CO (26) 6: Proactive Release of Advice that Relates to Decisions Made in a Pandemic with Direct Human Rights Implications

1 This Circular sets out the requirements and procedures for the proactive release of advice that relates to decisions made during a pandemic that have direct human rights implications.

2 Where relevant, this Circular should be read in conjunction with CO (23) 04, which sets out the requirements for the proactive release of Cabinet material and to which this Circular refers when applying certain expectations.

3 Requirements relating to the proactive release of Cabinet material, as set out in CO (23) 04, continue to apply.

4 The expectations set out in this Circular apply to ministers, ministerial office staff and public service agencies, as defined in section 10 (a) of the Public Service Act 2020.

5 To better support transparency and access to information during a pandemic, advice that relates to decisions made during such events with direct human rights implications must be proactively released within five business days of the decision being taken. This applies to decisions made in response to or as a consequence of a pandemic, not other decisions of government with human rights implications that happen to occur during a pandemic.

6 For the purposes of this Circular, human rights include rights protected in domestic legislation, including in the New Zealand Bill of Rights Act 1990, Human Rights Act 1993 and the Privacy Act 2020, and rights protected in relevant international human rights instruments, including the core human rights treaties New Zealand has ratified.

7 A decision with a direct human rights implication means a decision that limits or restricts human rights as an immediate or proximate consequence of the decision.

8 This Circular applies only to decisions where the limitation or restriction on human rights has application at a population level. This means the restriction or limitation applies to a class or subpopulation of unspecified people (like border workers or people living in a specific region), rather than to identified individuals or specified properties.

9 Only final decisions trigger the requirement for proactive release.

10 The scope of material to be considered for proactive release includes:

11 Proactive release is different from release under the Official Information Act 1982 (OIA) in that material is published in the interests of broader transparency, not in response to a request under the OIA. A due diligence process must be undertaken by the minister’s office or agency before the advice is proactively released. It is the publisher’s responsibility to ensure that the required due diligence steps have been undertaken before material is published.

12 The New Zealand Royal Commission of Inquiry into COVID-19 Lessons Learned report included recommendations relating to the transparency of decisions made during a pandemic. The report emphasised that where rights are to be restricted or limited there should be a high degree of transparency in relation to advice received and the reasons for imposing limitations on rights.

13 In response, Cabinet agreed to require the proactive release of advice that relates to decisions made in a pandemic with direct human rights implications within five business days of the decision being taken [CBC-26-MIN-0030]. 

14 The requirements apply when:

15 Advice that relates to decisions with direct human rights implications must be proactively released, unless there is a good reason not to publish all or part of the advice (see sections below regarding material to be considered for release, what material may be withheld or delayed for release, and due diligence).

16 For the purposes of this circular, human rights include:

17 The Human Rights team at the Ministry of Justice can be contacted if further guidance about human rights is needed.

18 For the purpose of this circular, a decision with a direct human rights implication is one that limits or restricts human rights as an immediate or proximate consequence of the decision. For example, in the context of face-mask requirements, a Cabinet decision to require the wearing of face masks would trigger the proactive release requirement, whereas a decision to simply promote or encourage the use of face masks would not. 

19 Only decisions that apply at a population level, to a class or subpopulation of unspecified individuals, are caught by the requirements of this Circular, not decisions that relate to specific individuals or specific properties.[1]

20 Decisions in scope are those made in response to or as a consequence of a pandemic. This includes decisions made to prevent or limit the spread of the pandemic infection (for example, population-level requirements to isolate or quarantine) as well as decisions taken as a consequence of the pandemic (for example, imposing fuel restrictions due to pandemic-related supply chain disruptions). It does not include decisions that are unrelated to pandemic response that happen to be made during a pandemic (for example, changes to criminal law).

21 Decisions include collective decisions of Cabinet, decisions made by an individual minister, and decisions made by chief executives or statutory officers under specific statutory authority (such as under the Health Act 1956).

22 Only final decisions trigger the proactive release requirements. A minister forming a view to seek Cabinet approval of a specific proposal is not a decision for the purpose of this Circular.  However, the subsequent decision of Cabinet would be in scope if this decision limited or restricted human rights as an immediate or proximate consequence of the decision.

