Appendix A: Recommendations

chapter 11 – Complaints and remedies

Alignment of process

R72The complaint-handling process contained in Parts 3 and 4 of the OIA and LGOIMA should be amended to achieve consistency with the complaint-handling process contained in Part 2 of each Act. However, this should not be at the expense of recognising the distinct nature of requests for information under the existing sections 22, 23 and 24 of the OIA and sections 21, 22 and 23 of the LGOIMA.

R73Section 27(1) of the OIA and section 26(1) of the LGOIMA should include as a reason for refusal in relation to a request for information under Part 4, that making the information available would be contrary to an enactment or would constitute contempt of court or of the House of Representatives.

R74The reasons for refusing a request for personal information under section 27 of the OIA and section 26 of the LGOIMA and under the Privacy Act 1993 should be kept in alignment as far as possible.

New grounds for complaint

R75To improve the clarity of the complaint grounds, section 28(4) of the OIA and section 27(4) of the LGOIMA should be removed and replaced with a new ground providing for the Ombudsmen to hear complaints that an agency has failed to make a decision in response to a request for official information within 20 working days (or a properly extended time limit) or “as soon as reasonably practicable”.

R76To improve the clarity of the complaint grounds, section 28(5) of the OIA and section 27(5) of the LGOIMA should be removed and replaced with a new ground providing for the Ombudsmen to hear complaints that an agency has failed to make official information available in response to a request within 20 working days (or a properly extended time limit) or “as soon as reasonably practicable”.

R77Section 28 of the OIA and section 27 of the LGOIMA should provide for the Ombudsmen to hear complaints that an agency has not properly transferred a request for information, whether fully or partially; and that an agency has not complied with designated time limits for transfers.

R78Section 28 of the OIA and section 27 of the LGOIMA should provide for the Ombudsmen to hear complaints that an agency has not complied with its obligations to notify affected third parties prior to releasing their information.

R79Section 28 of the OIA and section 27 of the LGOIMA should provide for the Ombudsmen to hear complaints that an agency has not followed proper process before deciding to release information. The complaint ground should only become available after the information has been released.

 

The veto

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

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.

Enforcing an Ombudsman’s recommendations

R82A new provision in the OIA and LGOIMA should state that the Ombudsmen can report publicly on an agency’s failure to comply with its statutory obligations under those Acts.

R83A new provision in the OIA and LGOIMA should state that, where an agency is under a public duty to release specified official or other information, the requester may bring court proceedings for such relief as is available on his or her own behalf.

R84A new provision in the OIA and LGOIMA should state that the requester’s costs of bringing such proceedings should be met by the Crown on a solicitor-client basis, unless the court is satisfied that the proceedings have not been reasonably or properly brought.