8.2 The government holds a large quantity of information of all kinds. The law governing the creation, collection, storage, and use of this information is set out mainly in the Public Records Act 2005 and the Privacy Act 1993. These Acts, together with the Official Information Act 1982, also govern the availability of this information and promote accountable government through transparency and reliable recordkeeping. They help to ensure that information generated or procured by the government is used for lawful purposes.
8.3 All information held by the government should be treated with care and protected from unauthorised or unlawful release.
8.4 Release may be authorised by the Cabinet, a Minister (see paragraphs 8.14 – 8.19), or officials holding the relevant statutory or delegated authority. Release of information may also be required under the Official Information Act, the Privacy Act, or other legislation. Information about the release of Cabinet material from a previous administration can be found in paragraphs 8.124 – 8.134.
8.5 The government, under the State Sector Act 1988, is expected to deliver public services collaboratively. This will often require personal information that has been collected by one agency to be shared with another. Departments should consider how to use and manage personal information early in the policy development process, and they are encouraged to seek advice from the Office of the Privacy Commissioner or discuss approaches with the Government Chief Privacy Officer. Information sharing can often be achieved in a way that is consistent with the Privacy Act's information privacy principles (see paragraph 8.67). Where potential inconsistencies with the information privacy principles are identified, the Privacy Act and other legislative regimes contain tools that can enable the information sharing. In all cases, appropriate safeguards must be built into sharing arrangements.
Security classification of government documents
8.6 Government documents may be given a security classification. Classified documents must be handled according to the Protective Security Requirements . Guidance on the application of security classifications to Cabinet material is set out in the CabGuide (see paragraph 8.43 for information on the release of classified information under the Official Information Act).
Improper release or use of information held by the government
Unauthorised release of information
8.7 If information held by the government is released without authority, a range of responses may be considered, depending on the circumstances. They include:
- an internal inquiry by the chief executive of the department concerned, perhaps in association with the State Services Commission;
- an inquiry by the Secretary of the Cabinet;
- a non-statutory or statutory inquiry (see paragraphs 4.111 – 4.112);
- a State Services Commission inquiry at the direction of the Prime Minister or Minister concerned, or initiated by the State Services Commissioner;
- a police inquiry; or
- an inquiry by the Privacy Commissioner.
8.8 Sections 78A of the Crimes Act 1961 and 20A of the Summary Offences Act 1981 create an offence, in certain circumstances relating to the security and defence of New Zealand, of improperly disclosing, copying, or retaining official information.
Exploitation of information for private gain
8.9 The use by an official of information acquired in his or her official capacity for private gain or benefit of others, even if not involving the disclosure of information, is an offence under section 105A of the Crimes Act 1961. The use or disclosure of personal information that has been obtained as a result of an offence under section 105A is also an offence (whether or not the person using or disclosing the information is an official).
8.10 A government contractor or other person outside the public service entrusted with official information in confidence should not use or communicate that information other than for the purpose for which it was given. Where appropriate, Ministers and departments should ensure that the agreement with a contractor or consultant includes a confidentiality clause.
Information about commercial entities
8.11 Ministers and officials have access to a wide range of information about commercial entities that is not generally available to the public. They must ensure that they do not use this information in any way that affects their personal interests or the personal interests of their family, whānau, or close associates. Chapter 2 contains guidance for Ministers and former Ministers on identifying and managing conflicts of interest, including those arising from access to information. The State Services Commission can provide guidance on the management of officials' conflicts of interest.
8.12 In particular, Ministers and officials may receive or create information about companies that are listed on the stock exchange. Such information should be treated with care, as breaches of the insider trading and market manipulation regimes in the Financial Markets Conduct Act 2013 can result in significant fines or imprisonment. When dealing with information relating to companies that are listed on securities exchanges, Ministers and officials should therefore:
- take precautions to ensure that the information is handled appropriately;
- consider how and when to release information so as to minimise potential impacts on markets;
- take care when making statements that could inadvertently and inappropriately influence third parties; and
- avoid misleading the market.
8.13 In addition, Ministers and officials who hold information about a listed company that is not generally available to the market must not trade in the securities of that company. This prohibition includes trading through trusts or other vehicles if the Minister or official is aware that the trust or vehicle is undertaking the trading. More detailed guidance for Ministers and officials on the insider trading and market manipulation regimes is set out in Cabinet Office circular CO (12) 7 Guidelines for Dealing with Inside Information about Public Issuers.
Proactive release of information, including Cabinet material
8.14 Official information may be released proactively. Information that may be suitable for proactive release includes policies and procedures, research, evidence, and other material that would help the public to contribute to government decision-making and administration, and material that is likely to become subject to Official Information Act requests.
8.15 Proactive release of material is not covered by the Official Information Act, and therefore section 48, which protects agencies from civil or criminal sanctions when releasing official information in good faith, is not applicable.
8.16 Agencies should undertake due diligence processes to consider any potential liability, civil or criminal, that might result from the proactive release of official information or as a consequence of publication (for example, defamation or breach of contract) before deciding to publish the information.
8.17 It is generally expected that Cabinet material (Cabinet and Cabinet committee papers and minutes) on significant policy decisions will be released proactively once decisions have been taken, most often by publication online. Ministers have authority to approve the proactive release of Cabinet material within their portfolios. A Minister may also decide that it is appropriate for Cabinet material to be released proactively and published online following a request for information under the Official Information Act (see paragraphs 8.39 – 8.42 for guidance on requests for Cabinet material under the Official Information Act).
8.18 The following matters should be considered before Ministers give approval to proactively release and publish Cabinet material online:
- the application of the principles in the Official Information Act, the Privacy Act, and the Protective Security Requirements (see paragraph 8.6) to the information;
- whether the document contains any information that would have been withheld if the information had been requested under the Official Information Act;
- whether the document contains any information that must be withheld under the terms of any other legislation; and
- whether, in the circumstances, publication on the web is the best means of public release.
8.19 More detailed guidance on the process for publishing Cabinet material online is set out in the CabGuide and in Cabinet Office notices issued from time to time.