Introduction
37 In this section of our report we consider in general terms the standards of behaviour which the Government requires of the Public Service, including the standards relating to the protection and disclosure of official information. These apply formally to staff of the Ministry of Defence but not to members of the Defence Force, although it is plain to us that Ministers expect from the Force standards of conduct similar to those for public servants. We note that in respect of the Civil Staff employed in the Defence Force the Chief of Defence Force has power to issue a code of conduct covering "the minimum standards of integrity and conduct" applicable to them: Defence Act 1990, s 60. We have examined the Civil Staff Code of Conduct issued under this provision in 1997 and comment on it later.
Standards of general behaviour in the Public Service
38 The standards of behaviour which the Government expects of the Public Service are well established. They are set out in Chapter 2 of the Cabinet Manual and the New Zealand Public Service Code of Conduct published by the State Services Commissioner under s 57 of the State Sector Act. A copy of the relevant parts of the Code is in Appendix 6. As both the Cabinet Manual and the Code of Conduct emphasise, the standards are based on the convention of "political neutrality". In Palmer and Palmer, Bridled Power New Zealand Government under MMP, 1997, 85, it is stated -
"The key element running through these obligations [in the Code of Conduct] is that the New Zealand public service is politically neutral - loyal to whatever government is in power at any time."
The purpose of this convention is to ensure that the Public Service gives free and frank advice to the Government of the day while maintaining the ability to give similar advice to future Governments. The Code of Conduct puts it this way -
"Public servants are required to serve the Government of the day. They must act to ensure not only that their department maintains the confidence of its Ministers, but also to ensure that it is able to establish the same professional and impartial relationship with future Ministers. This convention of political neutrality is designed to ensure the Public Service can provide strong support for the good government of New Zealand over the long term."
39 For present purposes the relevant standards may be summarised as follows -
39.1 Public servants are obliged to serve the aims and objectives of the Minister. In this respect they owe a duty of loyalty to their Minister and the Government generally. 5 They are responsible for providing assistance to their Minister in the development and implementation of policy.
39.2 The advice which public servants give must be honest, impartial and comprehensive. Ministers should be in a position to take decisions based on all the facts and an appreciation of all the options. Public servants should fulfil their lawful obligations with professionalism and integrity.
39.3 Final decisions on policy are the prerogative of Ministers and not public servants. The latter may not withhold relevant information from Ministers or seek to obstruct or delay a decision or attempt to undermine or improperly influence Government policy (for example, by the unauthorised release of official information).
39.4 Once policy decisions have been made by the Government public servants are responsible for implementing those policies within the law and to the best of their abilities.
39.5 Public servants who in conscience oppose policies or find themselves unable to implement a policy decision are required to discuss the circumstances with their manager or chief executive. They are not entitled to do anything to circumvent or undermine the Government's policies.
39.6 Public servants should not normally communicate with Opposition Members of Parliament about matters relating to their official duties without prior Ministerial approval. Chapter 2 of the Cabinet Manual makes it clear that consultation and negotiation between the Government and other political parties is the responsibility of Ministers.
39.7 Public servants must take considerable care when communicating with the news media. While they have the same rights of free speech in relation to their private affairs as members of the public, they should not discuss matters relating to their official duties if to do so would -
- reveal advice given to a Minister;
- use or reveal any information gained in the course of official duties where this was not already known by, or readily available to, the general public;
- criticise, or offer alternatives to, a proposed or actual Ministerial policy or departmental programme;
- purport to express or imply a departmental view, rather than clearly expressing a personal view only;
- give openly partisan support to, or criticism of, a political party;
- constitute a personal attack on a Minister, departmental colleague or other public servants; or
- amount to criticism sufficiently strong and/or persistent so as to call into question the public servant's ability to impartially implement, administer, or advise upon a Government policy.
39.8 Only those public servants authorised to do so should make public statements to the media. In respect of public comment, Chapter 2 of the Cabinet Manual states -
"Where press statements or other public comment are concerned, there should be a clear understanding as to which issues are to be handled by the Minister and which by the department. Official comment on behalf of a department should be made only by those employees authorised to do so."
40 The standards of behaviour of public servants in respect of the handling of official information are affected by the principles and procedures relating to the authorised release of information contained in the Official Information Act 1982, other relevant legislation, and specific departmental rules. We refer to the relevant legislation shortly. But at this point we highlight the general obligation on public servants to protect official information from unauthorised disclosure. As the Code of Conduct states (p 16) -
"It is unacceptable for public servants to make unauthorised use or disclosure of information to which they have official access. Whatever their motives, such employees betray the trust put in them, and undermine the relationship that should exist between Ministers and the Public Service. Depending on the circumstances of the case, the unauthorised disclosure of information may lead to disciplinary action, including dismissal."
41 Public servants who are concerned about suspected departmental wrong-doing may report their concerns through their department's normal channels or by following the procedures prescribed by the Protected Disclosures Act 2000 (the "whistle blowing" legislation). The existence of the procedures and protections under this legislation, which provide a legitimate avenue of non-public disclosure when justified by concerns of serious wrong-doing, also serves to reinforce the obligation on public servants to avoid the unauthorised disclosure of official information.
