Chapter 13: Oversight of official information legislation


A set of statutory functions

Our 2010 Issues Paper proposed that statutory responsibility for some new functions should be included in the OIA and the LGOIMA. The submissions confirmed that co-ordination of various operational aspects of the official information framework can be problematic for both agencies and requesters. But although there is agreement on some problems, submitters offer a variety of views on how the Act should operate and who should be responsible for oversight. In this section we discuss possible statutory functions and the submissions received on them. We discuss the options for assigning the leadership function to a particular agency later in this chapter.

Functions of the Office of the Ombudsmen

We begin with two vital functions that we consider should remain with the Office of the Ombudsmen:

(a)Complaints; and



We propose that the Ombudsmen retain the official information complaints jurisdiction they currently have, subject to the changes we propose to their complaints process in chapter 11. This was also the very clear feedback received from submissions, with unanimous support from 39 submitters that the Ombudsmen should continue to receive and investigate complaints. The Media Freedom Committee commented that;

For the most part, the mainstream media has a good and mutually respectful relationship with the Ombudsmen’s Office.

Such negative comments as there were concerned resourcing issues and timing concerns, resulting in delays in processing complaints. Removing the Ombudsmen as the complaints body would mean losing the institutional knowledge and awareness built up over more than 25 years of dealing with official information complaints.



In the issues paper we said that the provision of guidance is an appropriate role for the Ombudsmen,710 and this approach is strongly supported by the submissions. There was also overwhelming support for more specific and targeted guidance about the withholding grounds, particularly in regard to commonly recurring situations. In Chapter 2 we make recommendations about the function of guidance, which we anticipate will primarily be available online and on which training for both officials and requesters can be based.

Several submitters noted that if the Ombudsmen did not already carry out a guidance function without being required to do so, there would be a serious gap. Other submitters pointed out that if the online advice were more streamlined and user-friendly, if there was better training for officials, the media and interest groups, and if the official information legislative provisions were clearer, there would be less need for guidance of any kind.

Guidance from the Ombudsmen is about the correct interpretation of the legislation and therefore how the provisions should generally be applied. Some submitters noted the fine line between legal advice and guidance and how important it is that guidance is not seen as determinative. The Office of the Ombudsmen receives requests for advice from agencies in relation to specific requests but only provides general advice about the types of considerations that should be taken into account. It would be inappropriate to give what would amount to legal advice when the Office may be called on to investigate and review the decision taken. We agree with this approach.

We contrast the authoritative but interpretative approach of the Ombudsmen with the situation under the Privacy Act where the Privacy Commissioner can provide specific advice if requested.711 A significant difference is that Privacy Commissioner resolutions on a complaint can be taken to the independent Human Rights Review Tribunal, whereas Ombudsmen recommendations are to all intents and purposes the end of the line for complainants.

We also discussed in the issues paper the contentious issue of whether it is appropriate for a complaints body that makes rulings over legal rights to also issue guidance on how the rules governing those rights are to be applied.712 We considered the possibility of the State Services Commission or the Department of Internal Affairs taking this responsibility but rejected those options and noted the potential risk for confusion if the Ombudsmen and an alternative guidance agency hold different views on interpretation of the legislation. In the Law Commission’s review of the framework for the sale and supply of liquor we discussed the propriety of a body that adjudicates disputes having parallel functions in the form of responsibility for guidance and practice notes, and concluded that it does not offend against constitutional practice.713

Given the exposure of the Ombudsmen to complex official information problems and the experience gained from dealing with both complainants (requesters or third parties) and officials, we consider they are best placed to develop formal guidelines and practice notes that take account of considerations that weigh for and against release. We recommend in Chapter 2 that the Office of the Ombudsmen should carry out the statutory function of provision of guidance as set out but, as we explain in that chapter, when preparing that guidance they should consult with the office that has oversight of the official information legislation.

R105The Ombudsmen should continue to have the statutory function of investigating complaints under section 28 of the OIA and section 27 of the LGOIMA.

R106The Ombudsmen should have the statutory function of providing guidance on the official information legislation, as recommended in R1.

