Revealed: The report withheld despite officials telling their Minister it should be public

Internal Affairs minister Tracey Martin. Photo / Mark Mitchell

Public servants scrambled to get a Minister's permission to release a "benign" report before the Office of the Ombudsman made a formal ruling that there were no grounds to keep it secret.

When they did eventually get the permission of Internal Affairs Minister Tracey Martin, the Department of Internal Affairs described its publication of a report it had refused to make public for almost two years as a "proactive release".

The State Services Commission says a "proactive release" included publishing documents "without any request from the public" to promote "openness and transparency", or making available to the public information "previously … released to an individual requester".

The report was a review into the status of the Chief Archivist, whose role is to lead Archives NZ while also acting as an guardian and regulator of public recordkeeping and management.

It was completed in July 2018 amid concerns from the archives and libraries sector that the influence and mana of the Chief Archivist's role had suffered in the relegation of Archives NZ from its own agency to being part of the Department of Internal Affairs.

AUT University's Dr Julienne Molineaux sought a copy of the report in September 2018 through the Official Information Act. When her request was refused, she complained to the Office of the Ombudsman.

Then the NZ Herald sought the report in April 2019, and when refused, also asked the Chief Ombudsman to investigate.

In both cases, the Chief Archivist review was refused on the grounds of legal privilege - it was written by a lawyer - and on the basis of confidentiality, as the information might affect decisions about to be made.

Documents released by Internal Affairs show Martin was told in February that the Chief Ombudsman was investigating and that officials believed there was no reason for the report to be kept from the public.

In an effort to remove any barrier to release, Internal Affairs had obtained a legal privilege waiver from the Attorney General David Parker, which - as it would turn out - was unnecessary.

Martin was also told the decision-making process the report triggered had ended, removing any grounds for withholding the document on the basis of the advice needing to be confidential.

"The department's current view is that the report should be released," DIA's policy director Rachel Groves told Martin.

Martin was told the "report is relatively benign in its conclusions", "would not have constitutional implications" and "previously recommended withholding grounds no longer apply".

However, she was warned "there is a risk that releasing the report could generate more questions from the (archives and libraries) sector".

Martin circled the "no" option, telling officials they were not cleared to make the report public.

Martin's reasoning for withholding the report is not explained. The Official Information Act states "information shall be made available unless there is good reason for withholding it".

Documents show Martin's refusal only postponed the inevitable as Chief Ombudsman Peter Boshier issued his "provisional opinion" on April 3, telling Internal Affairs it had no grounds for keeping the report secret.

His provisional opinion - provided ahead of a final ruling - found that the grounds on which Internal Affairs had relied on for the past 18 months didn't actually apply.

His view was that Internal Affairs "lacks a clear legal context relating to professional legal privilege" and there was no clear basis to support claims releasing the report would place at risk Minister's decision-making about the Chief Archivist.

The Chief Ombudsman's provisional opinion would become the final opinion subject to any contribution Internal Affairs might make and Boshier might accept.

Papers released through the OIA show officials considered how they might seek a few weeks deadline extension as they again approached the Minister for permission to release the report.

On April 16, Groves briefed Internal Affairs' deputy chief executive Marilyn Little and the department legal adviser Susan Arcus about Martin's refusal - against advice - to release the Chief Archivist report.

Groves explained there was no lawful reason to keep it secret yet "the minister did not agree with our recommendation". "We may need to draft a briefing," she added, and had someone standing by to do so.

One of the vast vaults of storage needed for Archives NZ's collection. Photo / Supplied

An appointment was made to brief Martin - again. The paper trail shows that the circle of officials dealing with the matter now expanded to include Anita Balakrishnan, Internal Affairs' director of ministerial advice, monitoring and operations.

The briefing would need to tell Ministers there was "no longer any discretion in this matter".

An email from Balakrishnan foreshadowed the briefing, with the senior bureaucrat saying: "I agree with the Ombudsman's position on this matter, and as far as I've been able to determine, we have been quite open in communicating this to the Minister."

She would again tell Martin "there are no sound grounds to continue withholding the report and they should be released". That afternoon, Balakrishnan was able to update colleagues that Martin was now prepared to see the report released but wanted an updated, formal, briefing.

It would be another month before the Chief Archivist report was released, during which officials discussed it being made public as a "proactive release". One bureaucrat noted that the Minister sometimes liked to announce "proactive releases" with a press release "but for a number of reasons, I strongly doubt she will do that with this one".

On April 28, the new briefing went to Martin. In it, Martin was told of the Chief Ombudsman's provisional opinion and that the plan was to make a "proactive release".

Chief Archivist Richard Foy. Photo / Supplied

If Martin agreed, officials said they would keep Culture and Heritage Minister Grant Robertson in the loop and organise a plan through which the report would be released.

Emails show Robertson had agreed by May 1 and officials then went to work lining up the release of the report with Budget announcements.

The OIA states that "undue delay in making official information available" after a request is, in effect, "a refusal to make that information available". A Law Commission view says: "We consider that the basic obligation upon agencies should remain to deal with requests as soon as reasonably practicable."

On May 11, Internal Affairs wrote to the Herald to say the Chief Archivist report would be released "following Budget announcements", "from May 15".

Documents show some minor panic among officials on May 12 when told by Martin's office there would be no announcement on May 15, which was Budget day.

However, they decided the letter to the Herald announcing the release contained enough fuzzy language to cover the report not going live until May 19.

A spokesman for Martin said: "The Minister did not block the release of information. She didn't agree to its proactive release."

An Internal Affairs spokesman said it was "always our intention" to release the report once Ministers had made final decisions on the National Archives and Library Institutions Review.

In May, the Herald asked the Office of the Ombudsman investigator handling our complaints how the report could be described as a "proactive release", given Internal Affairs had withheld it for 18 months and was releasing it shortly before being told it had to.

The investigator said the term "proactive" was able to be used because a provisional opinion had been provided to Internal Affairs and "the Chief Ombudsman has not yet formed a final opinion".

The report into the Chief Archivist's role found the perceived lack of mana and cut-through was more "perception than reality", despite Archives NZ's place as a "third tier" organisation in Internal Affairs.

It rejected making the Chief Archivist an Officer of Parliament and suggested a "formal 'dotted line' relationship" between the Chief Archivist and the Chief Executive as a "useful and visible enhancement of the existing informal channels".