Ministerial access and Official Information Act

Apart from the issues outlined above, two of the other most commonly raised issues related to access by Ministers to the shared workspace, and gaining an understanding of how the Official Information Act would be applied. In relation to Ministers, the issues were around privacy considerations for individuals, and protecting officials from undue pressure or influence if a Minister could follow a policy debate, and have access to who said what. It was however, assumed by Focus Group participants that the practices and conduct of officials and Ministers would not change significantly through the introduction of an electronic shared workspace, and that the provisions of the State Sector Act would ensure the continued protocol of free and frank advice. All of the Focus Groups raised questions in relation to official information and how a shared workspace environment might differ to current requirements. One Group suggested that a review of the Official Information Act (OIA) itself was needed because the world had moved on significantly from when it was drafted and developed for a paper-based world. A common question was the extent to which information would be accessible under the Act. For instance, will information in the discussion threads or 'chat rooms' be accessible under the Act? What implication does this have for free exchange of views as a preliminary to written work?

Focus group input

• Need to know who the audience is - it's important that things don't automatically go to a different audience without the sender's knowledge

• Processes will need to include reminders around compliance with the OIA

• Project manager should be able to seek confidential advice/input. At other times there should an expectation that everything is public

• Current OIA could severely restrict use of chat rooms/discussion threads

• Inadvertently attaching or saying something indiscreet that will be released under the OIA will inevitably burn someone

• If the Minister and his/her office are to be part of the electronic shared workspace, there is a need to explore what the issues would be surrounding this

• The policy process is currently very open and transparent - electronic shared workspace won't change that

• Issues around the OIA need to be carefully investigated from both legal and technical aspects.

The Project Team sought the input of SSC Legal Services in relation to some of the questions surrounding the OIA. We explored whether operating within an electronic shared workspace had particular issues associated with the application of the Act; whether the protocols governing the work of officials with Ministers or MPs would change; and whether a differentiation can be made between chat room input, and other inputs such as conversations and drafts of papers. While an electronic shared workspace has raised issues in relation to the OIA in that it was not written for a wholly electronic environment, it was nevertheless confirmed by Legal Services that we should assume that the basic tenets upon which the Act is based would equally apply. In fact some of the features of the electronic shared workspace such as a 'public' notice board of policy initiatives will be advantageous to anyone looking for official information. On the other hand, the Act cannot be used to make an electronic shared workspace any less safe than the environment in which officials work now. For example, officials conduct their business on behalf of Government in the full knowledge that information can be discoverable, but understand there are some constraints around the point at which certain information becomes publicly available. The other issue around safety is one relating to the privacy of individuals. While there are some protections around undue harassment or pressure of individuals, officials cannot seek anonymity through the OIA. Policy analysts have to take into account the OIA in what they do now, and this will not change. The Act is clear about both providing access to official information while at the same time recognising that the Government needs to be able to govern. An essential part of that governance is requesting, and receiving, full and frank advice from officials. Chat room discussions would be discoverable under the OIA in the same way brainstorms/meeting discussions are discoverable now. The Act does provide for some information to be withheld while the due process of decision-making is being undertaken in certain circumstances. However, once a decision is made, all documentation and other information may no longer be protected. The level of access the Minister was given would govern ministerial tracking or access to who said what within an electronic workspace. The behaviour of officials is the responsibility of their employing Chief Executive. The State Sector Act will continue to govern, as it does now, the relationship between a Minister and his, or her, department and the conventions in relation to providing advice. It is important that clarity is sought around the operation of the OIA in an electronic environment. We need to be clear as to whether there are any differences that need to be addressed when developing the protocols to accompany the introduction of a shared electronic workspace. The Project Team intends to explore these issues more fully in the next phase and will be seeking the input of the Ombudsman.