Oversight functions

In the issues paper we suggested that the OIA and the LGOIMA might include an oversight function that encompassed monitoring the operation of the Acts, policy, review and promotion.714 The great majority of submitters were in favour, with one commenting this would assist adaptation to changing circumstances, rather than complaints being the only driver. The Ombudsmen also strongly support these statutory functions, pointing out that they are all functions the Danks Committee originally envisaged would be required for an effective access to information regime. A few submitters, who agreed with the functions being carried out, were not sure that legislation was necessary.

After consideration of the submissions and further consultation we have concluded that a number of oversight functions should be given statutory authority under the leadership of one oversight office or officeholder, although not necessarily only carried out by that body. In creating a list of functions we have also drawn in part on the provision conferring functions on the previous Information Authority, reset for our present day context. We have also taken into consideration the range of recommendations in this final report which will require facilitative leadership over several years to progress. A large proportion of our recommendations propose development of guidance and best practice models that will require cross agency leadership.

In our view the functions we propose are integral to the official information legislation and essential for its efficient operation. We also believe there is a particular need for these functions to be undertaken during the next few years so as to promote and incorporate changes for the pro-active digital environment.

We emphasise again that we recognise official information is a part of the wider government information management network. While it is not our role to frame recommendations that encompass the whole picture, we strongly support development of an integrated management framework to provide strategic oversight, leadership and co-ordination of government held information, and for this to include oversight of the official information legislation.


Our focus here is on leadership for the operation of official information framework. The functions we propose are necessary to allow the office charged with oversight to carry out the responsibilities of leadership.

There are several models of overall leadership or responsibility in related legislation. The Public Records Act 2005, for example, also covers both central and local government agencies. The wide application of the official information framework, with compliance being a requirement for all officials and impacting on all the information they hold, no less requires leadership and oversight. The first function of the Chief Archivist is:715

to exercise a leadership role in record keeping and in the management of public archives in New Zealand;

We also see leadership as encompassing the promotion of official information principles, arising from the first purpose of the Official Information Act:716

to increase progressively the availability of official information to the people of New Zealand- - -.

The Privacy Act 1993, Health and Disability Commissioner Act 1994, and Human Rights Act 1993 all include functions for promotion of the principles of their legislation. The Privacy Commissioner is given a wide range of activities in order to:717

promote, by education and publicity, an understanding and acceptance of the information privacy principles and of the objectives of those principles.

The Health and Disability Commissioner is required to:718

promote, by education and publicity, respect for and observance of the rights of health consumers and disability service consumers, and, in particular, to promote awareness … of the rights of the health consumers and disability services consumers and of the means by which those rights may be enforced.


We envisage that the legislation would provide for an oversight office to have overall leadership and be required to report annually to the relevant Minister on the operation of the official information legislation in government and local government. We propose that statutory oversight for the provision of official information would incorporate the following functions:

(a)Policy advice;

(b)Operational review;

(c)Promotion of best practice;

(d)Statistical oversight;

(e)Oversight of training for officials;

(f)Oversight of guidance for requesters; and

(g)Annual reporting.

Policy advice

We suggested in the issues paper that the oversight office should be responsible for making reports on prospective legislation or policy relating to access to official information. Such a policy function would impose a positive obligation to provide advice to Government on proposed legislation or policies affecting access to government information and on the implications for the official information framework. This would ensure that the links between access entitlement under the OIA and the LGOIMA and information management more generally are not overlooked.

For example, we see new policy responsibilities arising with collaboration on new information initiatives such as data reuse, particularly at the outset of planning, to ensure streamlined co-ordination with the existing official information framework.719 Policy advice can and will be given by other relevant agencies but there is no consultation requirement specifically relating to the official information framework and significant implications are sometimes overlooked. The Privacy Commissioner takes a similar statutory role in relation to the Privacy Act.720


It is 24 years since the Information Authority ceased to exist and we consider that official information policy is again at a stage where work on specific regulatory issues is needed to ensure the legislative framework remains effective and pertinent. Earlier in this report we identified some gaps where we have given a lead but propose that further work is needed, which is likely to lead to further legislative change. In some cases we have provided a detailed analysis of the issues and suggested the direction but recognised that whole-of-government collaboration is required. These include:

(a)reviewing the schedules of the Acts to eliminate anomalies, bring within coverage organisations that should be included and provide one accessible list of the agencies covered by the official information legislation (chapter 2);

(b)revising guidance about ministerial/agency consultation and transfers (chapter 4);

(c)developing policy advice on the need for culturally sensitive withholding grounds (chapter 7);

(d)establishing a consistent and principled charging framework for the provision of information which covers official information legislation and also other relevant government information initiatives such as NZGOAL (chapter 10).

