Chapter 10: Processing requests

In this chapter we examine the mechanics of the official information legislation that set the process for how requests are received, considered and dealt with by agencies. We are concerned here with the machinery provisions of the legislation that set out time limits for dealing with requests, allow the transfer of requests to another decision maker and the ability of agencies to charge for the cost of meeting requests. We also consider the issue of agency consultation with various parties as part of the decision-making process.

Some of the machinery provisions have already been discussed in chapter 9, such as the requirement for requests to be expressed with “due particularity” and grounds for refusing requests where they would require substantial collation or research or where they are frivolous or vexatious.

Time limits

As soon as reasonably practicable, and not later than 20 working days

On receiving a request for official information, an agency is obliged to make a decision as soon as reasonably practicable, with a maximum time limit of 20 working days.287  In reality, this time period is sometimes longer, for example where a request is transferred to another agency; where the time limit is extended for large requests or for consultation; or where the statutory time limit is breached or simply not observed by the agency. One concern is that agencies in practice work to the maximum 20 working day limit, rather than the primary obligation to respond to a request as soon as reasonably practicable.

In 1997, the Law Commission recommended that the 20 working day time limit be reviewed in 3 years’ time, with a view to reducing it to 15 working days.288  It was expected that developments in information technology would make it easier to retrieve information and reduce response times. However, information technology has proved to be a double-edged sword: while it is a useful tool for information retrieval, it has greatly increased the capacity for information creation, collection, storage, distribution and transformation, contributing to a significant official information workload for agencies that must search for relevant information and then assess whether it can be released. We discuss the challenges of information technology in chapter 1.

Steven Price’s research data showed that, from his sample, most OIA requests were processed within the maximum 20 working day timeframe, the average being just over 13 working days.289 About one in eight responses were outside the maximum permitted timeframe (without an extension), half of those being less than a week late. About three per cent of responses overall were more than two weeks late.290

Most of the officials Nicola White interviewed felt that the legislation sets a reasonable base deadline and she concluded that very often “as soon as reasonably practicable” is much the same as 20 working days in a government organisation of any size.291 Simple requests can usually be satisfied well within the 20 working day limit, but for anything complicated, the 20 working day limit becomes the real deadline and for hard requests the 20 working day standard will be too short and an extended time period will be required.292

White points out that part of the problem is that requesters are not aware of the process to be followed within an agency when responding to a request, and that greater transparency by agencies about their internal processes would help manage requesters’ perceptions of what is reasonable in terms of response times.

Suggestions were made by requesters and the media in response to our survey, that the 20 working day maximum limit should be reduced, possibly to five or 10 working days, while providing specific reasons for extensions. On the other hand some agencies responding to our survey found it difficult to meet the current timeframes, and suggested that longer timeframes for transfers and extensions of time be considered. All submitters who responded to this question in our issues paper favoured retaining the current 20 working day time limit.293

On balance we agree that it would be problematic to reduce the 20 working day maximum time limit. This would put agencies under further pressure. As there is no statutory maximum time limit for extensions, we think that it is preferable for agencies to endeavour to meet requests within the 20 working day timeframe wherever possible. We also think it would be unrealistic to reduce the maximum timeframe at a time where for reasons of economic necessity, the public service is required to shoulder its core responsibilities with reduced or no increased resources. Our recommendation therefore is to retain the current 20 working day maximum time limit, noting that it is a maximum, and that in all cases the test of “as soon as reasonably practicable” is the governing test.

