Appendix A: Recommendations

 

chapter 7 – Other withholding grounds and reasons for refusal

Protecting information obtained in the course of an investigation or inquiry

R24A new withholding ground should be added to section 9 of the OIA and section 7 of the LGOIMA, stating that good reason for withholding information exists where it is necessary to protect information which has been provided to an agency in the course of an investigation or inquiry, and disclosure is likely to prejudice the conduct or outcome of that investigation or inquiry. The new withholding ground should expressly provide that:

(a)it covers only investigations or inquiries authorised by or under statute;

(b)it applies only during the course of an investigation or inquiry, and not once it has been determined;

(c)it covers information supplied to, generated or obtained by the agency in the course of an investigation or inquiry;

(d)it does not restrict or otherwise affect the existing “maintenance of the law” withholding ground.

“Maintenance of the law”

R25The Ombudsmen’s Guidelines should address in detail, and with examples, the proper use of the “maintenance of the law” withholding ground.

“Publicly available” information

R26Section 18(d) of the OIA and section 17(d) of the LGOIMA should be amended to state that a request may be refused where the information requested is either:

(a)publicly available and reasonably accessible to a member of the public; or

(b)will soon be publicly available, and to require its release before that time is unnecessary, or would be unreasonable in the circumstances.

R27The OIA and LGOIMA should define the term “publicly available” and should confirm that it may include information that is available on payment of a fee.

 

Legal professional privilege

R28The OIA and LGOIMA should state that legal professional privilege for the purpose of those Acts means legal professional privilege as defined in the Evidence Act 2006.

R29As a drafting matter, the legal professional privilege withholding ground in section 9(2)(h) of the OIA and section 7(2)(g) of the LGOIMA should be amended for consistency with section 27(1)(g) of the OIA and section 26(1)(g) of the LGOIMA, so that an agency may withhold requested official information if “withholding the information is necessary to avoid a breach of legal professional privilege”.

Other withholding grounds

R30The OIA and LGOIMA should not include, as a further reason for withholding information, that the withholding of the information is necessary to protect an individual or individuals from harassment.

R31The Government should establish a working party to examine whether there should be a new ground in the OIA relating to the protection of cultural matters, and if so, what its terms should be; and whether such a ground should also be included in the LGOIMA to supplement or extend the existing ground in that Act relating to the protection of tikanga Māori or wāhi tapu (in relation to certain matters under the Resource Management Act 1991).