Chapter 11: Complaints and remedies

The Ombudsmen’s role under the OIA

In the issues paper we looked briefly at some aspects of the Ombudsmen’s role under the OIA. For the most part we think it is functioning well, and we make only one recommendation intended to clarify the Ombudsmen’s reporting powers under the OIA.

 

The Ombudsmen’s reporting powers

The Ombudsmen play a key role in the OIA and LGOIMA. As the recipient body for complaints about information requests, their recommendations are central to the effective operation of the scheme. But their ability to respond to non-compliant conduct by agencies is limited to making recommendations. The OIA or LGOIMA contain no additional tools the Ombudsmen may use to actively sanction any egregious failures to comply with the legislation.

We note that the majority of breaches arise from misunderstandings of the legislation or genuine mistakes, rather than from intentional acts designed to circumvent the requirements of the legislation. They may be the result of officials being unable to meet deadlines because of workload issues. Also, the fact that a decision of an agency was overturned by an Ombudsman is not necessarily indicative of impropriety. Making decisions about whether to release or withhold information requires weighing up competing and often finely-balanced interests, and it is to be expected that the Ombudsmen will from time to time find that some decisions fell on the wrong side of the line.528

But there are also cases in which an agency’s approach to dealing with a request can only lead to the inference that “game playing” is involved. Steven Price says:529

[T]here are plainly occasions in which agencies or Ministers deliberately flout the law to avoid releasing embarrassing information. They stonewall, even after complaints are made to the Ombudsmen. They adopt ridiculously wide interpretations of the withholding provisions. They don’t conduct a good-faith balance of the public interest that may be served by releasing information. They impose obstructive charges to deter requests. Should there be punishment for this?

We asked in our issues paper whether the Ombudsmen should be able to use sanctions in cases of non-compliance, or should have more direct enforcement powers where their recommendations are not followed. The majority of submissions did not support this. The general view was that the most effective and efficient way to ensure agencies do not flout their official information obligations is through public scrutiny – namely, the Ombudsmen’s ability to draw attention to cases of flagrant breach.

We agree. Increased public scrutiny accords well with the Act’s purpose of encouraging public participation in the law and policy process and promoting the accountability of Ministers and officials.530 Conferring punishment or enforcement powers on the Ombudsmen is less reflective of this underlying purpose. The Ombudsmen also submitted that they have found public reporting to be an extremely effective tool.

The Ombudsmen Rules 1989 enable the Ombudsmen to publicly report on cases under the OIA or LGOIMA. They provide that the Ombudsmen may from time to time publish reports relating generally to the exercise of their functions under the Ombudsmen Act, the OIA or LGOIMA, or any particular case or cases investigated by them.531 However, we think it would be desirable for such a statement to also appear in the OIA and LGOIMA. This is consistent with making the OIA a complete code under which investigations of complaints are carried out.

R82A new provision in the OIA and LGOIMA should state that the Ombudsmen can report publicly on an agency’s failure to comply with its statutory obligations under those Acts.

Appealing the Ombudsmen’s recommendations

We also asked whether it was desirable to introduce an additional right to appeal the Ombudsmen’s decisions, which would make the merits of their decisions subject to scrutiny and hence more open to be contested by both requesters and agencies. We were concerned to seek submitters’ views on this, partly because we originally suggested that the Ombudsmen have final decision-making power by abolishing the veto power in section 32.532

Some submitters stated that appeal on the merits should only be available if the Ombudsmen had full and final decision-making power. The Ombudsmen submitted that introducing statutory appeal rights would sacrifice many of the advantages of the Ombudsmen model and would introduce unnecessary uncertainty and expense into the resolution of complaints about official information. We agree, and do not recommend legislating for the right to appeal the Ombudsmen’s recommendations.

We considered, however, whether a provision in the OIA and LGOIMA should make it clear that the Ombudsman’s recommendations are open to judicial review. In our view this is unnecessary. Legislating for the right to apply to the court’s supervisory review jurisdiction could inadvertently distort or erode the nature of that right, which is already available without an express legislative statement.

The Ombudsmen’s investigation processes

In our issues paper we requested submitters’ views on whether there are any significant problems with the statutory processes the Ombudsmen follow when investigating a complaint.533 The majority of submissions we received (22 to 3) were happy with the existing process. We believe no statutory changes should be made. The flexible and inquisitorial nature of the processes followed by the Ombudsmen is effective for resolving official information disputes.

We note that some submissions presented concerns regarding the length of time an Ombudsman takes to complete his or her investigation and the extent to which the Ombudsmen inform or consult with the agency which is the subject of the complaint. We consider these are points the Office of the Ombudsmen may wish to take into account as part of future investigations and we refer these comments to them.

Issues Paper at [11.78].

Steven Price “Should agencies be punished for breaching the OIA?” (20 March 2009) Media Law Journal <www.medialawjournal.co.nz>.

OIA, s 4; LGOIMA, s 4.

Ombudsmen Rules 1989, r 2.

Issues Paper at [11.70]. We now recommend the Order in Council veto in section 32(1) of the OIA be retained: see R80.

At [11.43].