Release of information within timeframe

The time limit for processing requests requires a decision to be made within 20 working days but does not expressly require information to be released within that timeframe. Nevertheless, the time limit tends to be interpreted by agencies and requesters as including the release of information. In his research, Steven Price found that, almost invariably, any information to be released is provided to the requester at the same time as the release decision.294

The advice of the Ombudsmen is that once an agency has reached a decision to make information available, it should endeavour to do so straight away.295 We note that undue delay in making information available in response to a request is deemed to be a refusal,296 about which the requester can complain to the Ombudsmen. However in the issues paper we wondered if the legislation should be tightened to prompt agencies to release information expeditiously.297

A large majority of submitters (including the Ombudsmen) favoured an express provision that information must be released as soon as reasonably practicable after a decision to release is made. Submitters commented that this would make it clear to requesters that the release of information is dealt with separately from the decision to release it, and it would protect against agencies misusing the current absence of a time limit for release and promote quicker responses. This would require an amendment to section 15 of the OIA and section 13 of the LGOIMA to require that the release of information should occur as soon as reasonably practicable after the decision to release is given to the requester.

Our concern is that this change could result in delays in processing requests as a de facto extension to the 20 working day time limit for decision-making. Our preference is to clarify that this time limit covers both the decision and release of information.298 This would accord with current agency practice. In circumstances where significant work is required to prepare information for release, consideration could be given to using the time extension provision, where applicable.

R50Section 15(1) of the OIA and section 13(1) of the LGOIMA should retain the standard 20-working day time limit for responding to requests. However, the sections should be amended so that it is explicit that this time limit covers both (i) the agency’s decision about release or withholding; and (ii) the release of any information in response to a request.

 

Acknowledgement of receipt

Another issue arises where requesters are unsure when the time limit is triggered and therefore when they may expect a decision. Steven Price’s research flagged situations where:299

(a)agencies lose or ignore requests;

(b)agencies seek clarification of a request and start the time limit from the point of clarification, rather than the time of receiving the original request.

In chapter 9, we deal with the problem of whether time starts to run from receipt of an overbroad request or a request that may require substantial collation or research, or on the subsequent receipt of a more targeted request. We recommend an appropriate clarification that time should not start to run until receipt of the refined request.300

In the issues paper we wondered whether there should be a requirement for agencies to acknowledge receipt of requests, with a failure to acknowledge receipt being grounds for complaint to the Ombudsmen.301 For example the Australian Act provides that an agency is to take all reasonable steps to enable the applicant to be notified that the request has been received, as soon as practicable but with a maximum time limit of 14 days.302

We think that acknowledging receipt of a request would be a useful step in the process for requesters, as this would provide confirmation of timeframes and a point of contact for further enquiries. This is important in the case of urgent requests. Acknowledgement of receipt by an agency to which a request is transferred would be useful to requesters for the same reasons.

The question is whether a statutory requirement to acknowledge receipt should be introduced, or whether it is more appropriate for this to be dealt with in guidance as a matter of best practice. A large majority of submitters supported best practice in preference to a statutory requirement. As we are wary of proposing mandatory measures that may increase the administrative burden on agencies, we recommend that the requirement to acknowledge receipt of official information requests be handled as a matter of best practice.

R51Acknowledging receipt of official information requests should be encouraged as best practice, rather than introducing a statutory requirement to do so.

 

Extension of time limits

Maximum extension period

We have considered whether there should be an outer time limit on the extension period. For example the Australian Act allows for the original 30 day maximum time limit to be extended by a further 30 days.303  The New South Wales Act allows for the original 21 day period to be extended by a further 10 days in certain circumstances.304

The New Zealand legislation provides that the extension be for a reasonable period of time, having regard to the circumstances. The requester must be notified of the period of the extension and the reasons for it, and a requester may complain to the Ombudsmen about the extension.305

A large majority of submitters (including the Ombudsmen) supported the current provision, with submitters valuing its flexibility as every request is different and “no one size fits all.” It was noted that a number of factors influence the time needed such as the nature and size of the request, the availability of staff, competing priorities, the complexity of the information and the extent of consultation required.

Further, it was noted that imposing a maximum extension period might result in more requests being refused on the grounds of substantial collation and research and the Ombudsmen confirmed that agencies currently comply with requests that might otherwise be refused if a maximum extension period applied. The ability to complain to the Ombudsmen about extension periods was seen by some submitters as a control on unreasonable extensions.