In our view, this work is needed in the near future. Integration of the official information framework with the digital and other initiatives underway may also require new policy and regulatory work. We see the oversight office or officer as facilitating and contributing to, or as appropriate, leading this policy work.

One-off policy issues also arise, such as when a secrecy provision is proposed in a draft Bill or a new public agency is proposed. The oversight body would report to Parliament on the appropriateness of the secrecy provision and whether the new agency should be subject to the OIA or LGOIMA.

The importance of Government receiving wide policy advice on public information matters is increasingly recognised in other jurisdictions. For example, since 2003 the United Kingdom has had an independent Advisory Panel on Public Sector Information (APPSI). This panel:721

(a)advises Ministers on how to encourage and create opportunities in the information industry for greater re-use of public sector information;

(b)advises the Director of the Office of Public Sector Information and the Controller of HM’s Stationery Office about changes and opportunities in the information industry, so that the licensing of Crown copyright and public sector information is aligned with current and emerging developments; and

(c)reviews and considers complaints under the Re-use of Public Sector Information Regulations 2005 and advises on the impact of the complaints procedures under those regulations.

Operational review

The effective operation of the OIA and LGOIMA is a practical matter in the hands of numerous officials, and there is value in assigning a statutory function for assessment of whether the legislation is working well, whether amendments are needed, and whether other measures are required to enhance their efficacy. Our recommendations elsewhere in this report include several operational aspects where review will be the first step in undertaking policy or regulatory work, for example reviewing the take-up of the proposed pro-active release provision,722 or whether the proposed legislative amendment results in more effective application of the public interest test.723 In order to provide useful and relevant policy and regulatory advice, the oversight body needs to have authority to investigate what is actually happening.

We consider the oversight body should also be able to receive representations from members of the public or officials and investigate problems they experience with the operation of the Acts. This does not duplicate the Ombudsmen’s complaints function about specific requests. It is about ensuring there is a way for the public to notify, and for government to investigate, operational problems that may arise such as systemic problems within an agency, the need for a specific legislative amendment or even the working of the complaints process. The Ombudsmen can and do call attention to management problems that come to notice in relation to complaints they receive, but we consider this operational oversight function should be formally recognised in the legislation.

Similar responsibility exists in other New Zealand legislation, including the Human Rights Act 1993 and Children’s Commissioner Act 2003. The Health and Disability Commissioner, for example, is required to:724

receive and invite representations from members of the public and from any other body, organisation, or agency on matters relating to the rights of health consumers or disability services consumers or both

It is a common function amongst Information Commissioners abroad to monitor individual agency compliance with freedom of information legislation. We do not advocate a specific statutory power to undertake mandatory audits of agencies’ compliance with the OIA or the LGOIMA. Where systemic issues are identified through complaints or representations made to the oversight body, these can be investigated and reported to the responsible Minister who may undertake further enquiry.

The Law Commission considers that periodic reviews of all legislation is desirable. In our review of the Privacy Act, we expressed the view that:725

Reviewing legislation has a number of benefits including assessing how well legislation is working in practice, contributing to better regulation and improving implementation of the legislation.

The Privacy Commissioner is required to undertake reviews of the operation of the Privacy Act at intervals of not more than five years.726 To date, a total of five such reports have been made to the responsible Minister, each proposing a significant number of legislative changes.727 We suggested in our review of the Privacy Act that that Act be reviewed at the same time as the OIA and the LGOIMA and the Public Records Act 2005, given the close interrelationship of these three statutes.728 We remain of this view.

Promotion of best practice

We noted at the start of this chapter that lack of central co-ordination or oversight of internal management processes has resulted in little sharing of common problems and solutions, and with agencies largely developing their own internal systems for applying the official information legislation. The submissions suggest that agencies operating under the LGOIMA may be particularly isolated in this regard. There has been little attention given to developing cross-agency protocols or best practice models.

