Chapter 11: Complaints and remedies

Providing additional grounds for complaint

In this section we recommend that the Ombudsmen’s functions in section 28 of the OIA (section 27 of the LGOIMA) be extended to provide for some additional grounds for complaint. We also recommend additional grounds for complaint in chapter 9 (two grounds) and chapter 12 (one ground), which we discuss further in those chapters.495

It is relevant to the following discussion that some bodies subject to the OIA are not covered by the Ombudsmen Act 1975 (although the Crown Entities Act 2004 closed some of these gaps).496 If certain complaints not able to be made under the OIA would instead usually be heard under the Ombudsmen Act, these anomalies in coverage will affect those complaints where the relevant agency is not covered by the Ombudsmen Act – leaving potential complainants without a remedy.

We would point out also that it is quite difficult to identify the gaps in coverage between the Ombudsmen Act and the OIA. For example, the OIA covers a range of separately named bodies which are listed in Schedule 1. Some of these are listed in the Ombudsmen Act Schedule under the collective designation of “Crown entities”. To determine whether a body named in the OIA is a Crown entity covered by the Ombudsmen Act, complainants must cross-refer to quite detailed interpretation provisions of the Crown Entities Act 2004. As we discuss more fully in chapter 14, the OIA should contain a comprehensive list of bodies covered by it.

 

Failure to respond within time limits497

Under the OIA an agency must decide whether to grant a request for information “as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the request is received”.498 Section 28(4) provides a ground for complaint to the Ombudsmen if an agency has failed to make its decision “within the time limit fixed by section 15(1)” (by deeming this to be a refusal to make the information available).499 But there is a degree of ambiguity in section 28(4). It is not clear whether it confers on requesters only the right to complain that a decision has not been made within 20 working days; or whether requesters may also complain that a request has not been made as soon as reasonably practicable, even if 20 working days have not yet passed. For this reason, complaints that a decision has not been made as soon as reasonably practicable are currently handled under the Ombudsmen Act, provided the agency in question is subject to that Act.500

We think these are clearly complaints about official information, properly within the Ombudsmen’s OIA jurisdiction, and we think they should be dealt with under the OIA rather than the Ombudsmen Act. Where a request has not been dealt with as soon as reasonably practicable, there should be grounds to complain.501 Perhaps the best way to do this is to remove section 28(4) and its reference to “deeming” and create a new complaint ground in section 28, stating that it is a function of the Ombudsmen to investigate and review an agency’s failure to make a decision within the time limit fixed by the legislation, or any extended time limit, or as soon as reasonably practicable. The new complaint ground will then be worded consistently with other existing complaint grounds in section 28.

There is also some ambiguity around section 28(5).502 That section deems that “undue delay” in making information available amounts to a refusal of a request, and thereby a ground of complaint to the Ombudsmen. This is intended to address those situations where an agency has made a decision within the legislative time limits, but has unduly delayed the actual release of the information. However, the section does not specify what period of time amounts to “undue delay”. Currently, an agency could potentially make a decision within 20 days to release specified information, but then fail to release it for another 20 days. It is not clear whether or not this would constitute “undue delay”.

In chapter 10 we recommend that it be made explicit in the legislation that the 20 working day time limit covers both (i) an agency’s decision about release or withholding; and (ii) the release of any information in response to the request. Currently the legislation is not clear whether the 20 working day time period covers both elements of a request (although most agencies and requesters do tend to interpret it in this way).

There should be a ground to complain to the Ombudsmen under the OIA if an agency has failed to do either of these things within the time limits required by the legislation. This could be achieved by removing section 28(5), and its somewhat ambiguous reference to undue delay, and inserting a new complaint ground making it a function of the Ombudsmen to investigate and review any decision by which an agency fails to make official information available in response to a request within 20 working days or “as soon as reasonably practicable”.

R75To improve the clarity of the complaint grounds, section 28(4) of the OIA and section 27(4) of the LGOIMA should be removed and replaced with a new ground providing for the Ombudsmen to hear complaints that an agency has failed to make a decision in response to a request for official information within 20 working days (or a properly extended time limit) or “as soon as reasonably practicable”.

R76To improve the clarity of the complaint grounds, section 28(5) of the OIA and section 27(5) of the LGOIMA should be removed and replaced with a new ground providing for the Ombudsmen to hear complaints that an agency has failed to make official information available in response to a request within 20 working days (or a properly extended time limit) or “as soon as reasonably practicable”.

Failure to comply with transfer requirements

An agency that receives an information request must transfer that request to another agency if that other agency is better suited to responding to the request.503 An agency that is required to transfer a request must do so promptly and within 10 working days at the latest. The circumstances in which transfer must be made are prescribed by the section – transfers are not at the discretion of the agency.

