Free and Frank Advice: The Official Information Act 1982 and a first statutory appearance

08/11/2025

I look at how the Official Information Act 1982 first brought free and frank advice into statute as an interest protected from disclosure, how widely that protection reaches, and what it left undefined.

This is the fourth of twenty posts drawn from my doctoral thesis on free and frank advice in Aotearoa. In this post I go back to the first time free and frank advice appeared in our statute book, in the Official Information Act 1982, and read the clause more closely than it is usually read.

Free and frank advice first entered statute in Aotearoa through the law of official information, and it entered as something to be shielded, an interest the Official Information Act 1982 protects from disclosure, at a time when nobody had yet written down that officials owed it. In this post I do three things: first, I set out how the Act protects free and frank expression and the conditions it attaches to that protection; second, I look at how widely the protection reaches, and at the Danks Committee reasoning that sits behind it; and third, I consider what that first appearance left open, and why I think it sits uneasily with the account of free and frank advice most of us carry around.

A protected interest

The Official Information Act 1982 does not require anyone to advise freely and frankly, and in my reading it assumes that they do and then sets out the circumstances in which the resulting exchange may be kept from disclosure. Section 9(2)(g)(i) provides that good reason exists to withhold official information where withholding is necessary to “maintain the effective conduct of public affairs through … the free and frank expression of opinions by or between or to Ministers of the Crown … in the course of their duty” (Official Information Act 1982, s. 9(2)(g)(i)). Throughout, the section leaves unspecified what makes an expression of opinion free and frank, and I think that silence, in the very first statutory use of the phrase, set the pattern for everything that followed.

The protection is also conditional, which is easy to forget when the clause is used as shorthand for a general right to keep advice private. The convention is shielded because, and to the extent that, it advances the effective conduct of public affairs, and the good reason it establishes remains subject to the public-interest override in section 9(1), under which information must be released where the public interest in disclosure outweighs the reason to withhold. In my view the Act treats free and frank expression as instrumental, valuable for what it does for the conduct of government, and leaves the question of what it is to those who must apply the clause.

The scheme into which this protection was set was built to hold openness and effective government together, and it begins from a principle of availability, under which official information is to be made available unless there is good reason for withholding it (Official Information Act 1982, s. 5). The Danks Committee treated that openness as a condition of accountable government, while accepting that some protected space was needed for candid deliberation (Committee on Official Information, 1980). Section 9(2)(g)(i) sits at that balance point, and I read it as protecting free and frank advice, in the Act’s own logic, as one of the conditions through which good government operates.

By or between or to Ministers

The breadth of the clause repays closer attention than it usually receives, because it carries a point that the later, official-centred reading of the convention tends to obscure. The opinions it protects are those expressed by or between or to Ministers of the Crown, a phrase that reaches past the channel from official to minister to the opinions of ministers themselves and to the views ministers exchange with one another, as much as to the views put to them. It reaches further still, to members of an organisation and to officers and employees of public service agencies and other public bodies in the course of their duty, so that, on the face of the statute, the protection runs across the political and administrative executive and into the wider state. In my reading that breadth makes free and frank expression a system-wide matter, well beyond the core relationship between a minister and a department.

The Act surrounds that clause with companion protections under a separate head, directed at maintaining the constitutional conventions, which protect collective and individual ministerial responsibility and the confidentiality of advice tendered by ministers and officials (Official Information Act 1982, s. 9(2)(f)). Where section 9(2)(g)(i) protects the candour of the expression, so that frank opinion can flow, section 9(2)(f) protects the confidentiality of the advice and the conventions of collective deliberation within which that candour is given. Taken together, the clauses can be read as protecting a single field of candid governmental deliberation, in which ministers advise and argue with one another, officials advise ministers, and candour is protected across the wider public sector as well. The Haldane convention locates candour in an indivisible relationship between ministers and officials (Richards & Smith, 2016), and I think the Act comes close to it, with the difference that the Act secures its protected space through rules about disclosure and draws that space more widely than the partnership between minister and official.

The Danks Committee can be read as designing that protection deliberately, and its reasoning puts ministerial exchange first among the relationships to be shielded. Setting out the interests of effective government, the Committee reasoned that the government of the day needs to be able to take advice and deliberate on it in private, without fear of premature disclosure, and its operative conclusion named the relationships in a revealing order: “there should be continuing protection as needs be for the free and frank exchange of views between Ministers and their colleagues, between Ministers and officials, or between other officers of the Government in the course of their duty” (Committee on Official Information, 1980, para. 50). The Committee added that much of the business of the Cabinet system would be safeguarded by the same criterion. Ministerial exchange comes first in that list, before the channel from official to minister, and I read that order as locating the protection at the heart of collective executive deliberation.

What the first appearance left open

The statutory origin of the convention sits uneasily with a familiar account of it, which I think of as the hero-myth, in which free and frank advice is essentially the courage of the official who tells the minister an unwelcome thing. What the 1982 Act protected was the capacity of the executive to deliberate candidly in private, and on the face of both the statute and the Danks reasoning that capacity belongs as much to ministers exchanging free and frank views with one another as to officials advising ministers. In my view free and frank advice, read from its first appearance, extends beyond a duty officials owe upward, and is better described as a quality of candour that the whole executive relies on to function, and one that ministers extend to each other.

The protection also has an edge, because the candour the Act protects runs within the executive and the wider public sector, among ministers, officials and the members and employees of public organisations, and it stops at the private sector. That limit is easy to miss while the state delivers its own services, and it becomes consequential once delivery is contracted outward, and I think the 1982 drafting assumed a state that did its own work, an assumption that matters more each time delivery moves outside the public sector.

Because the provision protects free and frank expression while leaving it undefined, the interpretive burden falls on those who apply the Act. Agencies, ministers and the Ombudsman must decide, case by case, whether release would harm the public interest, and in early Ombudsman practice and guidance that inquiry turned on whether release would be likely to inhibit future candour, while the substance of the advice itself, and whether it carried some identifiable quality of candour, stayed to one side (State Services Commission, 1995; White, 2007a). In my reading the test that developed asked about the consequences of disclosure for future advice, and never needed to ask what made the advice in front of the decision-maker free and frank in the first place.

That test of inhibition has a life in practice, and interview research published in 2007 found officials with little confidence that sensitive material could be withheld under the Act, and committing less of it to paper as a result. The strain cut both ways, because knowing that advice might be read outside the department sharpened what was written, while the same knowledge drove a retreat into oral advice and a thinning of the written record (White, 2007a). I take from this that the chilling of advice does not require a disclosure to occur, since the possibility of one is enough to change what officials are willing to write down.

At its first statutory appearance, then, free and frank advice entered legislation through protection from disclosure, and what it protected was collective deliberation across the executive as a whole. That first treatment gave legal effect to an assumption that the value of free and frank expression was already understood, and in my view it is the first instance of a pattern that runs through every statute since, in which Parliament gives the convention standing and leaves its meaning to the people who have to act on it.

In the next post I turn to the State Sector Act 1988, which moved the tendering of advice into the machinery of contractual public management and asked, in effect, whether candour could be contracted for.

References

Committee on Official Information. (1980). Towards open government [Danks Committee report]. New Zealand Government.

Official Information Act 1982 (NZ).

Richards, D., & Smith, M. J. (2016). The Westminster model and the “indivisibility of the political and administrative elite”: A convenient myth whose time is up? Governance, 29(4), 499–516.

State Services Commission. (1995). Public Service principles, conventions and practice [Guidance series].

White, N. (2007a). Free and frank: Making the New Zealand Official Information Act 1982 work better. Institute of Policy Studies.