Appendix A: Recommendations

Chapter 12 – Proactive release and publication

Duty to proactively release

R85A new provision in the OIA and LGOIMA should place a duty on agencies to take all reasonably practicable steps to proactively make official information publicly available, taking into account matters such as the type of information held by the agency and the public interest in it, the agency’s resources and any relevant government policy.

R86Agencies should include proactive release strategies and progress reports in their annual accountability documents.

 

R87The new statutory duty to proactively release information should apply to all agencies that are subject to the OIA and LGOIMA.

R88The new statutory duty to proactively release information should be reviewed three years after it comes into force.

R89Section 20 of the OIA should be amended to require every agency to publish on its own website the information specified in that section, in place of the obligation on the Ministry of Justice to publish the Directory of Official Information.

R90The new statutory duty to proactively release information should not mandate particular categories of information that must be proactively released. Rather, guidance should be developed for agencies including examples of information that should be released unless there are good reasons not to. This list should be reviewed periodically with a view to expanding it where possible.

R91Agencies that produce information systems strategic plans (ISSPs) should provide them to the oversight office.

Regulation and guidance

R92The new statutory duty to proactively release information should be placed in a new Part to each Act that also sets out provisions governing proactive release.

R93An official information request should continue to be a request for the provision of information to an individual requester (for the purposes of section 12 of the OIA and section 10 of the LGOIMA) and no legislative change is required.

R94The new Part to each Act that regulates proactive release should recognise public requests that official information be published and require agencies to take such requests into account in developing their proactive release strategies.

 

R95The new Part to each Act that regulates proactive release should require agencies to take account of the interests protected by the respective withholding grounds in each Act in reaching decisions about the proactive release of official information.

R96The Ombudsmen’s Guidelines should address how the public interest test is applied before information is proactively released.

R97The protection of privacy in the context of proactive publication programmes should continue to be covered by the Privacy Act 1993.

R98The new Part to each Act that regulates proactive release should make the proactive release of third party information that would otherwise be protected by the commercial and confidentiality withholding grounds and, in the case of the LGOIMA, the tikanga Māori ground, conditional on the prior consent of the relevant third party.

R99The proactive release of such third party information without consent should be a new ground of complaint to the Ombudsmen in section 28 of the OIA and section 27 of the LGOIMA.

R100Section 48 of the OIA and section 41 of the LGOIMA should continue to apply to the release of official information in response to specific requests, but should not be extended to the broader proactive publication of official information.

R101Liability issues in relation to proactive release and best practice due diligence processes for managing them should be addressed in guidance.

 

Oversight of proactive release

R102Oversight functions in relation to the official information legislation should include oversight of proactive release activities in the public sector including monitoring, policy, review and promotion of best practice.

R103The oversight office should contribute to the work of the Data and Information Re-use Chief Executives Steering Group, in an advisory capacity.

R104The Privacy Commissioner should have an oversight role in relation to the privacy aspects of proactive release, including:

(a)consulting with the oversight office;

(b)contributing to the work of the Data and Information Re-use Chief Executives Steering Group as an expert adviser; and

(c)having the power to recommend a Privacy Impact Assessment prior to proactive release.