Chapter 11: Complaints and remedies

The veto power

In the issues paper we considered whether the Ombudsmen should be given a final power of decision over the release of information. This would involve removing the existing capacity for the Governor-General by Order in Council, and local authorities by resolution at a meeting, to “veto” the Ombudsmen’s recommendations to release their information, which otherwise would give rise to a public duty to release after 21 working days.

Most submitters were not in favour of removing the power of veto. A clear view emerged that the OIA veto is important to ensure the comity of the relationship between the Ombudsmen and the Executive. We found these arguments persuasive and do not recommend removing the Order in Council veto power under the OIA. However, we recommend that the operation of the veto in LGOIMA should be made consistent with the OIA veto: namely, that it should only be exercisable by Order in Council on the recommendation of the relevant Minister (usually, the Minister for Local Government).

History and operation of the two vetoes

The OIA and LGOIMA vetoes operate somewhat differently. Under the OIA, the veto is exercised by Order in Council. Therefore if an agency or Minister wishes to exercise the veto, they must effectively persuade the Executive Council to do so. In contrast, under LGOIMA, the local authority that is the subject of the recommendation can veto simply by way of resolution passed at a meeting of the authority.521

Certain procedural requirements apply to the exercise of the veto under both Acts. The veto can only be exercised on the basis of the same withholding ground or reason for refusal that was originally considered by the Ombudsman.522 The fact that the veto was used must be published in the New Zealand Gazette, stating why the Ombudsman’s recommendation was overridden and giving evidence to support that decision. In addition, for the LGOIMA veto, the Gazette notice must include “the source and purport of any advice on which the decision is based”.523

The veto power is, in fact, very rarely used. The Order in Council veto has never been exercised and the local authority veto has been used twice.524

We note that a potential deterrent against using the veto is found in section 32B of the OIA and section 34 of LGOIMA. These sections expressly state that the person who made the original request, which is now the subject of the veto, can apply to the High Court for the Order in Council (under the OIA) or the local authority resolution (under LGOIMA) to be reviewed.

The Court may make an order confirming the Order in Council or the resolution, or may make an order declaring it was beyond the powers conferred by the legislation or was otherwise wrong in law. In addition, the relevant sections provide that:

(4) Unless the High Court is satisfied that an application brought under subsection (1) has not been reasonably or properly brought, it shall, in determining the application and irrespective of the result of the application, order that the costs of the applicant on a solicitor and client basis shall be paid by the Crown

or, in the case of LGOIMA, “by the local authority that made the decision in respect of which the application is brought”.

This prevents agencies from exercising the veto in the knowledge that requesters will be unable to afford to bring proceedings in judicial review. Moreover, the Crown or the local authority must fund those proceedings on a solicitor and client basis, regardless of whether the Court finds the veto was properly exercised or not. We suspect this is an effective deterrent against use of the veto, evidenced perhaps by the infrequency of its use.

Our recommendations for the Order in Council veto

In our issues paper we suggested removing the veto in the OIA in order to inject a further level of certainty and to strengthen the official information regime.525 We also wondered whether it serves a clear purpose, given that in that form it has never been exercised.

The majority of submitters believed that removing the Order in Council veto would upset the equilibrium of the official information decision-making system. A strong view emerged that the veto is important to preserve the final decision-making power and authority of the Executive, even if it is never used. Removing it might adversely affect the Ombudsmen’s relationship with the Executive. Currently its very existence serves to moderate decision-making. It permits the Ombudsmen to make recommendations to release where required, but with a kind of “safety valve” for the Executive if required.

Accordingly, we do not recommend removing the Order in Council veto.

R80The “veto” of an Ombudsman’s recommendation by Order in Council under section 32(1)(a) of the OIA should be retained.

Our recommendations for the local authority veto

There is a difference between the OIA veto and the LGOIMA veto. The first is exercisable by Order in Council, and involves a different body from the body which is the subject of the recommendation. But the second is exercisable by the same body which is the subject of the recommendation.

There is a risk that this gives rise to a perception of self-interest in relation to the exercise of the LGOIMA veto, whether real or apparent. We considered whether the local authority veto should be removed altogether, but thought this went too far. It would make the Ombudsmen the final decision-maker of whether to release official information, without a right of appeal by which the local authority could contest the merits of the decision.

We prefer to address the possible perception of self-interest by introducing the same element of separation into the LGOIMA veto as currently exists for the OIA veto. We note that this separation has not always been present in the OIA: prior to 1987 the OIA veto was exercisable by individual Ministers with responsibility for the portfolio where requests were made, in a parallel of sorts to the existing situation under LGOIMA. In that form it was exercised seven times by individual Ministers.526 Then in 1987, by legislative amendment, the OIA veto power was transferred to the Executive Council, and since then it has never been used.527

Removing the veto from the hands of the body that is subject to the recommendation has proved an effective deterrent against its use under the OIA, and one which makes sense to apply to the LGOIMA as well. While there are already some safeguards against the improper use of the LGOIMA veto – for example, that the source of any advice taken by the local authority must be published in the Gazette, and that the local authority must pay the cost of a person’s application to review the use of the veto – the separation we propose will strengthen those existing safeguards and contribute to greater public confidence.

If it is thought inappropriate to subject local government to a central government control in this way, it should be noted that a number of bodies of essentially local character have for many years been under the OIA, and thus subject to the Order in Council veto: district health boards, school boards of trustees, and tertiary education institutions are among them.

Accordingly, we have concluded that, just as in the case of central government agencies, the veto should be exercised by Order in Council in the case of local government. A local authority faced with an Ombudsmen recommendation it feels it ought not to comply with could make a resolution to that effect; and approach the relevant Minister (usually the Minister of Local Government) to recommend to the Executive Council that the power of veto be exercised. This should be done in a timely manner, to prevent local authorities stalling release inappropriately.

R81Section 32(1) of the LGOIMA should be amended so that the “veto” of an Ombudsman’s recommendation under the LGOIMA is only exercisable by Order in Council.

LGOIMA, s 32(1).

OIA, s 32A(3); LGOIMA, s 33(3).

LGOIMA, s 33.

Issues Paper at [11.44] – [11.69]. Although in its previous form, when the OIA veto was exercised by individual Ministers, it was used seven times: see below, n 526.

Issues Paper at [11.64].

For case notes which set out the text of the vetoes see Office of the Ombudsmen Case Notes (5th Compendium, 1983, case numbers 13 & 69, 28, 58 & 60) at 34, 44, 80; (6th Compendium, 1984, case numbers 23, 228) at 75, 118; (7th Compendium, 1986, case number 730) at 250; (8th Compendium, 1987, case numbers 879 & 907) at 73.

Official Information Amendment Act 1987, s 18.