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 2020. 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 8.17 - 8.21), or officials holding the relevant statutory or delegated authority. Release of information may also be required under the Official Information Act 1982, the Privacy Act 2020, or other legislation.
8.5 Ministers and (in the case of material from a previous administration) public service agencies are responsible for their own Cabinet material. Any requests for access to Cabinet documents, including by an inquiry or judicial body, must be handled by the responsible Minister or agency. While the Cabinet Office holds Cabinet papers and minutes, it is not the appropriate agency to make decisions on their release under the Official Information Act 1982. Information about the release of Cabinet material from a previous administration can be found in paragraphs 8.136 - 8.151.
8.6 The government, under the Public Service Act 2020, 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. Agencies should consider how to use and manage personal information early in the policy development process, and they should seek advice from their legal or privacy advisers, the Government Chief Privacy Officer or the Office of the Privacy Commissioner. Information sharing can often be achieved in a way that is consistent with the Privacy Act 2020’s information privacy principles (see paragraph 8.73). Where potential inconsistencies with the information privacy principles are identified, the Privacy Act 2020 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
8.7 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 8.46 for information on the release of classified information under the Official Information Act 1982).
Improper release or use of information held by the government
Unauthorised release of information
8.8 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 agency concerned, perhaps in association with the Public Service Commission;
- an inquiry by the Secretary of the Cabinet;
- a non-statutory or statutory inquiry (see paragraphs 4.115 - 4.116);
- a Public Service Commission inquiry at the direction of the Prime Minister or Minister concerned, or initiated by the Public Service Commissioner;
- a police inquiry; or
- an inquiry by the Privacy Commissioner.
8.9 Information released by an official with relevant delegations and in good faith in response to a request under the Official Information Act 1982 is an authorised release. Under section 48 of the Official Information Act 1982, no civil or criminal proceedings can be taken against any person in respect of such a release.
8.10 Section 78A of the Crimes Act 1961 and section 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.
8.11 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 agencies should ensure that the agreement with a contractor or consultant includes a confidentiality clause.
8.12 If there is unauthorised access to, disclosure, or loss of personal information held by an agency, the agency concerned must comply with the privacy breach notification requirements in the Privacy Act 2020.
Exploitation of information for private gain
8.13 The corrupt use or disclosure by an official of official information acquired in their official capacity for private gain for themselves or any other person is an offence under section 105A of the Crimes Act 1961. The knowing use or disclosure of personal information that has been obtained as a result of an offence under section 105A is also an offence under section 105B of the Crimes Act 1961 (whether or not the person using or disclosing the information is an official).
Information about commercial entities
8.14 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 Public Service Commission can provide guidance on the management of officials' conflicts of interest.
8.15In 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, because 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.
8.16 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
8.17Official information may be released proactively. Information that may be suitable for proactive release includes Cabinet papers and minutes, policies and procedures, research, evidence, and other material that would help the public to contribute to government decision-making and administration, and material likely to become subject to Official Information Act 1982 requests.
8.18 Proactive release of material is not covered by the Official Information Act 1982, and therefore section 48, which protects agencies from civil or criminal sanctions when releasing official information in good faith, is not applicable.
8.19 All Cabinet and Cabinet committee papers and minutes must be proactively released and published online within 30 business days of final decisions being taken by Cabinet. This should occur unless there is good reason not to publish all or part of the material, or to delay the release beyond 30 business days. Ministers may also decide to release related key advice papers. Reasons should be given if a Cabinet paper or minute is not intended to be proactively released. Only Cabinet Appointments and Honours Committee (APH) papers and minutes are explicitly excluded from the proactive release policy, for reasons of privacy.
8.20 Where a Cabinet paper has been confirmed by Cabinet, with a stated intention by the Minister to proactively release, but has not been proactively released at the time of a change of administration, the new Minister holding the portfolio should be notified of the proposed release. There is no requirement to consult with the former Minister on the release of that information. Should the current Minister wish to change the proposed approach for proactive release, they may wish to consider whether Cabinet should be informed.
8.21 More detailed guidance on the proactive release of Cabinet material is set out in Cabinet Office circular CO (23) 4: Proactive Release of Cabinet Material: Updated Requirements and the CabGuide.