We see a role for the oversight office to promote best practices across agencies, in consultation with the Ombudsmen. In this report we have mentioned areas where the development of best practice would be desirable such as:

(a)consultation with third parties when releasing information relating to them (chapter 10);

(b)developing timely and appropriate processes for managing both individual requests and proactive release (chapter 12); and

(c)providing user friendly information for requesters (chapter 9).

We also make recommendations for some specific guidelines to be developed where new issues have arisen in recent years. We envisage that an oversight office or office holder could respond to these recommendations, and to other significant practice issues called to their attention by central and local government agencies, by initiating and coordinating the development of best practice models and cross agency guidelines.

For example, in this report, we recommend guidelines should be developed for:

(a)The crossover between the Public Records Act 2005 and the official information legislation (chapter 15);

(b)The interaction of the OIA, LGOIMA and the Public Records Act 2005 in relation to requests for metadata and information in backup systems (chapter 10);

(c)The interaction of the OIA, LGOIMA and NZGOAL, including advice about legal restrictions on the use of released information such as defamation, copyright, privacy and contempt of court (chapter 10);

(d)Encouragement of proactive release opportunities by developing lists of possible categories of information and of examples (chapter 12); and

(e)Liability issues and due diligence best practice to manage any potential liabilities involved with pro-active release (chapter 12).

Statistical oversight

Little data and few statistics currently exist about the official information regime. As Nicola White indicates, statistics gathered by the Ombudsmen are limited to numbers of complaints and as such only provide part of the picture, in that this can only give a sense of “the way in which the dispute resolution system is working, rather than an overview of the way in which government information is being made available to citizens.”729 The requirement to maintain statistics about official information requests already exists, consistent with agencies’ obligations to create and maintain full and accurate records of its affairs under the Public Records Act 2005.730 In order to review the operation of the Act and ensure policies and practice keep pace with changes in the information environment, we consider there should be some statutory clarification about the collection and maintenance of data for both agencies and the oversight body.

In the issues paper we proposed that the oversight agency could be charged with collecting statistics about the operation of the Act and should also report annually to Parliament on the overall operation of the Act.731 This proposal was not supported by agency submitters, and we have modified our proposal in light of this.

Comments included reservations about the practicality and cost of collecting statistics and whether the benefit would offset the cost. Central government agencies made less comment on this aspect, possibly because their reporting requirements already include some of this information and they would not find the provision of statistics to the oversight agency much more onerous than current practice. One comments that it would duplicate reporting within the agency. Many agencies only log formal requests and several submitters thought it would be impractical to report accurately on all requests as most are informal or oral and responded to immediately.

It appears to be practical for most agencies to provide statistics on requests for information that were refused and on the overall resources applied to responding to official information requests, but we agree that it is difficult to provide statistics on the total number of requests received, whether orally or in writing.732 We suggest more work should be undertaken with agencies to clarify, probably in regulations, what statistics must be kept. We envisage that at a minimum the statistics would include:

(a)the number of requests received in writing and responded to;

(b)whether information was withheld;

(c)what withholding ground or grounds were relied upon in each case; and

(d)the resources applied generally to official information work.

A very clear majority of submitters agree with us that there should be no statutory requirement for an annual audit relating to the official information legislation, as required in some other jurisdictions, since agencies already have robust legislative compliance requirements. Taking a contrary view, two requester submitters point out that that some agencies cannot yet be relied on to fulfil their commitment to official information principles.

We remain of the view that there should be statutory requirements about the collection of statistical data. For review to be effective we believe there must be a clear obligation on agencies to keep certain statistics and for the oversight office to have authority to request this information and be required to maintain and consolidate data about the operation of official information across government and local government. We favour the use of regulations to set out what statistics should be kept by agencies.

Oversight of training for officials

The application of the official information legislation is core work for officials in all central and local government agencies. The two overriding principles ˗ that information should be made available unless there are valid withholding grounds under the Act and that all requests for information, however formulated, are covered by the Act ˗ apply to all the information held by officials and determine how they manage that information. Training and supervising staff so that they apply these principles properly in the course of routine daily work is therefore also a routine management function.

Our impression from the submissions is that a few agencies do not regard official information as integral to their work but as an add-on regime for responding to requests, sometimes a rather irritating add-on. The submissions also suggest that training is sometimes insufficient or done in an ad hoc way. A consistent theme of submitters in regard to many issues, particularly coming from requesters, is that some officials do not understand their responsibilities and do not apply the legislative provisions correctly.

