Chapter 1: Introduction

The approach of this review

The fundamentals of the legislation

Our initial impressions were that the OIA and LGOIMA are central to New Zealand’s constitutional arrangements and that their underlying principles are sound and that they are generally working well. These have been confirmed as the review has progressed. We therefore endorse the fundamentals of the legislation, such as: the case-by-case approach to decision-making;8 the current time limits for responding to requesters;9 the role of the Ombudsmen as the arbiter of complaints about decisions made under the OIA and LGOIMA;10 the role of guidance in assisting agencies in their decision-making;11 and, with one exception, the general framing of the conclusive and non-conclusive grounds for withholding official information.12

However, the Commission has reached the view that much could be done to improve the operation and efficiency of the official information legislation, through a mix of both legislative and non-legislative means.

Legislative amendment

When we embarked on this review we were of the preliminary view that the legislation required only minor modification and that much could be achieved simply by additional guidance in relation to the withholding grounds. As we investigated further, however, it became clear that while additional guidance is needed, and has a very valuable part to play, legislative change is also required to obviate problems in the working of the legislation and to obtain the necessary balance between openness and the interests which need to be protected in a modern age. More and more it became clear that the official information legislation is one important part of the wider environment of information management and citizen involvement. Integration with the various laws, practices and government policies already operating in that environment is increasingly important.

Our report therefore recommends significantly more legislative change than we had at first anticipated. We list the significant changes in chapter 16, but as a brief summary the main ones are:

(a)Reformulation of withholding grounds which are presently unclear and confusing – in particular the so-called “good government” grounds (chapter 3);

(b)New grounds for protecting commercial information, in particular third party information (chapter 5);

(c)New grounds for protecting information provided in the course of an investigation or inquiry that might be prejudiced by disclosure (chapter 7);

(d)Additions to the grounds for refusing requests which impose too great a workload on agencies (chapter 9);

(e)Enhancements to process such as expressly providing for urgent requests, partial transfers, and notifying third parties prior to release where privacy, commercial, confidentiality or cultural interests are at stake (chapter 10);

(f)Alignment of the legislation with government policy about the proactive release of information (chapter 12);

(g)New and critical leadership, oversight and coordination functions in the field of government information (chapter 13);

(h)Increasing the reach of the legislation by including additional agencies within its scope (chapter 14); and

(i)Alignment between the OIA and LGOIMA, and clarification of their relationship with each other and other legislation (chapters 15 and 16).

Amending the legislation would also provide an opportunity to reinforce the current cornerstones of the legislation, such as giving greater prominence to the public interest test that applies to the non-conclusive withholding grounds;13 and rationalising the Ombudsmen’s complaints process and filling gaps in the complaints jurisdiction.14

Non-legislative reforms

In other areas however, we consider that guidance should be the main tool to achieve greater certainty and consistency. As a general matter we recommend that guidance could be greatly enhanced if the Ombudsmen’s cases were more consistently and routinely published, if firmer and more specific guidelines using case examples and elucidated principles and presumptions were published to replace the Ombudsmen’s existing Practice Guidelines, and if a full commentary analysing the Ombudsmen’s decisions were produced.15

We further recommend that enhanced guidance is desirable in the specific areas of:

(a)The public interest test, as it applies to the non-conclusive withholding grounds (chapter 8);

(b)Consultation and transfers of requests between departments and ministerial offices (chapter 4);

(c)Planning information releases as part of the policy development process (chapter 4);

(d)The public interest factors relevant to the commercial withholding grounds (chapter 5);

(e)The operation of the privacy withholding ground, as well as specific privacy issues such as public interest balancing where the interests of children are involved, and the anonymity of officials (chapter 6);

(f)The operation of the maintenance of the law withholding ground (chapter 7);

(g)Informing requesters about the operation of the legislation (chapter 9);

(h)Processing issues for agencies such as dealing with urgent requests and interactions between agencies over requests (chapter 10);

(i)Categories and examples of information that should be proactively released unless there are good reasons not to (chapter 12); and

(j)Some aspects of the interaction of the legislation with the Public Records Act (chapter 10).

Further work

As part of the review we identified some areas where further work is desirable to develop aspects of the official information legislation:

(a)A working party should be established to formulate the parameters of a withholding ground relating to tikanga Māori (currently included in the LGOIMA but not in the OIA) (chapter 7);

(b)A review of charging policy should be undertaken to establish a new charging framework that is cohesive, consistent and principled (chapter 10);

(c)The interaction between the official information legislation and government release and reuse policy (NZGOAL) should be addressed with a view to producing guidance for agencies (chapter 10);

(d)A working party should be convened to examine the current schedules to the OIA and the LGOIMA to eliminate anomalies and bring within coverage organisations with such a relationship to central or local government that they should be included (chapter 14).

A side-effect of the legislation

There is some anecdotal evidence that sometimes individuals subject to the official information legislation are tempted not to record reasons or advice but rather to convey it orally with the objective of avoiding disclosure. Mai Chen, in her book Public Law Toolbox, calls it “driving work off-paper”.16 It is not clear how serious a problem it is (some say in fact that there is very little evidence of it)17 but to the extent that it happens it is obviously undesirable. It can lead to deficient policy development because the discipline of writing requires more rigorous analysis. It also means that the agency itself lacks an adequate record for the guidance of its own officials in the future.

One cannot of course solve everything by legislation. Part of the remedy lies in education and better understanding. But we hope that some of this report’s recommendations in relation to withholding grounds, particularly the “good government” grounds, may give officials greater confidence that they can rely on them to protect sensitive material. The Public Records Act 2005 will also contribute to better record-keeping, and we note our recommendations in chapter 15 that in cases where requests are refused because the information is not held by the agency, the Ombudsmen may refer the matter to the Chief Archivist.18


We have no doubt that the changes we recommend are needed to enable New Zealand to keep pace with the rest of the world and have a system which will be fit for purpose in a fast-moving environment. Opportunities for review and reform do not arise frequently, perhaps once in a generation. There has not been a full review for 30 years, and there may not be another for some considerable time. It is not enough to legislate for the present moment: we need something which will last into the future, and anticipate future developments. In a context which changes so quickly, the law must be fit for that future.

See chapter 2.

See chapter 10.

See chapter 11.

See chapter 2.

See chapter 7.

See chapter 8.

See chapter 11.

See chapter 2.

Mai Chen Public Law Toolbox (LexisNexis, Wellington, 2012) at [10.4.6].

Hazell, Worthy and Glover, above n 2, at 262–263.

See chapter 15 at R133.