Chapter 10: Processing requests


Consultation is a process that is largely invisible within the official information legislation319 but it is an important aspect of the process of handling official information requests in a number of ways. It may be necessary or desirable for an agency to engage in consultation about the handling of a request:

(a)with the requester, either to provide assistance to the requester or to refine the scope of a large, unclear or complex request;320

(b)to co-ordinate a response between various government agencies;

(c)to verify which agency a request should be transferred to;

(d)to co-ordinate a response with the relevant ministerial office or to inform the Minister prior to release of the information;321

(e)to seek the views of third parties who may be affected by the release of information about them, for example, personal, commercial or culturally sensitive information.

The legislation does not generally mandate consultation in any particular case; it is up to the agency to assess its desirability. One exception is that an agency must consider consulting the requester before refusing a request if this would assist the requester to make the request in a form that would remove the reason for refusal.322

Consultation must take place within the statutory time limit for responding to a request, unless a time extension is necessary. As discussed above, an extension of time may be for a reasonable period of time having regard to the circumstances, provided that notice is given to the requester of the time and reasons for the extension.

Consultation with other agencies

An agency receiving a request may need to consult with other agencies before making a decision in response to the request, for example where a number of agencies have collaborated on a project, or where a requester sends the same or a similar request to a number of different agencies. An agency may also need to consult to ascertain whether the information requested is more closely connected with the functions of another agency, with a view to transferring the request.

The State Services Commission has issued guidelines about consultation with other departments and with Ministers.323 The guidelines suggest that consultation is necessary as a courtesy, to make other departments aware of the request and the proposed action, and to check whether similar requests have been made to other departments so that a stance taken by one department is not undermined by another. The guidelines give examples of situations where consultation with other departments should normally occur.

Administrative protocols also require departments to consult with each other before releasing material contributed by others.324 In her research, Nicola White found that most requesters were largely unaware of the interaction that might take place within the bureaucracy in the course of answering a request, and that, without an awareness of these protocols, a requester is unlikely to take account of these steps in forming an expectation of the response time.325

We recommend that the administrative protocols which departments (and other agencies) observe in the processing of information requests be elevated to the status of guidance. This would assist both transparency of consultation processes and consistency of agency practices. This would require the State Services Commission guidance in this area to be reviewed and revised as necessary. We see this as a task for the oversight office discussed in chapter 13.

R57Guidance about inter-agency consultation processes should be reviewed and revised as necessary. This guidance should be an information resource for both agencies and requesters to promote understanding of the processing framework.

Consultation with affected third parties

Consultation is also an issue where the requested information relates to an individual (i.e. personal information) or a commercial enterprise (i.e. commercial information). In New Zealand, consultation with people who might be affected by the release of information is encouraged as best practice where practicable, but is not necessarily mandatory, although an agency may be subject to a contractual obligation to consult contractual partners before releasing certain information.

In addition, in some circumstances, the agency may have an administrative law duty to consult where the third party has an expectation that they will be consulted prior to release, or otherwise to satisfy the requirements of procedural fairness. A failure to consult may create a risk of judicial review, although the cost of bringing High Court proceedings is a significant limiting factor, as well as the lack of a suitable remedy where sensitive information has already been released.

In the absence of any contractual obligation or public duty, agencies may nevertheless choose as a discretionary matter to consult third parties prior to releasing information so that they can reach a proper decision on any particular withholding ground and on the balance of the public interest. It is worth noting that agencies cannot currently recover the costs they incur (mainly the expenditure of staff time) in consulting with third parties. This may be an indirect disincentive on agencies conducting third party consultation. Cost recovery and charging is an issue we discuss at the end of this chapter.

But the main question is whether there should be a statutory duty on agencies to consult with third parties who might be affected by a release. This would mean that individuals and businesses could have a say in decisions to release official information relating to them, before any such information is released.

Some commercial organisations responding to our survey were concerned that sensitive commercial information they were obliged to provide to regulators, government departments or local councils has been inappropriately released in response to official information requests. These organisations would like some form of mandatory prior consultation so that they have the opportunity to put their case for withholding sensitive information before it is released.

In the issues paper, we discussed two forms of consultation.326 One option is a consultation process where a third party would be given a period of time to make a submission supporting withholding the information requested on privacy or commercial grounds. The Australian Act contains this sort of consultation provision.327

A model along these lines was suggested to us in a submission and would require an agency, as part of its decision-making process, to solicit a third party “submission” on the question of release. The third party would have a limited time, say 10 working days, to provide a submission. The agency would then consult the requester who would have a similar time period to counter the arguments against release, with the agency being the final arbiter. If however the requester or third party objects to the agency’s decision, the decision could be referred to the Ombudsmen for an independent determination within a fixed time period, say 20 working days.

