Chapter 10: Processing requests

Release of information in electronic form

Electronic format versus hard copy

The OIA provides that if “the information requested by any person is comprised in a document” it can be made available in a number of ways which include providing the person with a copy, giving a summary or giving an opportunity to inspect.349 Generally the agency should provide the information in the way preferred by the person. A number of issues arise.

First some respondents to our survey and issues paper350 thought there should be explicit acknowledgement in the Act that documents can be made available in electronic form. That would, of course, save the agency printing costs, although it may shift those costs to the recipient. Some agencies suggested that there should be a statutory presumption or default position that information be released in electronic form unless it is impractical or the requester specifies otherwise. Another went so far as to suggest: “Don’t give the option to the requester of receiving the material in hard copy.”

It is clear that the section already permits release in electronic form. To do so is “providing the person with a copy of the document,”351 and “document” is defined in section 2 of each Act as including:

Any information recorded or stored by means of any tape recorder, computer, or other device; and any material subsequently derived from information so recorded or stored.

Nevertheless, the Ombudsmen have suggested that it would be clearer if electronic release was expressly mentioned in the section. We have no difficulty with an update of the section to provide for electronic release. For example, providing the person with a copy of the document352 could be expanded to provide that this may be either by providing a hard copy or an electronic version of the document.

We are sure that many if not most people would be satisfied with an electronic version of the official information they are seeking to access. But we do not recommend a mandatory requirement that the requester must be content with an electronic version. The clear philosophy of the section is that where possible the requester should be able to have the information in the form he or she prefers.

We acknowledge that there needs to be a balance between the requester’s right to receive the requested information in a form that the requester can access, with the public interest in providing official information to requesters in the most efficient manner and at the least cost to agencies. This imperative has strengthened at a time of budget restrictions and cut-backs.

The legislation currently strikes the balance by allowing an agency to disregard the requester’s preferred form of access to the information if it would “impair efficient administration”.353  It might also be legitimate in some circumstances for the agency to charge for the provision of hard copy information if its production incurs significant cost. This is an issue that should be addressed in the review of charging policy that we recommend below.

The United Kingdom Freedom of Information Act 2000 requires an agency to give effect to a requester’s preference “so far as reasonably practicable.”354 In determining whether a particular means is reasonably practicable, an agency may have regard to all the circumstances, including cost.355 Where an agency determines that it is not reasonably practicable to comply with the requester’s preference, the agency must notify the requester of its reasons.356

It is worth asking whether this approach would provide more flexibility for agencies. It sets a lower threshold at which agencies must give effect to requester preference than the New Zealand threshold of impairing efficient administration; and the express reference to cost may be helpful to agencies in order to recover any additional costs of meeting a requester’s preference. While the Ombudsmen agree that this may be a suitable approach to the issue of electronic versus hard copy, they have concerns that the UK threshold may be too low if a requester prefers one of the other forms that the legislation provides for, such as providing a summary or an oral briefing.

One of the strong messages we have heard from agencies in this review is the burden of balancing their obligations to meet official information requests with the rest of their workload and with shrinking resources. In our view, the current threshold that requires impairment to efficient administration does not allow agencies sufficient opportunity to reduce their administrative burden.

Although they may be able to recover some costs through charging, the charging regime is significantly out of date and incomplete, as discussed later in this chapter. An adjustment to the balance between requester and agency preference as to the form of release could assist agencies to perform their official information role more efficiently; however it remains important to bear in mind the overall objectives and purpose of the legislation to make official information more freely available.

On balance we recommend a more flexible approach by requiring an agency to observe requester preference so long as this is reasonable in the circumstances. The intent is that this approach would not simply look at what is reasonably practicable for the agency, but would require an assessment, where the agency wishes to depart from the stated requester preference, of what is reasonable, taking into account the circumstances of both the agency and the requester. Where a requester objects to a departure from the stated preference, the requester should have the option of making a complaint to the Ombudsmen.

The second issue is, in a sense, the converse of the first. A requester may prefer to receive an electronic copy, but the agency may want to supply only a hard copy, possibly to control reuse of the material or to ensure recognition of its authorship. Another option would be to release the document in a format that is locked from editing. This may be problematic where a requester seeks access to the metadata associated with certain information.357 For example, in the 2009 scandal over the expenses of UK Members of Parliament, official releases of the details were in PDF format, making it difficult to analyse the information.358

We discuss the issue of metadata below. However we note here that where the scope of a request includes metadata, the information should be provided in a way that allows access to the metadata unless relevant withholding grounds apply to protect it. We discuss further below some of the issues associated with re-use and options available to agencies such as the use of creative commons licences and the imposition of conditions.