The submissions indicated that some agencies do incorporate official information training within their general or induction programmes, and several supplement basic training with in-house seminars or sending staff on external training. A few commented that training is a function that agencies and local authorities are already required to carry out. On a positive note the great majority of submitters, whether requesters or officials, see training of officials to maintain skill levels as very important and agree with the issues paper’s suggestion that the provision of training for officials should be a statutory function.733 Submissions from the Ombudsmen and Privacy Commissioner are supportive of such a statutory function.

The Ombudsmen’s Office is sometimes asked to participate in training or to provide training materials and the important contribution the Office has made to training is greatly appreciated by agencies. In our view the Office of the Ombudsmen should continue to act as expert advisers for training programmes. But the responsibility for training of officials does not rest with the Ombudsmen, who are officers of Parliament not public sector bodies. The responsibility lies with the management of central or local government agencies.

Submitter comment reflected the need to be realistic about what can be achieved and about the costs. Several thought that if training were a statutory function more funding would be required. We suggest only that the oversight body should have a function to develop and co-ordinate best practice training and to promote consistent standards within agencies. The generic nature of the training required should lead to efficiencies of scale by one office having responsibility for oversight and monitoring the effectiveness of training programmes. This should save costs for agencies as well as encourage consistency and best practice across agencies. We envisage that the choices about application of resources to training would continue to be with agencies and local authorities.

Oversight of guidance for requesters

Most central and local body agencies field large numbers of inquiries from the general public and have telephone services to respond as effectively as possible to general requests for assistance. Most agencies also provide user-friendly and helpful online advice about their work and the legislation they administer.

Despite this, the submissions suggest that requesters do not find it easy to find out their rights under the official information legislation and to understand how best to advance their particular queries. The website maintained by the Office of the Ombudsmen, almost the only source of detailed information at present, is not particularly user friendly for lay readers. Nor is that its primary purpose.

Comments from submitters in response to questions in two other chapters in the issues paper are relevant here. In Chapter 2 of the issues paper, entitled Decision-making, we asked whether there should be a dedicated and accessible official information website.734 This option was strongly endorsed by submitters, who made some detailed comments mentioning the need for very effective search capacity and organisation of material. Some supported the idea of a site that provides a portal to other information, others that the site should be a central repository of information including statistics on complaints, alerts and the ability to lodge requests or complaints. In this report, we recommend that an accessible website should be established containing the guidance from the Office of the Ombudsmen and the agencies that administer the OIA and LGOIMA.735

In Chapter 9 of the issues paper, entitled Requests, we asked whether there should be more accessible guidance for requesters.736 There was also overwhelming endorsement of this, with comments again mentioning options such as linked websites or a central website, provision of plain English guidelines, a standard form for making requests and the ability to talk to people in agencies.

In response to these submissions, we see provision of accessible guidance for requesters on a dedicated website as an important function that belongs with the oversight office, in collaboration with agencies. We think design and presentation of the website should focus on assistance for the general public, and for requesters in particular.737 This would complement the Ombudsmen’s website which focusses on the interpretation of the legislation and is probably primarily used by officials and professionals. We envisage that entry level guidance for requesters would draw on material from the Ombudsmen website but, as with the training of officials, we see assistance for requesters as a core responsibility of government and local government not the Ombudsmen. There are many examples of interactive, user friendly websites provided by central and local government agencies in New Zealand, and of excellent freedom of information websites provided in overseas jurisdictions.

The oversight office could also maintain a user friendly telephone service. Experience shows that a really accessible website removes the need for many inquiries and can also guide staff answering calls, but it does not negate the need for a one-stop telephone number.

Annual report

We envisage that the oversight office or office holder would report annually on the operation of the official information framework across government and local government. This provides an avenue for publicity about progress as well as about problems, and enables successive governments to participate in improving the operation of the official information legislation.

Most submitters did not see benefit in an annual report to Parliament. Some queried whether Parliament would engage with an annual report or asked how this would improve productivity and access to information. Others point out that the Ombudsmen can already report to Parliament on egregious problems they encounter. Whether the report is to a responsible Minister or to Parliament will depend on the status given to the oversight office or office holder.