We are mindful of the risk that any stated statutory maximum limit may tend to become the default time limit and we prefer the flexibility of the current provision. This could be supported by guidance from the Ombudsmen about grounds for extension and what may be considered to be a reasonable or unreasonable period of extension.

Another change was suggested by a submission to the issues paper. This is to clarify that the extension provision can be used on more than one occasion in relation to the same request. While an extension period can be further extended at any time within the initial 20 working day period set by section 15 (or section 13 of the LGOIMA), there is no capacity for further extension outside that initial period.

We think that it is not unreasonable for an agency to make further use of the extension provision during the initial extension period, based on the test of whether the further extension period is reasonable in the circumstances; however agencies should be limited to just one such further extension, with the requester having the ability to complain to the Ombudsmen about the initial or further extension.

We expect that it would be more difficult for agencies to meet the test of whether a further extension is reasonable in the circumstances than for the initial extension, as there would need to be special reasons why the request could not be met under the initial extension. Use of further extensions would therefore be limited to unusual or difficult requests.

R52The maximum extension time in section 15A of the OIA and section 14 of the LGOIMA should continue to be flexible, without introducing a specific time limit.

R53Section 15A of the OIA and section 14 of the LGOIMA should be amended to allow a further extension of the time limit during the initial extension period, for a reasonable period having regard to the circumstances.

Extensions by agreement

Another question is whether the official information legislation should specifically allow the agency and requester to mutually agree on an extension of the time limit, such as the New South Wales Act allows.306 In his research, Steven Price found it not unusual for requesters to informally agree to relax deadlines.307

The large majority of submitters to this question in the issues paper (including the Ombudsmen) did not support a new provision to allow for extensions by agreement.308 One view was that extensions by agreement can already happen and so it is unnecessary to add a provision about it, although a different view was that an agency might breach the statutory time limits if the Acts do not expressly authorise extensions by agreement. Our view is that such agreements are probably not of legal binding effect; however they represent a form of consultation between agency and requester that can lead to sensible arrangements being reached.

A statutory provision may have certain benefits. It might encourage dialogue between agencies and requesters. It might also promote the object of availability by allowing agencies the time to provide fuller and more expansive responses than under the statutory timeframes. And it might help to relieve the administrative burden on agencies where requesters are amenable to their requests being handled under longer timeframes.

The difficulty is that the Acts currently allow an agency to unilaterally impose a time extension (based on reasonableness). This trumps any informal agreement reached by agency and requester. For the Acts to recognise extensions by agreement would require the creation of a new processing track to allow for requests where different time limits have been agreed. On balance however, we think that this could introduce additional complexity that is not justified by the potential benefits. An important objective is for the official information legislation to be user-friendly for the agencies who apply it. We therefore lean against overcomplicating the process by introducing alternative processing mechanisms except where clearly warranted. Our preference is for extensions by agreement to continue to be used as an informal practice outside the formal statutory requirements of the Acts.

We therefore do not recommend a new provision allowing for the extension of statutory timeframes by agreement with the requester.

R54No provision should be introduced allowing for the extension of statutory timeframes by agreement with the requester; however, extensions by agreement should be encouraged on an informal basis as part of the dialogue between agency and requester.

Complexity

Agencies dealing with requests can extend the maximum time limit, either where the request is for a large quantity of information or requires a large search and the original time limit would unreasonably interfere with the agency’s operations; or where the need for consultation means that the response cannot be made within the original timeframe.309 In its 1997 review, the Law Commission recommended that complexity should be an additional ground for extending the time limit, in the same way that complexity is a ground for extending the time limit for complying with a request for information from the Ombudsmen under section 29A(2)(c) of the OIA.310

A large majority of submitters to the issues paper who responded to the question of whether complexity should be an additional ground for extending the time limit were in favour (42 to two).311 The Ombudsmen’s submission queried whether there is a real need for a new provision, noting that expanding the extension grounds will not improve the perception of unreasonable delays in meeting official information requests, although the Ombudsmen are not opposed to complexity becoming a new ground for extending the time limit.

