Chapter 1: Introduction

The context of this review

Both the OIA and LGOIMA have had a significant impact. The climate of openness has developed beyond recognition since the 1980s. Huge amounts of information are now requested and released. What distinguishes the New Zealand system from those in some other places is that the legal changes brought about by the legislation have been matched by a degree of official and political acceptance.2 The continuing work of the Ombudsmen, who hear complaints about the handling of requests, has also played a significant part in ensuring proper and balanced compliance by agencies.

However, time has wrought significant changes to the surrounding context in which the Acts operate. Those changes have created tensions. We now discuss the more important of those changes. Some of them raise questions about future directions; the legislation must keep pace with them.

Developments in technology

The technological context for official information legislation has changed almost beyond recognition over the past 30 years. When the OIA was enacted official information was still mainly kept in the form of hard-copy documents. Since then, the digital information revolution has radically transformed the nature and uses of official information. The volume of information that can be produced, collected and stored has increased dramatically. Official information can take new forms, such as email, tweets, text messages, blogs and digital video. Digitisation and advances in software allow information to be analysed in ways that were not envisaged when it was created or collected, revealing previously unknown relationships, patterns or trends.

These developments have significant implications for the management of information within state sector organisations and for the uses that can be made of that information. In some ways technology has made the management of official information easier. It can be readily stored and retrieved. Yet in another way technology has made things more difficult. The public service now has to deal with more and more information. Email “trails” and numerous early drafts of documents mean there is more material to collate, scrutinise and assess – much of it repetitive, some of it of minimal relevance.

Public expectations

Technological change has also helped to drive social and cultural change. Today there is a much stronger expectation of openness and availability of information than in the past and the OIA is both a product and a driver of this trend. The expectation of availability is not limited to government information. The internet in particular, through the rise of search engines, has helped to create an expectation of a very wide variety of information being available to anyone at any time. In addition, society as a whole has arguably become more open and less secretive, although protection of personal privacy remains important and is a strong counter-balance to the drive for greater freedom of information.

Perhaps linked to this facility for releasing more and more information, people’s attitudes towards government are also changing. People seem less willing to trust government to do the right thing and more suspicious of any government activity that takes place in secret. Citizens expect to be able to find out how, why, and by whom government decisions are made and official information legislation, together with technological change, supports and encourages this expectation. Freely available information contributes to the climate of expectation in the public.

Proactive release

This development flows from the first two. One of the benefits of the new technology is that government information can now be proactively released on the internet for all to see, rather than having to be asked for by individual requesters. To use a common metaphor, there is a growing expectation that much information will become available through a “push” rather than a “pull” model. We describe in chapter 12 the various policy initiatives underway to make important and useful government data and information available to everyone via the internet.

These initiatives are the result of several drivers. Some of them are economic: data of high value can be used by individuals and groups to produce a social benefit. Another driver is resource consideration: if information is readily and publicly available it does not have to be asked for and released on an individual basis. The open society should be truly open, without the need to ask. This has clear implications for the OIA and LGOIMA, which need to recognise this new development. The interface between the legislation and some of these policy initiatives raises some important questions.

The commercial setting

The last two decades have seen extensive growth in commercially oriented public organisations. State Owned Enterprises, Crown Research Institutes, Crown financial institutions, Crown companies and other statutory entities are responsible for significant assets. They deal in the marketplace in competition with private organisations which are not subject to the same constraints. Council-controlled trading organisations undertake business. Their structures can vary widely but they again operate in the marketplace.

The official information legislation is seen by some as an unfair restraint on those who deal in this volatile environment. How can commercial sensitivity and competitive position be properly safeguarded in the context of an open system? Public-private partnerships and contracts raise yet further issues. Some have asked whether the legislation should be modified to better take account of this reality. Should a public agency which holds commercial information of a third party be required to disclose it to a requester? What measures should be in place to give such information appropriate protection?

Resources

This review has taken place during a period when the government is operating under significant fiscal constraints. We are aware that sometimes large requests for information can impose considerable burdens on the resources of an agency: finding, collecting and making decisions about the release of this information can be a time-consuming exercise. We must try to find ways of controlling requests which place unreasonable burdens on an agency, but never at the expense of the fundamental principle of openness which underlies the legislation. This is a particularly challenging question: striking the right balance between the right to know and the excessive exercise of it.

