Chapter 13: Oversight of official information legislation

Assigning the oversight function

Our strong recommendation is for one agency to have leadership and oversight responsibility for the functions listed above. This excludes the complaints and guidance functions which we recommend should remain with the Ombudsmen.

In the issues paper we asked open questions about which agency should be responsible for the oversight role, including the option of establishing a new Information Commissioner’s Office. We expressed a preference for the functions to be shared between the State Services Commission and the Department of Internal Affairs in response to their responsibilities at that time. The leadership role of E-government programmes across the state sector was then with SSC.

This division of responsibilities is no longer our preference. We now favour combining the OIA and LGOIMA into one statute.738 Also, since publication of the issues paper, the functions of DIA and SSC have changed. Government information management structure is now centralised in DIA, where the position of Chief Government Information Officer has been established.

Submitter views

There was not a large response to questions in the issues paper about responsibility for the oversight function. Preferences for the choice of agency were spread fairly evenly between the Ombudsmen, SSC, DIA and an independent Information Commissioner. One submitter made a case for the Chief Archivist to have an oversight function for both the functions of the Public Records Act 2005 and the official information legislation, possibly as an independent Crown Entity or Officer of Parliament.

The option of an Information Commissioner did not attract a lot of interest from submitters and views were fairly evenly divided, with twelve against and nine in favour. One submitter set out strong reasons for establishment of an Information Commissioner with functions aimed at achieving coherent information policy on a whole-of-government approach and focussing on future needs, transparency around funding and support, and more efficient delivery of training. Most support came from the requester side, including the media organisations, but with some doubt expressed about whether there would be adequate funding.

The Ombudsmen see consistency of approach as a key benefit in vesting all functions in one agency. They recognise independence and long term commitment as good arguments for creating a new agency such as an Information Commissioner with joint oversight of OIA and LGOIMA, and think this would also increase the prominence of freedom of information in New Zealand. They also suggested another alternative – re-establishment of the Information Authority which was originally charged with the oversight functions under consideration.

We asked in the issues paper whether, if an Information Commissioner were appointed, the person should operate in a stand-alone organisation or as part of another agency.739 Again there was little response but ten submitters expressed clear support for the stand-alone option, one commenting that the position would not have enough clout from within an agency. A few thought it could be a separate function of the Ombudsmen’s Office and one thought the position could incorporate the Privacy Commissioner.

 

Office of the Ombudsmen

The issues paper discussed whether it would be appropriate for the Ombudsmen to take on the oversight role.740 As we have seen, the Ombudsmen increasingly deal with systemic issues and foster state sector capability, and their submission pointed out that they offer some of the same advantages as an independent Commissioner. An important question is how compatible the oversight role is with their complaints jurisdiction.

Overseas there are models where a complaints investigation function sits in the same organisation as the policy and regulatory functions, but these are not necessarily parallel with the situation in New Zealand. The UK Information Commissioner’s Office, for example, encompasses jurisdiction for data protection complaints (equivalent to our privacy statute) as well as freedom of information but the decisions are not final as they can be appealed to a tribunal. In Tasmania, at the other end of the scale, the Ombudsmen holds both the complaint and oversight roles but the operation of the freedom of information legislation covers only the state government and is a much smaller operation than in New Zealand.

We see the roles of government and the Ombudsmen in relation to the legislation as separate but complementary. The primary role of the Ombudsmen is to investigate complaints in relation to the specific application of the legislation by agencies and make recommendations. This is an independent and semi-judicial function. Although the Ombudsmen’s focus is on individual noncompliance, their investigations and recommendations can inform the managers who have the responsibility for maintaining performance standards for this core responsibility. As well as potentially conflicting with their independent complaints function, it also seems unreasonable to expect the Ombudsmen to have a responsibility for oversight and policy development in relation to the far reaching changes in information technology and management of those changes by Government.

On balance, we do not favour the Office of the Ombudsmen taking on the oversight role. We consider that the role of the Ombudsmen in investigating complaints and providing interpretative guidance on the legislation is complementary to, but should remain separate from, responsibility for oversight of the operation of the legislation.