R64Section 16(2) of the OIA and section 15(2) of the LGOIMA should continue to require the release of information in the form preferred by the requester, subject however to a new condition that the requester’s preference is reasonable in the circumstances, in place of the condition in section 16(2)(a) of the OIA and section 15(2)(a) of the LGOIMA that the requester’s preference not “impair efficient administration”.

R65Section 16 of the OIA and section 15 of the LGOIMA should be updated to include electronic release of information.

 

Metadata and backup systems

In relation to information held in electronic form, there are issues about whether (a) agencies should be required to include associated information such as metadata in responses to information requests, and (b) whether the obligation to search for requested information extends to information in backup systems.

Metadata359 falls under the statutory definition of “document” as “any label, marking, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means.”360 Requests for “all documents” on a certain topic would therefore include metadata within their scope. Some of the newer Australian freedom of information statutes include presumptions against having to provide metadata, or search for information that is stored in backup systems.

The Queensland Act provides that “An access application for a document is taken not to include an application for access to metadata about the document unless the access application expressly states that it does.”361 If an access application does expressly state that access to metadata is being sought, access to the metadata does not need to be provided unless it is reasonably practicable.362

The Queensland Act also provides that an access application for a document, however expressed, does not require an agency to search for the document in a backup system (although the agency may conduct such a search if it considers it appropriate).363 The New South Wales364 and Tasmanian365 Acts also deal with searching for documents in backup systems.

In addition, the Tasmanian Act provides that, if information is stored in an electronic form, an agency may refuse an access application if the information “cannot be produced using the normal computer hardware and software and technical expertise of the public authority”.366 The intention behind such provisions is to deal with the issue that information deleted from an agency’s main records systems may survive on the back-up tapes of servers for disaster recovery purposes.367

At the same time there are obligations in overseas jurisdictions for agencies to adopt systems which ensure data is easily accessible.368 In New Zealand, the Public Records Act 2005 requires every public office to maintain all public records in its control in an accessible form until disposal is authorised by the Public Records Act or another Act.369 Similarly, every local authority must maintain all protected records in its control, in an accessible form, until disposal is authorised.370

In the issues paper we asked whether the Acts should make specific provision to limit the availability of metadata, information in backup systems and information not accessible without specialist expertise.371 Comments in favour of these provisions noted issues of cost, resourcing and the administrative reasonableness of searches. Comments against provisions of this kind suggested that there is no reason to exclude this type of information which should be available for the public to request.

The Ombudsmen emphasised that what is important is whether this type of information falls within the scope of the request, and that there may be grounds for refusal of the request under section 18(f) (substantial collation and research), or for the costs of meeting the request to be passed on to the requester.

We agree that the scope of searchable material should depend on the scope of the request and what is reasonable in the circumstances. We think that this is a more flexible approach than applying or rebutting a statutory presumption. We agree that charges and the section 18 grounds are appropriate mechanisms to control searches that impose an unreasonable burden on agencies.

Agencies may also need guidance on minimising the perceived administrative burden of requests that include metadata and, to improve efficiency, may need to develop or supplement information management processes and policies that take account of issues such as releasing or withholding metadata.372

We are therefore not persuaded that there is a need to create a statutory presumption about metadata. While a presumption may have the benefit of providing certainty to agencies, a presumption that a request does not include metadata unless expressly stated may effectively result in many more requesters expressly including metadata in their requests so as not to unduly limit their scope.

Our preference is for metadata to continue to be considered in relation to the scope of the request and the “due particularity” requirement. This is consistent with the case by case approach that underpins the legislation. Requests for “all documents” may need discussion with the requester as to whether the information sought includes metadata and the form in which the requester seeks release of the information.

We also think that a presumption that a request does not include metadata does not send the right message to agencies who are obliged under the Public Records Act 2005 to:373

[C]reate full and accurate records of their activities in accordance with normal, prudent business practice, and ensure that those records are captured into systems that will maintain them in an accessible form for so long as they are required. These systems include recordkeeping metadata.

We discuss the relationship between the official information legislation and the Public Records Act in chapter 15.

A statutory presumption could also be seen as inconsistent with the Cabinet direction to agencies to release useful high value public data for purposes of reuse.374 The growing emphasis on making data available for reuse as a public resource means that metadata may be an integral part of particular information releases.

We are not persuaded that a statutory presumption against release is required in relation to information in backup systems or information that is not recoverable without specialist expertise. The Public Records Act requirements should provide some control against information being stored in inaccessible formats, at least to the extent that the information is contained in a “public record”. If public records are held in inaccessible forms, there is a strong argument that agencies should bear the cost of retrieving those records when they are requested.