The other option we discussed in the issues paper is a more limited form of consultation where a third party would receive notification and be given a very short time to respond before the information is released. A form of this model is already used in New Zealand legislation such as the Public Transport Management Act 2008, where there is an obligation to notify the provider of information to the Transport Agency of its potential release under the OIA:328

22(6) If the Agency receives a request under the Official Information Act 1982 to release any [commercially sensitive] information described in subsection (5),–

(a)The Agency must make all reasonable efforts to notify immediately the person who provided the information to the regional council that a request to release the information has been received by the Agency; and

(b)The person must, within 10 working days after receiving the notice, advise the Agency whether that person believes that the information should be withheld under section 9(2)(b) of that Act and give reasons for that belief; and

(c)The Agency may release the information after the expiry of the period specified in paragraph (b) if, having complied with its obligations under this subsection and having regard to the person’s response (if any), the Agency cannot identify any reason that would permit it to refuse the request under that Act.

In the issues paper we expressed our preference for this option based on notification, over the fuller consultation option. This was on the basis that a fuller consultation process would be likely to create delays in the process and could increase the administrative burden on agencies.329 The majority of submitters (36) agreed that a mandatory requirement for full consultation with third parties should not be introduced into the legislation, with four submitters disagreeing.

On the notification option, submitters were fairly evenly divided between those who supported the proposal (18, including the Ombudsmen)330 and those who opposed it (20). Submissions expressing disagreement were concerned about the potential for delay, additional complication to the process, additional cost and administrative burden, and the difficulty of assessing “significant third party interests”. On the other hand, the Ombudsmen thought that this option seems a workable way of addressing legitimate third party interests while minimising the administrative burden and ensuring timely compliance.

We agree that it is good practice to consult with third parties where significant third party interests are raised. Consultation can be seen as supporting the protection of third party interests that are recognised by the withholding grounds, as it informs agencies about the various public and private interests involved to enable good decision-making about release or withholding. It should be encouraged. However, on balance, we do not support making full third party consultation mandatory.

We maintain our preference for a provision mandating a limited form of consultation (based on pre-release notification) where there are important third party interests at stake, although feedback from submitters has assisted us to refine the preferred option. We now recommend that pre-release notice to third parties331 should be required in certain specific circumstances.

A relevant legislative model is that contained in the Northern Territories Information Act which requires consultation in relation to the release of certain information about third parties. Under section 30, information is considered to be about a third party if disclosure might:

(b)be an interference with a person’s privacy;

(c)disclose information about an Aboriginal sacred site332 or Aboriginal tradition;333 or

(d)disclose information obtained by a public sector organisation from a business, commercial or financial undertaking that is:

(i)a trade secret; or

(ii)other information of a business, commercial or financial nature and the disclosure is likely to expose the undertaking unreasonably to disadvantage.

We consider that this model identifies the particular third party interests that should give rise to a notification obligation prior to release. Accordingly we recommend that where reasonably practicable agencies must notify a third party prior to release of requested third party information, where the withholding of the information would be justified on the grounds of:


(b)confidentiality, disclosure of a trade secret or unreasonable prejudice to commercial or competitive position (in relation to information obtained from a third party);334 or

(c)in the case of LGOIMA, to avoid serous offence to tikanga Māori or to avoid the disclosure of the location of wāhi tapu;335

but the agency considers the need to withhold to be outweighed by the public interest in disclosure.

This should be qualified by a rider that the requirement would only apply where prior notice is reasonably practicable.336 This would ensure that agencies are not unduly burdened by the requirement in situations where third parties are unknown or difficult to contact, or the requirement would otherwise be impractical to comply with.337

Notification should include details of the information proposed to be released. We are less certain about whether the third party should be notified of the identity of the requester. On the one hand, the identity of the requester may have a bearing on the strength of the relevant withholding ground i.e. where the requester is a commercial competitor. On the other hand, a requester’s purpose is generally irrelevant to the decision-making process under the official information legislation and it could be argued that the identity of the requester should be immaterial.

On balance however we think that the third party should usually be notified of the requester’s identity. We consider that where there is a need to withhold on each of the grounds we have identified (i.e. privacy grounds,338 commercial grounds or tikanga Māori), an affected third party would have a legitimate interest in being informed of the requester’s identity. Where information is released, this would allow the affected third party to take any available steps to reduce or manage the impact of the release.

The recommended provision would provide third parties with a brief opportunity to submit views on release to the decision-making agency and to take steps to protect their interests such as judicial review of the decision or injunctive relief. While decision-making power remains with the agency, on receiving a prompt third party submission against release the agency would have a duty to take account of that submission before releasing the information.

