ombudsmen.
18If the requested information is personal to the previous Minister, the Ombudsmen will advise the requester that the complaint is closed, and that the requester may send a fresh request to the new Minister. Such a request would be handled in the usual way by the Minister and, if necessary, by the Ombudsmen on review.
Distribution of circular and further guidance
19The State Services Commissioner will provide copies of this circular to agencies in the State sector, including non-Public Service departments, statutory Crown entities, Crown entity companies, organisations listed in Schedule 4 and companies listed in Schedule 4A of the Public Finance Act 1989, the Reserve Bank of New Zealand, tertiary education institutions, and State Owned Enterprises.
20Public Service chief executives should forward copies of this circular to the heads of other agencies within their Ministers’ portfolios that do not form part of the State sector.
21Further guidance on the application of the convention on access to Cabinet records of a previous administration can be found in Chapter 8 of the Cabinet Manual.
22The Cabinet Office will be issuing further guidance about the resumption of Cabinet business shortly.
Secretary of the Cabinet
Rachel Hayward, Deputy Secretary of the Cabinet (Constitutional and Honours)
Ph: 817 9778
Anna Fleming, Legal and Constitutional Adviser
Ph: 817 9741