 

Independent Information Commissioner

Many jurisdictions overseas have appointed independent Information Commissioners to oversee freedom of information legislation. There is considerable variety in both the structure and responsibilities of Information Commissioners internationally. In some places the Information Commissioner has a determinative role in handling complaints and some FOI Commissioners are part of an umbrella information commission with oversight of other information legislation, such as privacy and public records. Independence from government is a common feature.

In 2010 Australia established the Office of Information Commissioner in relation to the federal government and in five Australian states the freedom of information statutes are now overseen by an independent commissioner. A summary of different models overseas is provided at the end of this chapter. Our existing Privacy Commissioner is a model similar to the Australian Freedom of Information Commissioners. Former Justice of the High Court of Australia, Michael Kirby, has been a strong advocate for independent oversight of freedom of information matters. He said in relation to developing the Australian Freedom of Information Act:741

It is vital that someone or some agency…should be more closely monitoring the experience under the FOI Act. Otherwise, the preventive value of legislation of this character would be lost, in a concentration of effort on simply responding to individual claims. We should aggregate experience and draw lessons from it.

The reasons given for creating a position of Information Commissioner in New South Wales in 2010 are helpful for our consideration of the issues. They relate to independence, accountability, and guardianship, in that the Commissioner is the public proponent of the objects and intentions of the official information system.742 It was said that the establishment of an independent office raises the profile of official information amongst agencies and the community, and incentivises agencies to accord higher priority to official information matters. Creation of an independent office holder who can speak out on matters of access to official information, and promote its cause, is seen as more effective than an oversight body housed within a government agency that may be less willing, and indeed constitutionally less able, to hold the government to account for shortcomings in the operation of the legislation.

A factor against creating an independent Information Commissioner at this time of economic restraint is the financial cost of setting up and maintaining a new office. The proliferation of agencies in the New Zealand state sector is also a long standing concern, indeed as far back as when the five year Information Authority was created in 1982.743 These concerns are still relevant today when a whole-of-government approach is seen as more likely to enhance efficiency.

 

In-house Statutory Information Officer

Some of the advantages of an independent information commissioner model can be realised by the establishment of a statutory position in-house. Statute can ensure that the officer has policy and operational independence but the officer could be positioned in an agency where economies of scale can be achieved with support from existing resources and the functions combined with related work. The position would have obvious synergy, for example, with the role of the Chief Archivist.

A factor favouring the creation of a new statutory office is that statute can clarify the differences between local authorities and central agencies, and the independence of local government from central government. Another reason is the greater likelihood of long term stability. We have seen that since the Information Authority expired, oversight responsibilities have been abolished, diminished and fragmented between agencies as priorities altered. Restructuring of functions within agencies is an ever present reality. A statutory office, although situated inside an existing agency, would have greater assurance of permanence.

Short-term Information Authority

Another option that could be considered in light of the particular need for these functions to be undertaken at this stage in conjunction with other information developments, would be to establish an independent authority or taskforce for a specific term, rather than on an ongoing basis. This might be a stand-alone independent body such as the original Information Authority, or encompassed within an existing government agency, perhaps with cross-agency secondment. Such a unit might have a wider brief and include implementation and co-ordination of other new information initiatives as well as oversight and implementation of changes to official information legislation.

Our view

We do not express a strong view as to where the oversight function should sit, but we do have a strong view, based on past experience, that it should not be divided between several agencies. We see the relative lack of effort to develop best practice cross-agency standards for official information in both central and local government sectors as stemming from fragmented responsibilities. We have also found that separation of official information oversight from information management and new technology developments has led to a lack of awareness of the close connection between the existing legislation and these developments. Our view is that assigning oversight functions for official information to one office, thus providing leadership and co-ordination, will assist agencies to be more effective than at present.