Summary of oversight functions

We share the very natural caution of agencies about changes that may introduce more compliance costs with little benefit to productivity, and have carefully examined our proposals in that light. We see the proposed functions as largely facilitative. This is appropriate given the autonomous nature of local authorities and the established accountabilities of central agencies. The provision of informed policy advice, co-ordinated guidance for development, participation in whole-of-government planning, promotion of best practice, assistance with training and guidance for requesters are all functions that will support agencies and also relieve them of some costs.

While the proposed functions are largely standard for the provision of any government services, as we have seen historically there have been some gaps in relation to the delivery of official information. We consider this is the minimum oversight necessary to both implement amendments that will make the legislation more robust and efficient and to guide the provision of official information into the digital age. Leadership and tools that can promote a collaborative whole-of-government approach will be required in this rapidly changing environment. Retaining the current fragmented approach will be less efficient and more costly in our view.

The following recommendations summarise the oversight functions we propose should be introduced.

R107The OIA and LGOIMA should include the following functions so as to provide leadership and whole-of-government oversight, and to promote the purposes of the legislation: policy advice; review; statistical oversight; promotion of best practice; oversight of training; oversight of requester guidance and annual reporting.

R108The policy advice function should cover all official information related policies and legislation and should include:

(a)co-ordinating official information policy and practice with other government information management and pro-active information release policies;

(b)advising on the regulation of official information as appropriate and as referred by government;

(c)advising on official information aspects of new legislation and the establishment of new public agencies; and

(d)advising on any matter affecting the operation of the official information legislation.

R109The operational review function should include:

(a)receiving and investigating complaints about the operation of the legislation;

(b)reviewing agency practice in relation to certain aspects of the legislation;

(c)undertaking a five year review of the operation of the official information legislation, aligned with reviews of the Privacy Act 1993 and the Public Records Act 2005.

R110The statistical oversight function should include ensuring essential statistics about the operation of the official information legislation are collected and maintained. A new statutory provision should state that regulations may be made specifying which statistics must be kept by agencies.

R111The promotion of best practice function should include developing best practice models and cross-agency guidelines.

R112The oversight of training function should include providing and co-ordinating assistance to agencies to deliver training.

R113The oversight of requester guidance function should include ensuring that appropriate assistance is available to requesters, such as by way of a dedicated website.

R114The annual reporting function should include making an annual report to the relevant Minister on the operation of official information legislation.

Issues Paper at [13.86].

Privacy Act 1993, s 13(1)(l).

Issues Paper at [13.88].

Law Commission Alcohol in our Lives: Curbing the Harm (NZLC R114, 2010) at [10.49].

Issues Paper at Q97.

Public Records Act 2005, s 11(1)(a).

OIA, s 4(a).

Privacy Act 1993, s 13(1)(a).

Health and Disability Commissioner Act 1994, s 14(1)(c).

See Cabinet Declaration on Open and Transparent Government Minute of Decision, above n 690; State Services Commission New Zealand Government Open Access and Licensing framework (NZGOAL) (August 2010).

Privacy Act 1993, s 13 (1) (f), (o).

See <>.

Chapter 12.

Chapter 8.

Health and Disability Commissioner Act 1994, s 14(1)(l).

Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 (NZLC IP17, 2010) at 159.

Privacy Act 1993, s 26.

See Office of the Privacy Commissioner Necessary and Desirable: Privacy Act 1993 Review (Wellington 1998), and subsequent supplements.

Law Commission, above n 725, at 160.

Nicola White, above n 698, at 51.

Public Records Act 2005, s 17(1).

Issues Paper at Q94 and Q95.

In the UK certain agencies are required to keep statistics on non-routine requests for information. The 2008 Annual Report on FOI produced by the Ministry of Justice states that ‘non-routine’ requests are those which it was necessary to take a considered view on how to handle the request under the terms of the FOI legislation and the FOI officer in the agency was notified of the request and it was logged as such. Ministry of Justice (UK) Freedom of Information Act 2000 – Fourth Annual Report on the operation of the FOI Act in Government in 2008 (London, June 2009) at 37.

Issues Paper at [13.36].

Issues Paper at Q13.

Chapter 2, R6.

Issues Paper at Q47.

The existing website, maintained by the Government Chief Information Officer, may be a starting point for such a facility.