Chapter 11: Complaints and remedies

In this chapter we examine what happens when someone has a complaint about the way their request for information has been handled by an agency. The Ombudsmen play a central role, as in almost all cases they are the first port of call for people with complaints. The belief of the Danks Committee that the courts would have only a minor role to play in official information matters has been borne out, with few cases brought before the courts so far and, accordingly, minimal judicial direction on the legislation.

The Office of the Ombudsmen received 992 complaints under the OIA and 256 under the LGOIMA in the 2010/2011 year. Of the OIA complaints, 58.4 per cent came from individuals, 17 per cent from the media and 6.3 per cent from Members of Parliament and political party research units.

The Ombudsmen formed final opinions in 366 OIA and LGOIMA cases.457 In 132 cases they found that the decision or action complained of was wrong or unreasonable. They made 17 recommendations under the OIA and one under the LGOIMA. All of these were accepted by the relevant agency, and the information which was originally withheld was disclosed to the complainant or the problematic conduct was remedied.458

Complaints to the Ombudsmen may be made orally or in writing. Their investigations are informal, private and inquisitorial in nature. They are relatively unfettered in the processes they follow, save for some procedural requirements and natural justice safeguards laid down in the legislation. The Ombudsmen are impartial decision makers and do not represent the views of either party.

We think that the broad processes employed by the Ombudsmen are working well. Our recommendations mainly involve some adjustments to the troublesome intersection between the OIA and the Ombudsmen Act 1975 in this area; the grounds for complaint under the OIA; and the outcomes of complaints. In this chapter we also discuss our recommended reforms to enforcement processes and to the “veto” contained in section 32(1) of the LGOIMA.459


Two kinds of complaint under the OIA

Complaints made under the OIA are of two distinct kinds: (i) complaints about requests for access to official information; and (ii) complaints about requests for personal information, or information about the reasons for or rules by which a decision was made “in respect of any person or body of persons in his or its personal capacity.”460 The two kinds of information are quite distinct, and this is reflected in their place in the Act. Requests for information of the first kind are covered in Part 2, while requests for information of the second kind are covered in Parts 3 and 4.

It is also reflected in the way complaints are handled, with complaints based on Part 2 requests dealt with by the Ombudsmen under their OIA jurisdiction; and complaints based on Part 3/4 requests dealt with by the Ombudsmen under their Ombudsmen Act jurisdiction.461 But certain provisions from each Act apply to both kinds of complaint. This creates a complex interface between the two Acts and some potential difficulties for complainants.

The underlying differences between the two kinds of information can be found in the Danks Committee commentary to its draft Bill and in the purpose provision of the OIA. Part 2 requests may be made by any person462 for “any specified official information”. This reflects and upholds the purpose of the Act “to increase progressively the availability of official information to the people of New Zealand” in order to enable citizen participation in government and to enhance the government’s accountability.463

In contrast, Parts 3 and 4 requests are more concerned with the effect of government on the individual. The relevant provisions are sections 22 and 23464 (Part 3) and section 24465 (Part 4). Section 22(1) confers a right of access to:

… any document (including a manual) which is held by a department or Minister of the Crown or organisation and which contains policies, principles, rules, or guidelines in accordance with which decisions or recommendations are made in respect of any person or body of persons in his or its personal capacity.

Section 23(1) confers a right to a written statement of findings and reasons where an agency makes a decision or recommendation affecting an individual in his or her personal capacity.466

Accordingly, sections 22 and 23 are concerned with:467

… “informal administrative law” or “internal law” – the body of rules and criteria which is applied by agencies and statutory officers in making decisions affecting the rights, privileges, or liabilities of individuals.

They reflect the underlying premise that “the individual has a right to know the law that does or may affect him personally.”468

Finally, section 24 confers a right on body corporates to access their personal information. Notably, the right of an individual to access their personal information held by government agencies used to be dealt with under the OIA, but is now handled under the Privacy Act 1993 (which establishes its own process for dealing with complaints made by individuals).469

How complaints are currently handled

Although dealt with in two separate jurisdictions, the procedures employed for the two kinds of complaint are broadly similar. A complaint is received by the Ombudsmen based on a request for information, which the Ombudsmen may investigate in order to determine whether they believe the request was dealt with by the agency appropriately. If the Ombudsmen believe the original request should not have been refused, or that some part of the agency’s response was otherwise wrong or unreasonable, they must report their opinion to the relevant agency and Minister/s. They may also make such recommendations as they think fit to the agency concerned, including that the requested information be released.

There are key procedural differences, however, between the grounds on which a complaint may be made; and the possible outcomes of an Ombudsman’s recommendations. Complaints based on Part 2 requests must be made on one of a list of specific grounds in section 28:470

(a)A refusal to release the information;

(b)A decision to release the information for a charge;

(c)A decision about how to make the information available;

(d)Conditions imposed on the use, communication or publication of the information to be released;

(e)A notice under section 10 which neither confirms nor denies that information exists; or

(f)A decision to extend a time limit for dealing with a request.

