Chapter 11: Complaints and remedies

Proposals for alignment and simplification

The OIA operates on the basis of the underlying distinction discussed above, and we think this is a distinction that continues to be important. There is an inherent difference between enabling people to access their personal information or information about administrative action that is unique to them, and enabling New Zealand citizens to access official information in order to hold government to account in a general sense. But the continued treatment under the Ombudsmen Act of complaints arising from sections 22, 23 and 24 causes two adverse consequences for requesters.


First, complainants under sections 22, 23 and 24 are disadvantaged. The following quote from the Danks Committee itself identifies the underlying cause of the disadvantage:476

[U]nder our proposals the finding of an Ombudsman will have a somewhat higher status [under the OIA] than in the Ombudsmen Act itself, where his conclusions are merely recommendatory. [Under the OIA] his recommendations would be binding unless overridden by [veto].

So, if a Part 2 complainant approaches the Ombudsmen, he or she will have the benefit of the stronger powers accorded to that Office in its OIA jurisdiction: effectively, a power of final determination. In contrast, complainants under sections 22, 23 or 24 only have recourse to the Ombudsmen’s recommendatory powers. The agency holding the information could in principle refuse to release the information without the need to seek an Order in Council veto or (in the case of the LGOIMA) to exercise the local authority veto. There is none of the political risk associated with breaching a public duty to release the information, since no such duty arises in the Ombudsmen Act jurisdiction.

The Danks Committee envisaged requesters in this position approaching the High Court to enforce their right of access. But going to court is certainly a more expensive and slower process. We think it unlikely that this will be a real option for many requesters. This puts them at a real disadvantage compared to Part 2 requesters. Paradoxically, the Danks Committee’s desire to better uphold and protect the rights contained within sections 22, 23 and 24 in fact leads to a remedial imbalance that disadvantages these requesters.477 It leaves those who do not have the resources to approach the court in a vulnerable position.

A second adverse consequence of handling these complaints under the Ombudsmen Act is that it creates a complex inter-relationship between the OIA and the Ombudsmen Act that may be difficult for requesters to understand. The complaint is made under the OIA, so some requesters might struggle to understand why their complaint has been dealt with under a different Act. It is also difficult to determine what legal rules apply to the resolution of the complaint, because it is necessary to cross-refer between many different provisions of the two Acts. At times we found it difficult to understand these cross-references, so requesters are likely to as well. This does not lend itself to greater citizen participation in and oversight of administrative decision-making.

Proposed new approach

We think both these problems could be addressed relatively simply, by bringing the treatment of complaints under sections 22, 23 and 24 within the Ombudsmen’s OIA jurisdiction as set out in Part 2. The existing process for Part 2 complaints would be applied to those sections, with one exception: where an Ombudsman makes a recommendation to release information requested under those sections, it would not be exposed to the veto power in section 32(1).

This effectively means the Ombudsmen would make binding recommendations about complaints under sections 22 to 24. We note the concerns the Danks Committee expressed about this.478 But we think the advantages to be gained in terms of simplicity from treating the two kinds of OIA complaint in a consistent fashion, procedurally speaking, is justified in this context. In this regard we return to the importance of sections 22 to 24 in upholding people’s legal rights to access information uniquely concerning them; legal rights that were emphasised by the Danks Committee itself. The Order in Council veto is a heavy and, we think, unnecessary weapon to use against these rights. Where a veto of sorts is thought absolutely necessary, section 31 will still be available.479 That section allows the Prime Minister or Attorney-General (or, under the LGOIMA, only the Attorney-General) to prevent the release of the information in advance of the Ombudsmen making any binding determination, in the small number of circumstances where the requirements of that section are fulfilled.480

Later in this chapter we recommend retaining the Order in Council veto in respect of the Ombudsmen’s recommendations for Part 2 requests, taking into account submitters’ concerns about altering the traditional Ombudsmen model and affecting the Ombudsmen’s relationships with government agencies.481 While we found those arguments convincing in respect of Part 2 requests, we think they are less so in the present context of sections 22 to 24, which concern fundamental legal rights to information about or affecting the requester. This is a difficult issue, but on balance we think this approach is justified by the increased simplicity and consistency of handling all OIA complaints under the OIA jurisdiction.

It also means that these complainants must first approach the Ombudsmen for a determination of their right to the information, rather than approaching the High Court directly. The Danks Committee thought the Court was best placed to adjudicate on such matters. But we think it is justifiable to “postpone” the Court’s jurisdiction over complaints under sections 22, 23 and 24. This is based on the likelihood that very few requesters will want to go directly to the High Court given the option of seeking a binding determination from the Ombudsmen, and the associated advantages in time, cost and accessibility.482 However, if there are real concerns about this there could be a mechanism by which complainants could seek leave to approach the High Court directly.

We note in further support of this point that section 24 now only deals with body corporates’ rights to their personal information, since the same rights in respect of individuals were shifted out of the OIA and into the Privacy Act.483 In fact Sir Kenneth Keith, who sat on the Danks Committee, commented after the OIA was enacted that he was surprised by the final inclusion of body corporates’ rights in Part 4. They did not appear in the Committee’s draft Bill and he was not aware of any submissions calling for their inclusion.484 Perhaps today their presence there remains slightly incongruous. In any case, natural persons will be unaffected by this new approach as regards section 24, as requests for personal information are dealt with under the Privacy Act.


