Chapter 1: Introduction

 

The scheme of the Acts

The OIA and LGOIMA provide a mechanism for citizens to access government information. Both Acts list the agencies which are subject to them. The great majority are listed by name, others are referred to by category, and others by reference to schedules of other Acts. Only the agencies thus listed are subject to the legislation. As we shall show later in chapter 14, there are anomalies in some of the lists.

Official information is any information held by one of these agencies. It is the fact that the information is held which is important, not the origins or authorship of the information. The fundamental principle of the Acts is the presumption of availability of information. Information shall be made available unless there is good reason for withholding it.

To be provided with information a person must request it from the agency that holds it, either in writing or orally. They must do so with “due particularity” so that the agency can readily understand what is being asked for. Upon receiving a request an agency will consider whether it is framed in sufficiently clear terms for it to respond. If not, the agency should assist the person to reframe their request. An agency or Minister has the power to refuse a request if it involves “substantial collation and research” and for other administrative reasons.

Agencies are required to respond to requests as soon as reasonably practicable, but in any case not later than 20 working days after the day the request is received. Both the OIA and the LGOIMA make provision for transferring requests to other agencies or Ministers in certain cases. Agencies and Ministers can impose reasonable charges.

Both Acts are based on a presumption that information will be disclosed, but both recognise that particular interests exist that need to be protected, and provide withholding provisions which agencies and Ministers can engage to justify withholding some or all of the information within the scope of the request. Some of these withholding grounds are conclusive, while others can be overridden where the public interest in the release of the information outweighs the protected interest.

To support officials who respond to requests and to provide some insight for requesters, the Ombudsmen have issued Practice Guidelines on the OIA and the LGOIMA. Guidance also exists in other publications of the Ombudsmen such as the Ombudsmen Quarterly Review.

Both Acts contain a complaints process for requesters who are dissatisfied with the response they receive from an agency or Minister or with a decision to withhold information. The Office of the Ombudsmen is responsible for receiving and investigating official information complaints. An Ombudsman has power to recommend that an agency or Minister release official information, and the agency or Minister becomes subject to a public duty to follow that recommendation unless the recommendation is “vetoed,” either by an Order in Council (under the OIA) or by a local authority resolution (under the LGOIMA).

The courts have a limited role to play under each Act. Provision is made for bringing judicial review of decisions but this is almost always postponed until an Ombudsman has investigated a decision and made a recommendation.