In chapter 10, we discuss the problems that transfers can sometimes cause. For example, a transferring agency may also have relevant documents which they inadvertently fail to release once they have transferred the request. This can prejudice requesters by narrowing the scope of information available to answer the request.

We believe that a requester should be able to complain under the OIA if this occurs. Currently, such complaints can only be dealt with under the Ombudsmen Act, provided that the agency in question is subject to that Act. The Ombudsmen observed that this could be remedied by making it clear that requesters may complain about the fact of a transfer to the Ombudsmen in their OIA jurisdiction. The Law Commission recommended this in its 1997 review of the OIA and we remain of that view.504 The majority of submissions we received (18 to seven) also supported adding such a ground.

We emphasise that the intention is not to second-guess an agency’s decision to transfer a request, but to ensure that transfers are done in a timely manner and do not inadvertently cause prejudice to requesters.

R77Section 28 of the OIA and section 27 of the LGOIMA should provide for the Ombudsmen to hear complaints that an agency has not properly transferred a request for information, whether fully or partially; and that an agency has not complied with designated time limits for transfers.

Complaints by third parties

In this section we discuss the possibility of extending the Ombudsmen’s functions to hear complaints not just by the person who requested the information, but by third parties who may be affected by the release of that information.

Failure to notify third parties before release of their information

In chapter 10 we discuss consultation under the official information legislation, and the desirability of seeking the views of third parties who may be affected by the release of their information or information about them. We recommend that, where reasonably practicable, agencies should be required to notify a third party prior to the release of its information, where there is otherwise good reason to withhold on privacy, confidentiality or commercial grounds or (for requests under the LGOIMA) to avoid causing serious offence to tikanga Māori or the disclosure of the location of wāhi tapu. The agency would have to give the third party at least five working days’ notice and take into account any submission made in favour of withholding within that time.

As we note in chapter 10, this provision will give affected third parties an opportunity to submit their views and to take steps to protect their interests if the agency does proceed to release the information, for example by applying for judicial review or an injunction. Ultimate decision-making power would rest with the agency but submissions received within the timeframe would have to be taken into account.

If an agency fails to notify a third party in circumstances where it otherwise would be expected to do so, we recommend the third party have a ground to complain to the Ombudsmen. This will act as an incentive for agencies to be aware of, and to fulfil, their notification obligations. As complaint precedents accumulate, they may be used to provide guidance to agencies about who they should notify and in what circumstances.

R78Section 28 of the OIA and section 27 of the LGOIMA should provide for the Ombudsmen to hear complaints that an agency has not complied with its obligations to notify affected third parties prior to releasing their information.

Failure to properly apply the withholding grounds or balance the public interest in cases where information is released

We have considered whether the OIA and LGOIMA should provide a ground for complaint where someone disagrees with an agency’s decision to release information and believes it should more properly have been withheld under one of the withholding grounds.505 These might be described as “reverse” freedom of information complaints. Currently the legislation only enables the Ombudsmen to review decisions to withhold information. There is no process within the OIA or LGOIMA for reviewing decisions to release information, nor did the Danks Committee propose one.

Under the OIA, civil or criminal proceedings may not be brought against the Crown or agencies where they have released requested official information in good faith.506 However, some other legal avenues are available to prevent or review decisions to release, including: (i) an injunction to prevent release;507 (ii) judicial review of the decision to release; or (iii) a complaint to the Ombudsmen about the release as “a matter of administration” under the Ombudsmen Act.508 These have limitations. Injunctions will be available in limited circumstances, since the Court cannot award an injunction against the Crown or its servants,509 which will encompass many of the bodies subject to the OIA. The Court may however make a declaratory order as to the rights of the parties. Also, an injunction will only be useful where the complainant is aware of the decision to release in advance – for example, if they have been consulted as an affected third party. So while an injunction is useful in the right circumstances, it will not always be a practicable or available remedy.

Judicial review applications take time and can be expensive. The third option, seeking review under the Ombudsmen Act, is more accessible. However this option is not made obvious within the current legislation and there is little awareness of it. In addition, it is not an option for all OIA and LGOIMA complainants, because not all OIA and LGOIMA agencies are subject to the Ombudsmen Act.510 Also, the Ombudsmen Act explicitly excludes decisions of the Police511 and Crown legal advisers512 from its ambit. This creates an anomalous position between those who may complain under the Ombudsmen Act and those who may not.