But we agree that where information is culled by an agency in accordance with an appropriate information management strategy, that agency should not be put to the additional effort and cost of recalling or reconstituting that information should it be requested.375

In our view, the grounds for refusal in section 18 of the OIA and section 17 of the LGOIMA are the appropriate mechanism for dealing with this issue. However we think an amendment would be desirable to provide further clarity as to an agencies search obligations. We think that either:

(a)section 18(e) should be amended so that an agency may refuse a request where the information requested does not exist or cannot be found “after taking reasonable steps to locate the information”; or

(b)section 18(f) should be amended to extend the concept of “substantial collation and research” to include the concept of “extensive search” so that an agency may refuse a request where a search for the information would involve an unreasonable diversion of resources from the agency’s functions.

On balance we prefer an amendment to section 18(e). The amended provision could be supported by guidance to indicate what may be reasonable steps to search for the requested information in any particular circumstances, and confirm that searches of backup systems are not required where the information has been disposed of in accordance with an authorised document disposal policy. Searches of backup systems may however be required where information has been disposed of without adequate authorisation or justification.

General guidance that addresses the interaction of the information management requirements of the Public Records Act and the official information legislation would also be useful.376 We see this guidance as a task for the oversight office discussed in chapter 13.

 

R66Requests for metadata and information in backup systems should continue to be dealt with on a case by case basis, and therefore no legislative change is required.

R67Section 18(e) of the OIA and section 17(e) of the LGOIMA should be amended to state that an agency may refuse a request where the information requested does not exist or cannot be found “after taking reasonable steps to locate the information”.

R68Guidance should be developed that addresses the interaction of the information management requirements of the Public Records Act 2005 and the official information legislation, including how agencies should deal with requests for metadata and information that is difficult or costly to access.

Re-use

A requester supplied with information under the OIA is not automatically entitled to publish that information to the world. For one thing, publication might breach a law. It might, for example, be defamatory, breach another person’s privacy or breach a court suppression order; it might be in breach of copyright or other intellectual property rights. In such a case section 48 of the OIA and section 41 of LGOIMA (which protect an agency from liability for good faith releases) do not protect the recipient. This point is not as well understood as it should be. Some people appear to think that once information has been released it is, as it were, “public property”.

In this section we discuss three different sets of issues that arise in relation to the re-use of released information: intellectual property; legal restrictions; and agency-imposed conditions on the use or re-use of released information.

Intellectual property issues and NZGOAL

The New Zealand Government Open Access and Licensing framework (NZGOAL) promotes open licensing of copyright material held by state agencies to facilitate re-use.377  This initiative deals with the intellectual property issues like copyright in information that is released to requesters or more generally to the public that might limit the use or re-use of that material:378

 

In essence, NZGOAL:

(a)sets out a series of open licensing and open access principles, for copyright works and non-copyright material respectively;

(b)advocates the use of:

(i)Creative Commons licences for those State Services agencies’ copyright works which are appropriate for release and re-use; and

(ii)clear “no known rights” statements for non-copyright material released for re-use; and

(c)sets out a review and release process to guide agencies through the review of works and other material they consider ought to be released for re-use.

There is guidance available for agencies on the NZGOAL website that is administered by Creative Commons.379 We think that it would be useful for agencies for guidance to be developed that discusses the role of NZGOAL in relation to releases of official information under the OIA and LGOIMA. A submitter to our issues paper thought that this is an area where further work should be carried out to address the interaction between freedom of information and government release reuse policy so that the issue can be considered from a whole-of government information policy perspective. We agree. One option would be for the oversight body to co-ordinate with the policy work programme on re-use of government information.380

One of the issues that could be considered as part of this work is whether requesters should be able to request any particular creative commons licence for information that is released in response to a request. For example, in the United Kingdom, the Protection of Freedoms Bill specifies that requests for datasets to be released in electronic form must be met by ensuring that the data is released in a form that is capable of re-use, and that requesters may seek licensing for re-use.381

The Re-use of Public Sector Information Regulations 2005 (UK) allows for applications to be made requesting permission to re-use a document held by a public sector body.382 The request is to specify a document and the purpose for which it is to be re-used.383 Requests can be made in respect of documents that have been identified by the public sector body as being available for re-use, documents that have been provided to the applicant, or other accessible documents.384 There are certain exceptions such as for documents held by public service broadcasters, educational and research institutions and cultural establishments including museums, libraries and archives.385 The regulations allow for the imposition of both conditions386 and charges.387

R69Further work should be undertaken to address the interaction between the official information legislation and the New Zealand Government Open Access Licensing framework, with a view to producing guidance for agencies.