The extension provisions already deal with matters likely to raise complexity such as large requests and requests requiring consultation. There is also a refusal ground for requests requiring substantial collation and research. The potential gap currently is that there is no ability to extend for complexity in the assessment of withholding grounds and public interest factors in difficult cases. There are also requests where the information sought or potentially within the scope of the request is complex and difficult to analyse which can present a challenge in meeting the 20 working day timeframe.

We have some reservations about adding an additional complexity extension ground and foresee that this could unnecessarily increase the risk of delay in response times. Complexity is a subjective concept and there may be a risk that a new provision might be used indiscriminately or without proper justification if the request seems too hard. There may be greater reliance on a complexity provision by small agencies with limited resources or agencies with less experienced staff.

While we acknowledge that some requests throw up difficult questions and analysis, we think it is important for agencies to be incentivised to develop processes to anticipate and allow for those difficulties. Complex requests should be handled by officials with appropriate levels of seniority and expertise. This is also an area where additional guidance and case examples, which we recommend in this report, will be useful for agencies. We also expect that the recommended clarification and redrafting of withholding grounds will assist in dealing with complex requests.

Our preference is for priority to be given to clarifying the withholding grounds and providing greater guidance about them as a means of reducing the current levels of complexity experienced by agencies. The need for an additional extension ground could be reassessed in a future review of the legislation.

R55Complexity should not be added as a further ground for extending the 20-working day time limit in section 15A of the OIA and section 14 of the LGOIMA.

Urgent requests

The official information legislation allows a requester to ask that a request be treated as urgent, if the requester gives reasons for seeking the information urgently.312 Agencies may take into account the costs of meeting urgent requests in relation to the setting of charges.313 The Ombudsmen’s Guidelines address other issues raised by urgent requests.314 The Guidelines emphasise the desirability of communication between agency and requester to ensure that the spirit of the legislation is observed.

Agencies are under a duty to assist requesters to frame their request in accordance with section 12.315  In the case of urgent requests, that duty extends to assisting requesters to give their reasons for seeking the information urgently, as required by the legislation.316  To meet this responsibility, we think there is an onus on agencies to ensure that requesters are aware of the requirement to give reasons for urgency and to provide an opportunity to give reasons. As a procedural matter, this could be done when acknowledging receipt of a request.

We have considered whether there should be more detail in the legislation about how agencies should handle urgent requests. While all requests are to be dealt with as soon as reasonably practicable, the issue is whether urgent requests can or should be given priority by agencies, and what criteria should determine whether a request is to be handled on an urgent basis.

Most submitters preferred guidance about urgency rather than additional statutory provisions, although a few submitters (including the Ombudsmen) supported changes to the legislation to enhance clarity and reduce delay. The Ombudsmen proposed a new self-contained provision in the legislation dealing with urgency, which would confirm a requester’s right to seek urgency provided that reasons were given and clarify the legal obligations on agencies in relation to urgent requests and the applicable charging provisions. The Ombudsmen suggested that agencies be required to let requesters who have sought urgency know within 10 working days whether the request can be handled on an urgent basis.

We agree that it would be helpful to clarify the obligations on agencies in dealing with urgent requests. It should be best practice for agencies to have procedures in place that triage official information requests on the basis of their relative urgency and importance. In addition, while an agency should not be obliged to afford urgency to every request made on an urgent basis, there should be an obligation to consider whether a request can be granted urgency and to do so if it would be reasonably practicable in the circumstances. This reflects the current position that the requester’s need for urgency is one of several factors that must be taken into account by the agency handling the request.317

Other factors that an agency may need to take into account might include:

(a)the public importance of the request and the impact on the public of not meeting the request on an urgent basis;318

(b)the size, scope and complexity of the request and whether it can be met on an urgent basis;

(c)the level of consultation required; and

(d)the workload and resources of the agency and the number of other requests being dealt with.