23 All advice that relates to the decision must be considered for proactive release. Advice includes relevant briefing papers, reports, risk assessments, regulatory analysis summaries, or other material that informs, supports or recommends a decision. Where Cabinet is the decision maker, all related advice that was provided to the portfolio minister who submitted the Cabinet paper is in scope.

24 Technical or expert advice related to the decision by a third party that was commissioned and received by ministers, minister’s offices or public service agencies in the course of the advisory or decision-making process should also be considered for proactive release. Ministers and agencies should be proactive in advising third parties of this point when commissioning such advice.

25 Only the final version of advice should be proactively released. The final version of advice is:

26 Where it is recommended that information is redacted, the reasons should be clearly stated. More information about this is discussed below.

27 Each release must be accompanied by a coversheet that contains, at a minimum, the information shown in the example coversheet in the appendix to this Circular. The exact layout of the coversheet will depend on each agency’s website and the material being released. As a protection against misuse of information, copyright statements should be included with the content of each paper published.

28 Where possible, all related advice and Cabinet materials should be proactively released together as a package so that readers have context for the decisions. Requirements relating to the release of Cabinet materials are set out in CO (23) 04.

29 Advice must be released proactively unless there is good reason not to publish all or part of the material, or to delay the release beyond five business days. A good reason includes those reasons listed at CO (23) 04 paragraph 25 and the due diligence considerations listed at CO (23) 04 paragraph 34, including considerations relating to legal professional privilege.

30 The following parties are responsible for authorising the proactive release of advice under this Circular:

31 A publisher is the person or persons in an agency or a minister’s office who is responsible for administering the proactive release and publication of the advice online. It is the publisher’s responsibility to confirm that the due diligence and authorisation steps have been undertaken before advice is proactively released and published online. Information about this process is in the sections below.

32 Advice must be proactively released and published online within five business days of final decisions being taken, unless there is good reason not to publish all or part of the material, or to delay the release. Authorising parties can choose to release advice earlier than the five business days.

33 The counting of the five business days in which advice must be proactively released starts from the day after the decision is taken. A business day has the same meaning as at CO (23) 04 paragraphs 16.1 - 16.2.

34 Agencies should be proactive in considering the requirements of this Circular when preparing advice. Where possible, papers seeking or informing decisions should signal the application of this Circular where it is likely to be relevant and seek the decision maker's in-principle agreement to the proposed approach to proactive release, subject to a final due diligence assessment following the decision and before publication.

35 Papers should set out the reasons that officials consider any material should be withheld from release, released only in part, or released after the standard publication timeframe.

36 In preparing advice, agencies should apply the considerations set out in paragraphs 31–33 of CO (23) 04 as appropriate, adapted as required to reflect the particular requirements and information covered by this Circular.

37 All material proposed for release must undergo a thorough review process. Because proactive release material is not released under the OIA, the Crown is not protected from any civil or criminal liability that may occur as a result of the release of information (see s48 of the OIA).

38 The person or agency reviewing material should refer to both the good reasons not to publish all or part of the material, or to delay the release of material, set out at CO (23) 04 paragraph 25 and the due diligence requirements set out at CO (23) 04 paragraph 34 before approval is given to proactively release advice.

39 The same considerations and requirements set out at CO (23) 04 paragraphs 36 – 42 apply as appropriate, adapted as required to reflect the particular requirements and information covered by this Circular.  Where a requirement in CO (23) 04 is only relevant to Cabinet material, it does not apply.

40 The considerations set out in the following paragraphs of CO (23) 04 apply, adapted where required to reflect this relates to advice not Cabinet material:

41 The Ombudsman’s OIA guide (including ‘Free and frank opinions’, ‘Good practices for proactive release of official information’, and ‘The OIA and the public policy making process’) should be used by Minister’s offices, departments and agencies.

42 Agencies should also refer to the Public Service Commission’s ‘Agency guidance on the proactive release of official information’.

43 The Public Service Commission is available to provide further advice on the implementation of this Circular.