The tables below summarise how the existing position would change:

Existing position:

  Part 2 Sections 22, 23, 24
Governing Act OIA. Ombudsmen Act.
Grounds for complaint Specific grounds listed in section 28. “Any decision.”
Effect of recommendation to release Binding, subject to veto. Non-binding.
Complainant’s access to court Only after Ombudsmen review. Direct.

After amendments:

  Part 2 Sections 22, 23, 24
Governing Act OIA. OIA.
Grounds for complaint Specific grounds listed in section 28. “Any decision.”
Effect of recommendation to release Binding, subject to veto. Binding, but subject to section 31.
Complainant’s access to court Only after Ombudsmen review. Only after Ombudsmen review, unless the complainant has been granted leave to approach the court in the first instance.

We think it is significant that the enactment of the OIA conferred an additional jurisdiction on the Ombudsmen that was specifically designed to deal with OIA complaints. We believe that complaints based on sections 22 to 24 are properly viewed as OIA complaints to be dealt with, as far as possible, within the Ombudsmen’s unique OIA jurisdiction. It is the OIA that states the relevant rights and provides the gateway for hearing the complaints under sections 22, 23 and 24. The High Court has made the point that the Ombudsmen do not “walk out” of the OIA entirely when operating under their imported Ombudsmen Act jurisdiction.485 These are OIA complaints, even though procedurally they are dealt with under the Ombudsmen Act.

This new approach would remove many of the complexities currently created by the OIA/Ombudsmen Act overlap. The Ombudsmen would be operating within their OIA jurisdiction when determining all OIA complaints. It would then also be possible for the OIA to state comprehensively all the legal rules relevant to determining a complaint, whatever its underlying nature. Complainants would no longer have to cross-refer to relevant provisions of the Ombudsmen Act.

We recognise there is a limit to the extent to which we can and should make the two kinds of complaints subject to the same procedure. Our aim is to better protect the rights set out in the OIA, given the reality that most complainants faced with an agency refusing to release relevant information will not commence court action. We have attempted to address the remedial imbalance that currently exists between the two complaint processes, while maintaining their important underlying distinctions.

R72The complaint-handling process contained in Parts 3 and 4 of the OIA and LGOIMA should be amended to achieve consistency with the complaint-handling process contained in Part 2 of each Act. However, this should not be at the expense of recognising the distinct nature of requests for information under the existing sections 22, 23 and 24 of the OIA and sections 21, 22 and 23 of the LGOIMA.

Our recommended legislative approach

The proposed new approach could be enacted quite simply within the OIA and LGOIMA. The two kinds of information could continue to be dealt with in separate Parts, if desired. Where provisions of the Ombudsmen Act are relevant to either Part, these could be reproduced in full within the OIA, either in a schedule or in the body of the Act. It would create a complete code that complainants can access in its entirety to understand the legal rules that apply to their complaint. This will make the procedure by which the Ombudsmen deal with complaints more transparent and more accessible. Currently, section 29 provides that the Ombudsmen Act applies to investigations under the OIA, except where the OIA states otherwise.486 But if there are provisions of the Ombudsmen Act that are thought relevant to the official information legislation, ideally they should be reproduced in the legislation as and where it is thought appropriate, rather than using a general cross-reference provision.

This also gives an opportunity to reconsider which provisions of the Ombudsmen Act should and should not apply to the Ombudsmen’s OIA investigations. Currently for example sections 13, 14 and 25 of the Ombudsmen Act do not apply to the OIA;487 we suggest that section 20 should be added to that list. That section allows the Attorney-General to prevent the Ombudsmen requiring certain information, answers or documents in an investigation where that would prejudice the security, defence or international relations or might disclose the deliberations or proceedings of Cabinet. The Attorney-General has a more prescribed certification power by virtue of section 31, which we discuss above at paragraph 11.26. Given that section 31 has been expressly crafted for the OIA, we think it is unnecessary for section 20 of the Ombudsmen Act to also apply.

Section 17 of the Ombudsmen Act also warrants further thought as to whether it should apply to OIA investigations. That section permits the Ombudsmen to refuse to investigate a complaint further if they believe further investigation is unnecessary. There is a question about the extent of its applicability to OIA investigations. We make no comment on this either way but suggest further thought should be given to the issue.

Committee on Official Information Towards Open Government: General Report (Government Printer, Wellington, 1980) at 10 (emphasis added).

Ian Eagles, Michael Taggart and Grant Liddell Freedom of Information in New Zealand (Oxford University Press, Auckland, 1992) at 588.

See [11.18] above.

LGOIMA, s 31.

Under the OIA, where release would be likely to prejudice: the security or defence of New Zealand; its international relations; the interests protected by section 7 of the OIA; or the prevention, investigation or detection of offences. Under LGOIMA, where release would be likely to prejudice the prevention, investigation, or detection of offences.

See discussion of the veto power, from [11.75] below.

See Chen, above n 466, at [15.5].

Privacy Act 1993, s 6, Principle 6.

RJ Gregory (ed) The Official Information Act: A Beginning (New Zealand Institute of Public Administration, Wellington, 1984) at 45.

Commissioner of Police v Ombudsman [1985] 1 NZLR 578 (HC) at 588.

LGOIMA, s 28.

OIA, s 29(2); LGOIMA, s 28(2).