A response to a request that is processed on an urgent basis should be notified promptly and, where the decision is in favour of release, the information should be provided to the requester as soon as reasonably practicable in the circumstances of the request.

R56A new provision in the OIA and LGOIMA should provide the following:

(a)a requester may make an urgent request provided that reasons for urgency are given;

(b)an agency must treat such a request as urgent if it would be reasonably practicable in the circumstances to do so; and

(c)a response to a request treated as urgent should be notified promptly and, where the decision is in favour of release, the information should be provided to the requester as soon as reasonably practicable in the circumstances.

OIA, s 15(1); LGOIMA, s 13(1).

Law Commission Review of the Official Information Act 1982 (NZLC R40, 1997) at [173] and [E26] (executive summary).

Steven Price The Official Information Act 1982: A Window on Government or Curtains Drawn? (New Zealand Centre for Public Law, Victoria University of Wellington, Wellington, 2005) at 22. Four agencies took longer than 20 working days on average to process requests.

By comparison, in the United Kingdom, Ministry of Justice statistics cited in Robert Hazell and Ben Worthy “Assessing the Performance of Freedom of Information” (2010) 27 Government Information Quarterly 352 at 355 showed roughly one in five requests delayed in central government beyond 20 days and one in 10 by other agencies.

Nicola White Free and Frank: Making the Official Information Act 1982 Work Better (Institute of Policy Studies, Wellington, 2007) at 284–285. White suggests a standard process for agency handling of requests involving 13 steps.

At 228–229, 283.

Issues Paper at Q48.

Price, above n 289, at [fn 62].

Office of the Ombudsmen “Official Information Decisions Must Be Made ‘As Soon As Reasonably Practicable’ ” (December 2003) 9 OQR 4.

OIA, s 28(5); LGOIMA, s 27(5).

Issues Paper at Q49.

In chapter 11 we recommend that failing to decide or release within the time limit should be grounds for making a complaint to the Ombudsmen.

Price, above n 289, at 11.

Chapter 9 at R42.

Issues Paper at [10.14].

Freedom of Information Act 1982 (Cth), s 15(5). One reason for the receipt acknowledgment in the Australian context is that there are time limits on requesters’ review and appeal rights. See also Government Information (Public Access) Act 2009 (NSW), s 51.

Freedom of Information Act 1982 (Cth), s 15(6)(a).

Government Information (Public Access) Act 2009 (NSW), s 57.

OIA, s 15A(4), s 28(2); LGOIMA, s 14(4), s 27(2).

Government Information (Public Access) Act 2009 (NSW), s 57(4).

Price, above n 289, at [fn 62].

Issues Paper at Q52.

Official Information Act 1982, s 15A; LGOIMA s 12.

Law Commission, above n 288, at [183].

Issues Paper at Q51.

OIA, s 12(3); LGOIMA, s 10(3).

OIA, s 15(2); LGOIMA, s 13(3).

Office of the Ombudsmen Practice Guidelines – Official Information (Wellington, 2002) at Part C, ch 1.

LGOIMA, s 10.

See Law Commission, above n 288, at [83] recommending that the duty to provide assistance to requesters should include an explicit duty to assist requesters to specify the reasons for urgency.

Graham Taylor and Paul Roth Access to Information (LexisNexis, Wellington, 2011) at 46. See also the Ombudsmen’s checklist for public sector agencies considering urgent requests: Office of the Ombudsmen, above n 314.

For examples of important interests that may justify urgency, see United States Justice Department Freedom of Information Regulations: Proposed Rule (21 March 2011) 76(54) Federal Register 15236, which allows for expedited processing in cases where there is an imminent threat to life or physical safety; a need to inform the public (in the case of media requests); the loss of substantial due process rights; or a matter of widespread and exceptional media interest raising issues about government integrity.