Finally, it is also possible that the release of information would give rise to a breach of a third party’s privacy. But the High Court has held that the complaints process under the Privacy Act 1993 is not available in respect of decisions to release under the official information legislation.513

In summary, none of the current avenues of complaint provide a comprehensive review mechanism that would otherwise be available if the Ombudsmen could hear “reverse” freedom of information complaints. This contrasts with the position in Australia, where a person affected by a decision to “grant access” to information may apply to the Information Commissioner to review the decision under the federal Freedom of Information Act 1982.514 Some submitters suggested this was a significant gap in our legislation. Significant loss or damage could be caused by releasing the information and the affected person or entity may feel they have no way to make their objections heard.515 They may have valid reason to wish to challenge how an agency assessed the weight of the withholding grounds protecting private interests, or the way that an agency applied the public interest balancing exercise, if indeed it was carried out in a meaningful way.516

We recognise, however, that there are good policy reasons for limiting the accountability of officials for releases of information. If officials were exposed to complaints about their decisions to release, they may be more inclined to withhold when there is any shadow of doubt, thus controverting the Act’s objective of creating a culture of transparency, openness and the progressive availability of information. The legislation will not function as it should if officials are hesitant to release information for fear of their decisions being reviewed. We do not want any complaint ground to have a chilling effect on the release of information. This would also be directly contrary to the purpose of section 48 of the OIA, which protects agencies and Ministers from legal proceedings where they release information under the Act in good faith.517

We also note that any legal basis on which a person might complain about a decision to release could not be that the decision itself was wrong, but rather that the withholding grounds were not correctly applied. This is because the OIA does not place a legal duty on agencies and Ministers to withhold information, even if a withholding ground is made out. They may still choose to release it, and where this is done in good faith they cannot be subject to legal proceedings, by virtue of section 48. Because there is no duty to withhold, no corresponding right to have that information withheld can arise. Therefore the complaint cannot be on the basis that a right has been breached, and that the agency or Minister should have withheld the information. The complaint can only be on the grounds that the agency or Minister did not properly apply the withholding grounds in their decision-making process. Any complainant would therefore be asking the Ombudsman to review the decision-making process, rather than the decision itself.

From a practical perspective, this may mean that few complaints about release will have a directly useful outcome for the complainant. The information will already have been released, so any complaint would serve primarily to draw attention after the fact to failures in the agency’s decision-making process. Nonetheless, in some cases this alone fulfils a valuable function. Agencies may hold much information about a particular person or entity – for example, commercial bodies performing contracted services. If they disagree with a decision to release some of their information, bringing a complaint enables them to comment on the decision-making process before further information is disclosed through later requests.

Another key justification for allowing these kinds of complaints concerns the broader operation and administration of the official information scheme. Complaints can enable agencies to assess how well they are applying the requirements of the OIA. The conclusions reached can serve to improve that process by providing better guidance, both to the original decision-makers and across the government sector. As the recipient body of the complaints, the Ombudsmen would be better placed to monitor the decision-making process, and if necessary draw attention to an agency’s failure to give adequate weight to withholding grounds, or shortcomings in its public interest balancing exercise. This acts as an incentive for agencies to carry out that process thoroughly and carefully, but without exposing them to legal proceedings.

In the long term, improved decision-making helps ensure the integrity of the official information legislation, thereby improving citizens’ trust in the transparency and accountability of government. From the complainant’s perspective, the ability to complain may also benefit them directly by serving a cathartic function. They are able to air their concerns where they feel their interests have been adversely affected, even if doing so cannot reverse any damage directly resulting from the release of the information. Moreover they may succeed in improving the agency’s processes in the future. For all these reasons we support the concept of the “reverse complaint”.

Reverse freedom of information complaints: options for reform

In the issues paper we canvassed two options for dealing with complaints about release.518 The first option was to continue to deal with these complaints under the Ombudsmen Act, but to extend that Act, for the purpose of official information complaints, to those bodies covered by the OIA but not by the Ombudsmen Act, including Ministers.519

The second option was to extend the Ombudsmen’s review functions to enable them to hear reverse freedom of information complaints under the OIA.

We received few submissions expressing a clear preference either way, but we prefer the second option. Earlier in this chapter we recommend that the procedure for dealing with Part 3/4 complaints, which largely occurs under the Ombudsmen Act, be brought under the Ombudsmen’s OIA jurisdiction. We think complaints about decisions to release should also be dealt with under the OIA. These are essentially the “flipside” of complaints about decisions to withhold, so should be dealt with under the same piece of legislation. This is also consistent with creating a comprehensive, independent review function for the Ombudsmen under the OIA and LGOIMA, within which they are able to address most complaints that arise in relation to official information requests.520

Extending the Ombudsmen’s functions in this way is subject to an important qualification – namely, that the Ombudsmen can only hear complaints where the information in question has already been released. There may be a scenario where a third party is notified of an intention to release their information where it would otherwise be withheld, for example on commercial grounds. The third party may have the right to be heard by the agency and, if they wish, to seek an injunction or judicial review within a limited time period. They should not be able to pre-emptively complain to the Ombudsmen, in the period between notification and release, that the withholding grounds or the public interest exercise have not been properly carried out. This could be used to exploit the Ombudsmen’s review function and to introduce uncertainty and delay into the process. The reverse right of complaint should be confined to cases where the information has already been released.