Other legal restrictions

The NZGOAL initiative will not deal with other legal prohibitions such as defamation, privacy, contempt of court, and so on. Recipients of information under the official information legislation who republish the information will remain liable under the law for any breach. We have wondered whether, when information is released by agencies, it should not be accompanied by a warning to this effect as a matter of course.

Our preference however is for readily available guidance to be developed for requesters that would cover common legal prohibitions and restrictions, so that there is greater awareness of the legal position. Agencies could then bring this to the attention of requesters in appropriate cases or include a link to the guidance in their response. We see the task of producing this guidance as one for the oversight office we discuss in chapter 13.

R70Guidance for requesters should be developed to explain common legal restrictions that may apply to the use and re-use of released information, including defamation, copyright, privacy and contempt of court.

Conditions imposed by agency

Another form of restriction on re-use is where an agency releases requested information subject to express conditions on the use and re-use of that information. For example, there may be specific circumstances in which the public interest favours the release of certain information for a certain purpose (for example, research purposes) or to a certain person (for example a trusted researcher who is known to the agency). It is implicit in the Act that the agency releasing information may place conditions on its use and re-use. While the OIA is not express on this point, it is recognised obliquely by enabling an appeal to the Ombudsmen against the imposition of any such conditions.388

An example might be the release of sensitive defence information to a trusted researcher. In such a case there might be an agreement between agency and requester that the information will be released only on condition that it be kept confidential, or that it not be used without reference to a contextual statement provided by the agency. In other words the device is properly used to enable release of information where, without such conditions, there would be a good reason for withholding. Another example is the use of conditions to enable an urgent request to be met prior to the scheduled release of the information.389 From time to time the Ombudsmen have commented about the use of conditions.390

In the issues paper we asked whether the official information legislation needs to make any further provision for agencies to place conditions on the re-use of information, or whether the current provisions are sufficient.391 Our initial view was that it might be best to leave the matter to operate by agreement as it currently does. More than half the submitters (19) were against any further provisions while 14 submitters supported provisions about conditions, including the Ombudsmen, who favoured an express provision encapsulating current practice, and signalling to agencies that this is a potential tool for managing information releases.

Comments in support of new provisions included views that the current provisions are not sufficiently clear; that greater clarity would be helpful; and that agencies may be more willing to release if the legislation is clearer that conditions can be imposed. Comments against new provisions included concerns that they may add cost and extend timeframes.

A range of other comments on this issue suggested that this is an area that is not well understood and that further guidance and education may be needed. One submitter noted that it is unclear in what circumstances an agency can require a requester to keep information confidential. Another view expressed was that conditions on re-use should be kept to a minimum and should not clog freedom of information by restricting re-use, although it was acknowledged that the ability to impose conditions may be useful where information may be shared for some purposes but not others. Some submitters noted the difficulty of enforcing conditions where they were breached.

Functions of a new provision

We see the use of conditions as having the following dual functions:

(a)The first function is “increased availability”, by potentially allowing information to be released on a conditional basis that would not otherwise be released, due to a good reason to withhold, or an administrative reason for refusal.

(b)The second function is “re-use control”, by allowing information that must be released (where the reason to withhold is insufficiently strong to prevail) to be released in such a way that the interests underlying the relevant withholding grounds are better protected in relation to re-use of the information. In other words, it could provide a middle path between unconditional release and withholding. This issue is becoming acute in an era when the internet and social media are pervasive in many people’s lives, making it much easier for released information to be shared publicly in ways that can have a significant impact on the subjects of that information.

 
Issues to consider

In our assessment, the desirability of codifying the use of conditions on release is a finely balanced one. There are potential advantages; however, formulating a new provision is not without its difficulties. Firstly, while a new provision has the potential to increase the availability of information, there is a counterbalancing concern that it has the potential to fetter requester entitlements to information.

Secondly, there may be a conceptual difficulty in introducing a conditions provision to a legislative framework that is otherwise not concerned with requester purpose.392

Thirdly, the issue of enforcement of conditions is a difficult one. Generally, we do not think that the legislation should include complex enforcement mechanisms; rather we believe that agencies will need to weigh up the risk that conditions may not be observed when reaching a release decision. The negative impact of a breach of conditions on on-going relationships (and on-going discretionary access) is likely to provide an incentive for compliance.393

The release of third party information raises particular considerations however. It may not be desirable for such information to be released subject to conditions that are not enforceable. That could undermine the careful legislative balance that has been constructed between the protection of a particular interest like privacy, on the one hand, and the presumption of availability, on the other hand.

