Chapter 1: Introduction

Previous work

We now outline work previously done in New Zealand which has informed our review.

1997 Law Commission review

In 1992 the Law Commission was given a reference to review certain specific aspects of the OIA. Publication of the Commission’s final report on that reference was delayed until 1997, in part so that the report could take account of the implications of the move to the MMP electoral system. In its report, the Commission commented that the OIA generally achieved its stated purposes, but that there were a number of factors that inhibited the effective operation of the Act and thus inhibited the wider availability of official information. It said:19

The major problems with the Act and its operation are:

·the burden caused by large and broadly defined requests,

·tardiness in responding to requests,

·resistance by agencies outside the core state sector, and

·the absence of a co-ordinated approach to supervision, compliance, policy advice and education regarding the Act and other information issues.

Neither these problems, nor the terms of reference, bring into question the underlying principles of the Act.

The Commission’s report made a number of recommendations for specific amendments to the official information legislation, as well as administrative reforms to assist the smooth operation of the legislation. A few of the Commission’s recommendations were implemented by amendments to the Act introduced through a Statutes Amendment Bill in 2003, but most have not been implemented.

The Law Commission report is the only previous formal review of the OIA. As noted above, it was not a review of the Act as a whole but of certain provisions of the Act, although the Commission did make some more general comments on the Act’s operation. The Commission noted that most of the issues raised in its terms of reference also related to the parallel provisions of the LGOIMA.20 We are not aware of any previous review that has focused on the official information provisions of the LGOIMA. A 1990 report of a working party on the LGOIMA was focused on Part 7 of the Act (the part dealing with local authority meetings), although it did make some recommendations about the coverage of the Act that were also applicable to the official information provisions.21

Research projects

In the past few years there have been two research studies on the OIA. (Both studies focused solely on the OIA, and did not consider the LGOIMA). These studies provided important sources of data for our review.

Steven Price from the Faculty of Law at Victoria University of Wellington undertook research in 2002.22 His research had two parts: an analysis of agencies’ responses to OIA requests, and two informal roundtable discussions (one with requesters and one with agencies that handle requests).23 He analysed the views of requesters and officials, as well as various features of the requests and responses (including sources of requests, processing time, information withheld and grounds used for withholding). His overall conclusions were that there are grounds for both comfort and concern in the results. Most requests were met in full and within the deadline; many requesters obtained useful information as a result; and many officials applied the Act conscientiously, giving proper consideration to the grounds in the OIA when information was withheld. On the other hand, a significant minority of responses were late; often when information was withheld there was little evidence that due consideration had been given to the legal grounds for doing so; and there was a general failure to explicitly balance the public interest in making information available against the reasons for withholding that information.24

Nicola White carried out her research on the OIA while based at the Institute of Policy Studies at Victoria University of Wellington between 2004 and 2006. She had previously worked in senior positions in the public service, where she had experience of responding to OIA requests. In addition to undertaking a comprehensive review of the existing literature on the Act, she interviewed 52 people about their experiences of the Act. These people were from a range of backgrounds, and included both requesters and responders. Her research and conclusions were published as a book.

White identified 10 key themes from her review:25

  • government is now much more open than it was before the OIA;
  • many OIA requests are processed easily;
  • there is still significant uncertainty on many detailed questions of substance and process in relation to the Act;
  • the role of the Ombudsmen with respect to the OIA is settled;
  • delay in responding to OIA requests is, and always has been, a problem;
  • large requests are hard to manage;
  • more training about the Act is needed within the state sector;
  • protecting government decision-making remains contentious;
  • electronic information will provide a major challenge for the Act; and
  • it may be time to consider systems for pre-emptive release of official information.

These themes were largely confirmed by data from White’s interviews.26

White concluded from her research that the OIA had played a major role in shifting the culture of government towards much greater openness, that the basic systems for processing OIA requests generally work well, that the quality of decision-making and advice within government had improved due to the increased scrutiny made possible by the OIA, and that the Ombudsmen had performed their role as the review authority for the Act well.27

However, she also found that the Act continues to present significant difficulties and challenges: managing the interface between Ministers and officials in relation to politically-contentious requests; managing large requests; dealing with issues relating to timeframes for responding to requests; meeting the challenges of information management in an electronic age; striking the right balance between openness and protecting government advice and decision-making processes; coping with the administrative burden of responding to OIA requests; and building up systematic expertise in the operation of the OIA within the state sector.28

White makes a number of suggestions for responding to the challenges facing the Act, and we discussed some of these suggestions in our Issues Paper. Overall, she sees a need for clearer rules about the Act, and for a stronger leadership role in relation to the OIA.29

We have found Price’s and White’s research very helpful for our review. We agree with their conclusions that the OIA has had a beneficial effect in opening up New Zealand government to scrutiny and that it works well in many respects, but that some significant problem areas remain. We note that their research, illuminating though it was, involved relatively small numbers of interviewees and did not cover the LGOIMA, which is why we supplemented it with our own survey, discussed below.

In the final stages of preparation of this report two other books were published. One is Access to Information by Graham Taylor and Paul Roth.30 This book is largely based on a chapter in Graham Taylor’s earlier book on judicial review,31 but is considerably expanded. It refers to many Ombudsmen case-notes, and contains analysis of the OIA’s and LGOIMA’s provisions. The other is Mai Chen’s Public Law Toolbox which contains a helpful and practical section on the OIA.32

Law Commission Review of the Official Information Act 1982 (NZLC R40, 1997) at [E4].

At xiii.

IWG Cochrane, JF McLees and PW Pile Report of the Working Party on the Local Government Official Information and Meetings Act 1987 (report to the Minister of Local Government, 1990).

The results were published as Steven Price The Official Information Act 1982: A Window on Government or Curtains Drawn? (New Zealand Centre for Public Law, Victoria University of Wellington, Wellington, 2005).

At 7. Price submitted OIA requests to all national-level agencies subject to the OIA, asking for copies of their 10 most recent OIA responses during the last year together with copies of the requests themselves: this information formed the basis of his quantitative dataset. In addition, he requested the last 10 requests where information was withheld, the last five where the time limit for response was extended, and the last five in which a Minister or Minister’s office was consulted before the response was prepared. This latter information was included in his qualitative analysis.

At 50.

Nicola White Free and Frank: Making the Official Information Act 1982 Work Better (Institute of Policy Studies, Wellington, 2007) at 91–93.

At ch 21.

At ch 22.

At ch 23.

White, above n 25, at chs 25–32 makes proposals for change. Other useful commentary is contained in papers delivered at the Information Law Conference Marking 25 Years of the Official Information Act (Wellington, 15 May 2007).

Graham Taylor and Paul Roth Access to Information (LexisNexis, Wellington, 2011).

GDS Taylor (assisted by JK Gorman) Judicial Review: A New Zealand Perspective (2nd ed, LexisNexis, Wellington, 2010).

Chen, above n 16.