R79Section 28 of the OIA and section 27 of the LGOIMA should provide for the Ombudsmen to hear complaints that an agency has not followed proper process before deciding to release information. The complaint ground should only become available after the information has been released.

See chapter 9 at R37 and R41, and chapter 12 at R99.

The following organisations are subject to the OIA but are not listed in Schedule 1 of the Ombudsmen Act (and we note that they are not Crown entities under the Crown Entities Act 2004, which are subject to the Ombudsmen Act): Abortion Supervisory Committee, Armed Forces Canteen Council, Deer Industry NZ, Fiordland Marine Guardians, Fisheries Authority, Government Communications Security Bureau, NZ Council for Educational Research, NZ Government Property Corporation, NZ Kiwifruit Board, NZ Meat Board, NZ Parole Board, NZ Racing Board, NZ Security Intelligence Service, Parliamentary Commissioner for the Environment, Public Advisory Committee on Disarmament and Arms Control, Queen Elizabeth the Second National Trust, Radiation Protection Advisory Council, Remuneration Authority, Representation Commission, Reserve Bank of NZ, Sentencing Council, Survey Board of NZ, Temporary Safeguard Authorities under the Temporary Safeguard Authorities Act 1987, Waitaki Catchment Water Allocation Board, Waitangi National Trust Board, Winston Churchill Memorial Trust Board. OIA, Schedule 1, also covers “Education Authorities as defined in the Education Act 1964” but these are now deemed to be boards constituted under Part 9 of the Education Act 1989, which are Crown entities covered by the Ombudsmen Act: Education Amendment Act 1990, s 2.

Also, the following local authorities are subject to the LGOIMA but are not listed in Schedule 1 of the Ombudsmen Act: administering bodies of reserves (as defined in the Reserves Act 1977) and the Hauraki Gulf Forum (although the “Hauraki Gulf Marine Park Board” is listed in Schedule 1).

OIA, s 28(4), s 28(5); LGOIMA, s 27(4), s 27(5).

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

LGOIMA, s 27(4).

For a full list of bodies covered by the OIA or LGOIMA but not by the Ombudsmen Act, see above n 496.

This ambiguity is perhaps most likely to cause difficulties for requesters with urgent requests. If an agency has waited until the end of 20 working days to decide whether to release, the period of urgency may be well past. But it may have been reasonably practicable for the agency to make its decision earlier. We also address this in chapter 10 where we recommend that, where urgency is afforded to a request, the decision should be made and the information released as soon as reasonably practicable in the circumstances: see chapter 10, R56.

LGOIMA, s 27(5).

OIA, s 14; LGOIMA, s 12.

Law Commission, above n 491, at [189].

The Law Commission considered this question in the context of the release of personal information under the OIA in its Issues Paper Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 (NZLC IP 17, 2010) at [11.53] – [11.58].

OIA, s 48; LGOIMA, s 41.

See for example Veitch v New Zealand Police, TV Works Limited, Fairfax NZ Ltd and APN NZ Ltd HC WN CIV-2009-485-960.

Ombudsmen Act 1975, s 13. See Office of the Ombudsmen “The Ombudsmen Act and the Disclosure of Information about Third Parties” (March 2006) 12(1) OQR.

Crown Proceedings Act 1950, s 17. The prohibition on awarding an injunction against the Crown is currently being examined by the Law Commission as part of its review of the Crown Proceedings Act. More information about the review is available at <www.lawcom.govt.nz>.

Compare OIA, Schedule 1, LGOIMA, Schedule 1 and Ombudsmen Act, Schedule 1, above n 496. Crown Ministers are also not listed in the Ombudsmen Act schedule, although the decision of a Minister could potentially be the subject of a reverse freedom of information complaint under the OIA.

Ombudsmen Act, s 13(7)(d).

Ombudsmen Act, s 13(7)(c).

See Director of Human Rights Proceedings v Police HC Wellington CIV-2007-409-002984, 14 August 2008.

Section 54M.

Where a person has suffered real harm, the agency in question might consider making an ex gratia payment, but we do not propose this be provided for in the legislation.

Some agencies’ responses to our initial survey indicated that sometimes the public interest test is applied in a “token” fashion and that sometimes it is ignored altogether: Issues Paper at [8.5].

LGOIMA, s 41.

Issues Paper at [11.34].

See above n 496, for a list of bodies subject to the OIA but not covered by the Ombudsmen Act.

We considered the view that complaints about decisions to release more closely resemble complaints received by the Ombudsmen under their Ombudsmen Act jurisdiction – ie, complaints about an administrative decision affecting someone in a personal capacity. But ultimately we believe this is outweighed by the need for consistent treatment of these complaints which mirror those that are currently dealt with under the OIA.