Chapter 11: Complaints and remedies

Other alignments

We also propose some other minor alignments to introduce greater consistency within the OIA; and between the OIA and the Privacy Act.

Aligning reasons for refusal

We considered whether the reasons to refuse requests in Part 4, for body corporates’ personal information, and in Part 2, for official information, should be more closely aligned. Reasons for refusing a Part 2 request are listed in section 18 of the OIA and section 17 of LGOIMA. The following reasons to refuse do not apply to Part 4 requests:488

  • Section 18(c)(i) and (ii): requests may be refused where making the information available would be contrary to an enactment or would constitute contempt of Court or of the House of Representatives;
  • Section 18(d): requests may be refused where the information requested is or will soon be publicly available;
  • Section 18(e): requests may be refused where the document alleged to contain the information does not exist or cannot be found; and
  • Section 18(f): requests may be refused where the information requested cannot be made available without substantial collation or research.

Arguably, sections 18(c)(i) and (ii) are already covered by section 52 of the OIA, currently titled “Savings”. Section 52(1)489 provides that nothing in the OIA authorises making information available where that would constitute contempt of court or of the House of Representatives. Section 52(3)(a)490 provides that nothing in the OIA derogates from any provision contained in any other enactment which authorises or requires official information to be made available. However, in their current location in the savings provision these act as an interpretive aid to the Act, rather than as grounds for refusal of a particular request. We believe they would benefit from being placed in section 27, alongside the other reasons for refusing a Part 4 request.

The Law Commission considered the final three grounds (sections 18(d), (e) and (f)) in its 1997 review of the OIA.491 The Commission concluded that sections 18(e) and (f) are already covered by the requirement in Part 4 that personal information be “readily retrievable”. It also concluded that extending section 18(d) to personal information might prevent someone from proposing corrections to the information at the critical time – before the information is made public. The right to seek to make corrections to personal information is an important feature of Part 4 which distinguishes it from Part 2.492 We remain of the view that the three reasons for refusal in sections 18(d), (e) and (f) should not apply to requests for a body corporate’s personal information under the official information legislation.

A fuller exercise into the differences between Part 2 and Part 3/4 may be required at some point in the future.493 While we recommend in this report that some of those existing differences should be minimised, we are conscious of the need to maintain the distinctive character of the different Parts where there is a principled basis to do so, and believe that any future review should take this into account.

R73Section 27(1) of the OIA and section 26(1) of the LGOIMA should include as a reason for refusal in relation to a request for information under Part 4, that making the information available would be contrary to an enactment or would constitute contempt of court or of the House of Representatives.

Aligning Privacy Act reasons for refusal

The Privacy Act 1993 deals with requests to any agency, including a public body, for an individual’s personal information. It contains two reasons for refusal which do not apply to body corporates’ requests for personal information under the OIA:

  • The Privacy Act section 29(1)(g) provides that in the case of a request made to Radio New Zealand Limited or Television New Zealand, it is a reason for refusal if releasing the information would be likely to reveal the source of a news media journalist and either the information is subject to an obligation of confidence, or releasing the information would prejudice the supply of similar information from the same source;
  • The Privacy Act section 29(1)(h) provides that where the information is contained in material placed in any library or museum or archive, it is a reason for refusal if releasing it would breach a condition under which it was placed there.

The Law Commission recently recommended in its review of the Privacy Act 1993, that section 29(1)(g) be deleted from that Act (in light of the recommendation that those two agencies should not be subject to the access and correction principles under the Privacy Act).494 If this provision is deleted from the Privacy Act then the desired consistency with the OIA will be achieved. If not, we think that a similar provision should apply to body corporates’ requests for their personal information.

It is possible that the omission of similar grounds in the OIA and LGOIMA is an oversight. We cannot discern any justifiable reasons not to apply these two withholding grounds to body corporates’ requests, and we think they should be incorporated into section 27(1) of the OIA (reasons for refusal of requests for personal information).

R74The reasons for refusing a request for personal information under section 27 of the OIA and section 26 of the LGOIMA and under the Privacy Act 1993 should be kept in alignment as far as possible.

OIA, s 27; LGOIMA, s 26.

LGOIMA, s 44(1).

LGOIMA, s 44(2).

Law Commission Review of the Official Information Act 1982 (NZLC R40, 1997) at ch 8.

OIA, s 26; LGOIMA, s 25.

For example, not all the section 6 and 9 withholding grounds apply to Part 4 requests: OIA, s 27(1).

Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 (NZLC R123, 2011) at R38 and R39.