5 K J Scott, The New Zealand Constitution, 1962, p 140.
The standards governing the handling of official information
42 Our terms of reference require us to assess the standards of behaviour in the Defence Force in relation to the handling of "official information". The expression "official information" is generally understood to encompass all information, whether in documentary or electronic or other form, held by a Government department or a Minister of the Crown in his or her official capacity. The definition of the expression in the Official Information Act 1982 makes it clear that in this context a Government department is a department as defined in Part I of the First Schedule of the Ombudsman Act 1975 which expressly includes the Ministry of Defence and the New Zealand Defence Force. A similar definition of the expression appears in s 78A(2) of the Crimes Act 1961 and that definition is incorporated in s 25 of the Armed Forces Discipline Act 1971 which proscribes the unauthorised disclosure of official information in certain circumstances. We return to these provisions later in our report as they have a special significance in respect of information held by the Ministry of Defence and the New Zealand Defence Force.
43 The object of the Official Information Act, as its long title states, is -
"to make official information more freely available, to provide for proper access by each person to official information relating to that person, to protect official information to the extent consistent with the public interest and the preservation of personal privacy, to establish procedures for the achievement of those purposes, and to repeal the Official Secrets Act 1951."
44 This object is implemented by provisions which make it plain that the principal purposes of the legislation are -
44.1 To increase progressively the availability of official information to the people of New Zealand;
44.2 To provide for proper access by each person to official information relating to that person;
44.3 To protect official information to the extent consistent with the public interest and the preservation of personal privacy (s 4).
45 The purposes are reinforced by the principle of availability in s 5 of the Act which requires all questions of availability to be determined in accordance with these purposes and the principle that -
"the information shall be made available unless there is good reason for withholding it."
But this approach does not apply where the Act "otherwise expressly requires". This express exception to the application of the principle of availability is particularly significant in the context of our review which is concerned with all official information held by the Ministry of Defence and the New Zealand Defence Force.
46 The Official Information Act spells out plainly the circumstances in which there will be conclusive reasons for withholding official information. Under s 6 of the Act -
"Good reason for withholding official information exists, for the purpose of section 5 of this Act, if the making available of that information would be likely -
- (i) The government of any other country or any agency of such a government; or
(ii) Any international organisation; or
- (a) To prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or
- (b) To prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by -
- (c) ...
- (d) To endanger the safety of any person ..."
47 The express recognition in s 6(a) and (b) that information should not be made available if it would be likely to prejudice the security or defence of New Zealand or the entrusting of information by a foreign government or an international organisation is consistent with s 25 of the Armed Forces Discipline Act which makes it an offence for any person subject to the Act to disclose such information. 6
To similar effect are s 78A of the Crimes Act 1961 and s 20A of the Summary Offences Act 1981. These statutory prohibitions against the unauthorised disclosure of information relating to the security and defence of New Zealand are not surprising. They serve to emphasise for Defence personnel the critical importance of maintaining the highest standards of confidentiality in respect of such information.
48 The Official Information Act contains other provisions relating to the non-disclosure of official information. Under s 9 of the Act there may be good reason for withholding official information where it is necessary to avoid prejudice to the substantial economic interests of New Zealand, or to enable a Minister or department to carry out, without prejudice or disadvantage, commercial activities, or enable a Minister or department to carry on, without prejudice or disadvantage, commercial negotiations. These provisions are likely to be applicable to the Ministry of Defence in respect of the implementation of Government decisions for the re-equipment of the Defence Force.
49 Notwithstanding the principle of availability underlying the Official Information Act, it is clear that there are categories of official information which will be held by Government departments and Ministers which should not be disclosed. Persons holding and having access to such information need to take special care to ensure that such information is not disclosed. The existence of such information also means that a careful approach is required in respect of all official information. This is reinforced by the Cabinet Manual, Chapter 6, which states -
"The government holds a large quantity of information of all kinds. All government information should be treated with care and protected from unauthorised release" and "Where government documents are sensitive, they may be given a security classification. Classified documents must be handled in accordance with their classification, subject to their release under the Official Information Act or under some other proper authority".
50 The classification of documents for security purposes is carried out as a result of a decision by Cabinet on 18 December 2000.
6 These provisions also reflect the traditional judicial restraint when dealing with cases involving national security or international relations: see Eagles, Taggart, Liddell, Freedom of Information in New Zealand, 1992, 162 ff.
The security classifications system
51 The security classifications system, which is applicable to official information, has existed for many years. Its classifications and definitions have, in the normal course of events, been revised from time to time. The system in operation through the late 1990s provided three classifications: Confidential, covering information or material the unauthorised disclosure of which would have been likely to damage national interests in a significant manner; Secret, relating to information or material the unauthorised disclosure of which would have been likely to damage national interests in a serious manner; and Top Secret, covering information or material the unauthorised disclosure of which would have been likely to damage national interests in an exceptionally grave manner.
52 The revised system introduced in December 2000 provided an additional national security classification - Restricted, where compromise of information would damage national interests in an adverse manner. Two further classifications were also introduced for public interest or personal privacy reasons: Sensitive, where compromise of information would be likely to damage the interests of the New Zealand Government or endanger the safety of its citizens; and In Confidence, where compromise of information would be likely to prejudice the maintenance of law and order, impede the effective conduct of government in New Zealand or affect adversely the privacy of its citizens.
53 The Director of the Domestic and External Security Secretariat has advised us that the Ministry of Defence has updated its departmental security policy to reflect the new system. The policy is published on the Ministry's intranet and all staff have been trained. New staff are trained as part of the induction process. The NZDF has also updated its departmental security policy. Its intranet includes a self administered training module, completion of which is a prerequisite for authority to use the NZDF email system. Security training is also part of the military training system, with courses for officers and NCOs covering the subject at various levels. At this still early stage the new system appears to be bedding in satisfactorily in terms of comprehensibility, implementation and compliance.
54 Chief executives or other officers responsible for each organisation are entitled to make further more detailed rules to facilitate implementation of the classified information system within their own settings.