Finally, it may be difficult to create a conditions framework that is not overly complicated. Any new provision must be user-friendly for the agencies that administer and work with the legislation.

Conclusion

On balance, we conclude that further policy work and consultation with agencies would be needed to design an optimal approach that addresses the issues outlined above and integrates the use of conditions into the established legislative framework. A first step would be for guidance to be developed in greater depth as to current good practice, including examples for agencies. This exercise may assist in working through some of the issues involved in developing a possible legislative provision.

In the meantime, available controls in the general law will continue to provide some check on the risk of misuse of released information, such as the law of privacy and confidentiality, and defamation. The Law Commission is also giving consideration to the adequacy of legal remedies for free speech abuses such as cyber-bullying, harassment, harm to reputation and invasions of privacy in its new media project.394

OIA, s 16; LGOIMA, s 15.

Issues Paper at Q62, Q64.

OIA, s 16(1)(b); LGOIMA, s 15(1)(b).

OIA, s 16(1)(b); LGOIMA, s 15(1)(b).

OIA, s 16(2)(a); LGOIMA, s 15(2)(a).

Freedom of Information Act 2000 (UK), s 11(1).

Section 11(2).

Section 11(3).

See White, above n 291, at 263, discussing releasing information in electronic form.

The issue was discussed by Simon Morton with technology correspondent Bill Thompson on “This Way Up” (27 June 2009) <www.radionz.co.nz>. See also Mark Harris “Properly Public: It’s Our Information” (10 February 2012) <http://publicaddress.net>.

Metadata is information about a document, such as who the author is, when it was written and a short summary of what it contains: <www.techterms.com>.

OIA, s 2(1); LGOIMA, s 2(1).

Right to Information Act 2009 (Qld), s 28(1). “Metadata” is defined in s 28(3) as including “information about the document’s content, author, publication data and physical location”.

Section 28(2).

Right to Information Act 2009 (Qld), s 29.

Government Information (Public Access) Act 2009 (NSW), s 53(4).

Right to Information Act 2009 (Tas), s 10(2).

Section 10(1)(a).

NSW Ombudsman Opening Up Government: Review of the Freedom of Information Act 1989 (February 2009) at [4.7.6].

See Office of the Information Commissioner of Canada “Resolution of Canada’s Access to Information and Privacy Commissioners” (1 September 2010). The resolutions include the following: “Governments should build access mechanisms into the design and implementation stages of all new programmes and services to facilitate and enhance proactive disclosure of information”.

Public Records Act 2005, s 17(2).

Section 17(3).

Issues Paper at Q63.

This is related to the issue of the adequacy of agency information technology systems to efficiently access and release information, whether in response to requests or as part of a proactive disclosure programme, as we discuss in chapter 12.

Archives New Zealand “Electronic Recordkeeping Metadata Standard” (2008), section 1.

Cabinet Minute of Decision (8 August 2011) CAB Min (11) 29/12, available at <www.ict.govt.nz>. See further chapter 12.

See NSW Ombudsman, above n 367. Information that is due for destruction however should not be disposed of until any relevant official information requests have been dealt with: see United Kingdom “Lord Chancellor’s Code of Practice on the management of records issued under section 46 of the Freedom of Information Act 2000” (16 July 2009).

See for example Lord Chancellor, above n 375.

There is further discussion of NZGOAL in chapter 12.

State Services Commission New Zealand Government Open Access and Licensing framework (NZGOAL) (August 2010) at [4].

Creative Commons Aotearoa New Zealand NZGOAL <http://nzgoal.info>.

See further chapters 12 and 13.

Protection of Freedoms Bill (UK), cl 100. The Bill received the Royal Assent on 1 May 2012.

The Regulations implement Directive 2003/98/EC of the European Parliament and the Council on the Re-use of Public Sector Information (O.J. No. L 345).

Regulation 6.

Regulation 5(2).

Regulation 5(3).

Regulation 12.

Regulation 15.

OIA, s 28(1)(c); LGOIMA, s 27(1)(c).

Office of the Ombudsmen “Release Subject to Conditions Resolves Urgent OIA Request” (March 2005) 11 OQR 1.

See Office of the Ombudsmen “Advising the Requester of the Agency’s Decision” (May 2008) 14 OQR 1; “Conditions on Use of Official Information” (March 2003) 9(1) OQR 1; “Identity Conditional on Release of Official Information” (December 1999) 5 OQR 4.

Issues Paper at Q65.

See chapter 9.

See Taylor and Roth, above n 317, at 64.

Law Commission The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC IP 27, 2011).