Our recommendations for third party consultation are based to some extent on the existing notification model used in the Public Transport Management Act 2008 (PTMA) and other New Zealand legislation. While the PTMA model and our recommended model are both forms of limited consultation based on notification, the two models are not identical. The PTMA model is concerned with commercial third party information in particular, while our recommended model also includes other specific categories of third party information. Under the PTMA, notification is required on receipt of a request whereas our recommendation is for mandatory notification to occur once the agency has made a provisional decision to release, so that the notification obligation is confined to those situations where it is most critical, in order to minimise any additional administrative burden on agencies. We also recommend a shorter notice period than the PTMA’s 10 working day notice period so as to reduce the potential for delay.

In the issues paper we asked how much notice should be given to a third party prior to release.339 13 submitters supported five working days, six submitters supported 10 working days and one submitter supported 15 working days. We recommend that notice be at least five working days.

In chapter 11 we propose that failure to give prior notice under this requirement would be grounds for a third party complaint to the Ombudsmen.

As noted above, we consider that consultation should be encouraged as a matter of best practice. The intent is that the introduction of a notification requirement would be in addition to agency consultation with third parties and not replace it. We recommend that guidance about the nature and objectives of third party consultation be developed, taking account of relevant case law.340

R58A new provision in the OIA and the LGOIMA should provide that where reasonably practicable, agencies must notify a third party prior to the release of requested third party information, where the withholding of the information would be justified on the grounds of:


(b)confidentiality, disclosure of a trade secret or unreasonable prejudice to commercial or competitive position (in relation to information obtained from a third party); or

(c)in the case of LGOIMA, tikanga Māori;

but the agency considers the need to withhold to be outweighed by the public interest in disclosure.

R59The period for pre-release notification to third parties should be a minimum of five working days.

R60Following pre-release notification to a third party, the agency should have a duty to take into account any submission in favour of withholding made within the five working day time period, before finalising a decision to release the requested third party information.

R61Subject to the new statutory pre-release notification requirement, consultation with affected third parties should continue to be encouraged as a matter of best practice. Guidance about third party consultation should be developed, covering both the recommended notification requirement, as well as the nature and objectives of third party consultation more generally.

See however OIA, ss 15(5), 15A(1)(b) and 18B; LGOIMA, ss 13(6), 14(1)(b) and 17B.

In chapter 9 at R40 we recommend strengthening the requirement for consultation between an agency and requester before a request can be refused on the ground that it would require “substantial collation and research.”

The particular issue of consultation between departments and ministerial offices is discussed in chapter 4.

OIA, s 18B; LGOIMA, s 17B.

State Services Commission Release of Official Information: Guidelines for Co-ordination (2002).

White, above n 291, at 145.

At 145–146.

Issues Paper at [10.38]–[10.50].

Freedom of Information Act 1982 (Cth), ss 27 and 27A (amended by the Freedom of Information Amendment (Reform) Act 2010). See also Government Information (Public Access) Act 2009 (NSW), s 54; Right to Information Act (Qld), s 37.

Public Transport Management Act 2008, ss 22 (6), (8). See also Agricultural Compounds and Veterinary Medicines Act 1997, s 12; Hazardous Substances and New Organisms Act 1996, s 57.

See also Law Commission Review of the Privacy Act 1993 (NZLC IP 17, 2010) at [11.60].

In addition, other submitters expressed tentative support, depending on the scope of the requirement.

The intent is that this mandatory requirement would apply in relation to the information of third parties other than public sector entities; however agencies would retain the discretion to consult more extensively than the notification provision would require, including with public sector entities.

Defined in s 4 as meaning “a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition.”

Defined in s 4 as meaning “the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.”

OIA, s 9(2)(b) and (ba); LGOIMA, s 7(2)(b) and (c). See also the additional commercial withholding ground recommended in chapter 5 at R17.

LGOIMA, s 7(2)(ba). This provision specifically applies in relation to certain applications and orders under the Resource Management Act 1991. See Taylor and Roth, above n 317, at 142. In chapter 7 at [7.69] we support the inclusion of protection for cultural matters in the OIA, subject to further work being undertaken on this issue by a working party.

See Freedom of Information Act 1982 (Cth), s 27(5), s 27A(4).

Consideration could be given to requiring notification to the Privacy Commissioner in a representative capacity in circumstances where it is otherwise impractical to notify individuals who may be affected by the release of personal information.

For example, the Privacy Act 1993 (information privacy principle 6) provides any person with a right of access to personal information held about them. A person can only exercise this right if they know who holds personal information about them.

Issues Paper at Q58.

See Wellington Airport Ltd v Air New Zealand Ltd [1993] 1 NZLR 671; Julian v Air New Zealand Limited [1994] 2 ERNZ 612, 637–638.