In contrast, complaints based on Part 3/4 requests can be brought on the broad basis set out in section 35 of the OIA.471 This creates a general right of complaint about “any decision made under Part 3 or 4”.

Secondly, and perhaps most importantly, the outcomes of an Ombudsman’s recommendation (where one is made) are different for each kind of complaint. In the OIA jurisdiction, applying to complaints based on Part 2 requests, the Ombudsmen’s recommendations are binding, as on the twenty-first working day following that recommendation the agency comes under a public duty to comply. However, section 32(1) provides that the duty does not arise if, before the twenty-first day following the day the recommendation was made, the Governor-General by Order in Council directs otherwise. This enables the Executive Council to “veto” the Ombudsmen’s otherwise binding recommendations. In the case of the LGOIMA, the relevant local authority may exercise the veto itself by resolution at a meeting.472 (Note that, in addition to or instead of exercising the veto power, an agency may also apply for an Ombudsman’s decision to be judicially reviewed.)473

In the Ombudsmen Act jurisdiction, for complaints based on Part 3/4 requests, the Ombudsmen’s recommendations are not binding. The agency in question may simply choose not to adopt them. Hence, no public duty to comply arises and the veto power in section 32(1) does not apply.

The reason for the different procedure was also stated by the Danks Committee which said that “it is inappropriate that an Ombudsman should be able to make what is in effect a binding recommendation on a question of legal right”.474 They were concerned that this would impute judicial characteristics to the Ombudsmen’s Office. The classical conception of the Office of the Ombudsmen is not as a judicial body, but as an Office of Parliament, separate and distinct from the administrative process and acting as an avenue of last resort for the aggrieved citizen.475

The Danks Committee believed that the Court was the most appropriate legal body to determine access issues under Part 3/4 requests. Complainants could still approach the Ombudsmen if they wished, but not within the Ombudsmen’s OIA jurisdiction.

The rest were informally resolved in the reporting year (302) or were formally investigated but resolved without the Ombudsmen needing to form a final opinion or recommendation (202).

Office of the Ombudsmen “Report of the Ombudsmen for the year ended 30 June 2011” (Wellington, July 2011) at 33–34. In many cases where the Ombudsmen formed the opinion that the decision was wrong or unreasonable, the agency took remedial action voluntarily, so no formal recommendation was made.

Where we refer to the “local authority veto” or “LGOIMA veto” in this chapter we are referring to the veto exercisable by the various public bodies subject to the LGOIMA. Where we refer to the “Order in Council veto” or the “OIA veto” we are referring to the veto exercisable by the Executive Council under the OIA.

OIA, s 22; LGOIMA, s 21.

See OIA, s 35(1) which provides that “[i]t shall be a function of the Ombudsmen to investigate, pursuant to the Ombudsmen Act 1975, any decision made under Part 3 or Part 4 ...”. LGOIMA, s 38(1).

Being a New Zealand citizen; a permanent resident of New Zealand; a person who is in New Zealand or a body corporate incorporated in, or with a place of business in, New Zealand: OIA, s 12. These restrictions do not apply to requesters under LGOIMA: s 10.

OIA, s 4; LGOIMA, s 4.

LGOIMA, ss 21–22.

LGOIMA, s 23.

See Mai Chen Public Law Toolbox (LexisNexis, Wellington, 2012) at [10.4.15] and Graham Taylor and Paul Roth Access to Information (Lexis Nexis, Wellington, 2011) at [4.31] – [4.38] for discussion of the importance of the right to reasons.

Committee on Official Information Towards Open Government: Supplementary Report (Government Printer, Wellington, 1981) at 76.

At 75.

Part 3 of the OIA also confirms a person’s right to: (i) a Ministry of Justice publication describing the information held by all agencies subject to the OIA (currently published in the form of the Ministry of Justice’s Directory of Official Information: OIA, s 21(1)); and (ii) categories of official information set out in regulations to the OIA (although no such regulations were ever made): OIA, s 21(2). We make recommendations in chapter 12 that, if accepted, would replace the Directory of Official Information. Therefore in this chapter we focus on sections 22 to 24 of the OIA only.

LGOIMA, s 27. Later in this chapter we suggest adding further grounds for complaint dealing with (i) time limits; (ii) transfers; (iii) failures to notify third parties of release; and (iv) failures to properly apply the withholding grounds or balance the public interest in release.

LGOIMA, s 38.

LGOIMA, s 32(1).

The privative clause in section 25 of the Ombudsmen Act 1975, which precludes review of the Ombudsmen’s decisions, does not apply to the Ombudsmen’s OIA jurisdiction: OIA, s 29(2); LGOIMA, s 28(2).

Committee on Official Information, above n 467, at 78.

I Eagles and M Taggart “Submission to the Justice and Law Reform Committee on the Official Information Amendment Bill 1986” (May 1986) at 17.