 

Overseas developments

A further aspect of the context in which this review has taken place is developments in freedom of information internationally. The United Kingdom has recently reviewed its legislation, as have the Commonwealth of Australia and some of the Australian states. There are common themes, although little unanimity in detail, in the reforms in those jurisdictions. The encouragement of pro-active or pre-emptive release of information, and the establishment of offices of Information Commissioner are pervasive features. We must study these developments but also keep in mind their different contexts.

The legislative landscape

The official information legislation sits within a wider and constantly changing legislative landscape. Many Acts have been passed since the OIA. First, the philosophy of the official information legislation is supported by the overarching provision in the New Zealand Bill of Rights Act 1990 which protects the right to freedom of expression including the freedom to seek, receive and impart information or opinions of any kind in any form.3

Secondly, some of these other statutes deal with the management and handling of information. The most important of these is the Public Records Act 2005 which lays down requirements for record-keeping in the public sector and regulates which documents must be kept and which may be disposed of. The inter-dependence of the two Acts is clear: the Public Records Act provides for proper recording practices, which facilitates and regulates compliance with official information legislation. Likewise there are synergies and contrasts with the Privacy Act 1993 which was the subject of a recent Law Commission review.4 A Privacy Amendment Bill before Parliament at the time of writing facilitates, but also controls, the sharing of information between government agencies.5

Thirdly, another part of the context is a group of Acts which require certain types of information to be published or otherwise made available. The Public Finance Act 1989 requires the Government to report on its fiscal and economic policies. Likewise the Crown Entities Act 2004, the State-Owned Enterprises Act 1986 (and the State-Owned Enterprises Continuous Disclosure Rules), the Crown Research Institutes Act 1992 and the Local Government Act 2002 impose reporting requirements.

Fourthly, other legislation has brought structural change. Privatisation has seen some organisations leave the public sector, while others have remained within it but radically changed their forms and mandates. New entities have been created. The State Sector Act 1988 replaced a unified public sector with relatively autonomous government departments, and more clearly delineated the responsibilities of Ministers and heads of departments. Local government has also undergone major restructuring through the Local Government Act 2002. These changes at both national and local level may have increased the potential for tensions over the release of information. This shifting structural context raises some very difficult and important questions as to which entities should be subject to the OIA (and LGOIMA) regime. One of the hardest questions is the criteria by which it is decided who should be in, and who out.

Fifthly, changes in our electoral legislation have also raised issues. The move to a mixed member proportional (MMP) electoral system has fundamentally altered New Zealand politics. The extensive use of the OIA by members of Parliament and researchers for opposition parties was not anticipated by the Danks Committee on Official Information which originally proposed the OIA, but is now a major feature of the OIA landscape. While this development is not a product of MMP alone, it has certainly been accelerated by the competition between the increased number of political parties. The coalitions and support arrangements which have become a feature of MMP can also create complications for the application of the OIA.

Better Public Services

Shortly before the completion of this report, the Government released the report of an Advisory Group on Better Public Services.6 A recurring theme of that Report is that citizens and businesses expect to have a say on state services, and that the direct influence of citizens and businesses on service delivery must be at the heart of state sector reform. But to accomplish this more information must be made available to citizens. The Better Public Services Report finds that presently, information on state services in New Zealand is not made routinely available, and “citizens and businesses find government confusing and costly to deal with”.7 It notes a reluctance to open up areas of information and decision-making that have traditionally been out of bounds.

In other words, a focus of the Better Public Services Report is the ready availability of information to citizens. That is what the official information legislation has always been about. We now need to ensure that we move to the next level, and that there are sufficient incentives “to increase progressively the availability of official information to the people of New Zealand” as the purpose of the OIA requires.

These, then are the strands which intertwine to create the rich and complex context to this review.

See Robert Hazell, Ben Worthy and Mark Glover The Impact of the Freedom of Information Act on Central Government in the UK: Does FOI Work? (Palgrave Macmillan, Basingstoke, 2010) at 273.

New Zealand Bill of Rights Act 1990, s 14.

Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 (NZLC 123, 2011).

Privacy (Information Sharing) Bill 2011 (318-1).

Advisory Group Report on Better Public Services (November 2011).

At [2.3].