Idiot/Savant v the Cabinet Office

The blogger Idiot/Savant at No Right Turn probably knows the ins and outs of the Official Information Act better than anyone. And he has sparked an interesting legal argument with the Cabinet Office over legal advice provided to John Key (see his post “Time to see if the Ombudsman will keep their word“). The particular legal advice at issue was with regard to whether Judith Collins breached the Cabinet Manual during her visit to Oravida’s HQ in China:

Last month, we learned that Judith Collins had taken time off a taxpayer-funded trip to China to endorse her husband’s company – a company which had also donated significant sums of money to the National Party. The endorsement appeared to violate the Cabinet Manual, but John Key stepped up and claimed that the Cabinet Office said it was all OK. Then, just a few days later, he admitted that he’d lied about that:

Prime Minister John Key has admitted he misled reporters over Cabinet Office advice about a controversial visit by Justice Minister Judith Collins to a Chinese company associated with her husband while on an official trip to China.

On Monday Key told media the Cabinet Office had cleared Collins of a conflict of interest after translating comments on Oravida’s website which stated that she had praised its products.

But today Key’s office confirmed that the Cabinet office had only read the English language version on the website, which did not contain those references.

 In the process, he implicitly raised serious questions about the quality of the Cabinet Office’s advice.

There’s a prior ruling by the Ombudsman on the release of Cabinet Office advice, declaring such advice to be “inherently confidential”. However, Idiot/Savant notes “an important caveat” at para 60 of the ruling:

60. I pointed out to the requesters and DPMC that if a Minister refers to Cabinet Office advice publicly in a way that is misleading or exaggerated, the countervailing public interest in disclosure is likely to outweigh the need for confidentiality.

So, given that important caveat, over to Idiot/Savant:

Once Key admitted misleading the public about the advice, I naturally requested it. And naturally, the Cabinet Office (one of our most secretive public bodies) refused my request. I’ve now complained to the Ombudsman. Let’s see if they keep their word, or if they’re just in the business of covering up for the powerful.

There are a number of different ways that the Ombudsman could handle this:

  1. Siding with Idiot/Savant and ordering disclosure of the Cabinet Office advice on public interest grounds.
  2. Siding with the Cabinet Office, by simply ruling that public interest does not outweigh the inherently confidential nature of the advice.
  3. Siding with the Cabinet Office, by arguing that the Cabinet Office’s advice was flawed, rather than the Prime Minister’s reference to the advice. Essentially, the Ombudsman would be arguing that the Cabinet Office gave advice based on incomplete information, and that John Key accurately portrayed that advice to the media. However, I’d find it difficult to see how the Ombudsman could come to this result, given Mr Key’s explicit statement that the Cabinet Office had given its advice after translating comments on Oravida’s website, when no such translation had at that stage been done. That seems to me to be a misleading reference to the Cabinet Office advice, even if it was not intentionally misleading.

It will be interesting to see how the Ombudsman views “the public interest” in this case.

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