Ministry of Justice

The Ministry of Justice must be considered as a possible location for the oversight role. The Ministry currently administers the OIA and it also has an important role in providing policy advice on constitutional and public law matters, a watchdog role that can be seen as encompassing official information. We see the Ministry as continuing to bring a public law perspective to policy relating to official information but also see arguments against the oversight role being located there. It does not have a significant role in local government as it only administers the OIA not LGOIMA. Nor is it centrally involved in government information policy and, in our view the oversight role will to a significant extent set the OIA and LGOIMA in this much wider context. What is problematic and requires attention is alignment of the official information legislation with government wide information technology initiatives and policies.

Department of Internal Affairs

The Department of Internal Affairs (DIA) is also a possible home for the oversight role as it is now positioned to play a greatly enhanced leadership role in relation to the official information initiatives described in the Chapter 12 and in wider government information policy and practice. Placement here would more easily align the official information legislation with pro-active release initiatives underway. It would also accord with DIA’s existing relationship with local authorities under the LGOIMA and with its responsibility for the Public Records Act 2005. Our view is that the benefit of having oversight functions with an agency responsible for overall information management is a significant factor.

State Services Commission

As one of the three central government agencies that oversee the entire state sector, the State Services Commission (SSC) is a possible home. SSC is responsible for ensuring that the state sector is efficient, provides value for money, and effectively delivers services to the New Zealand public. A very wide range of central agencies comprise the state sector and are subject to the OIA but SSC has no formal responsibilities for local government. Our suggestion in the issues paper that the SSC could share the oversight functions with DIA was largely based on its then leadership of E-government across the state sector, which has now moved to DIA.744 Oversight of official information nevertheless has some similarity with the overarching responsibilities of SSC as recognised with the original placement of certain OIA responsibilities there.

 

Information Commissioner

We see the option of a stand-alone independent Information Commissioner as being the most robust and effective option. An Information Commissioner could be appointed for a specific term or for terms aligning with other similar appointments. This view is tempered, however, by the fact that we must also consider what is realistic given the size of New Zealand and the current fiscal stringency.

Conclusion

Our starting point is that the official information function in New Zealand’s central and local government is large enough to warrant ongoing independent oversight and that this is in fact overdue. We consider that independent oversight of the official information legislation is constitutionally significant for our democratic framework and complementary to the individual complaint function of the Ombudsmen. The oversight functions we propose – policy development, operational support and performance review – would align New Zealand with the situation in Australian states and the Commonwealth Government following their recent overhaul of freedom of information responsibilities.

We also consider that the oversight functions we have described are required on a permanent basis, as part of the wider framework for management of public information. We do not therefore favour appointment of another temporary Authority or Taskforce to undertake these functions.

New Zealand is not so large, in our view, that a new structure entirely distinct from existing management frameworks is absolutely necessary. What we see as critical is that the oversight function is established by statute and carried out by a statutory office holder. With these protections in place the office might well be located within a government department. Nor do we see location within a central government agency as incompatible with the autonomy of local authorities, provided that the office has a facilitative role and provides independent advice relating to the purposes of the legislation. Co-location could enhance collaboration between other information management responsibilities, and we earlier noted close links with the functions of the Chief Archivist who also has oversight responsibilities for both local and central government agencies.

We suggest that the ongoing cost of an independent statutory office should be weighed against the ongoing protection it gives our democratic system of government and the rule of law; and in light of potential savings to agencies by avoiding duplication of policy advice and standardising operational activities such as training and in-house systems.745

Deciding the best option for establishing the oversight function will require advice and input from a wide range of people and agencies. The Law Commission does not make a definitive recommendation on which existing agency should include the new statutory office, or whether a standalone Information Commissioner should be established. We see those choices as relating to broader structural objectives in the information management sector.

We recommend that the following five principles should guide Government decisions in relation to establishing effective oversight of the operation of official information legislation:

(a)The first principle is that responsibility for the oversight policy and operational functions should be with one office or office holder;

(b)The second principle is that the oversight responsibility should be vested in a statutory officer to ensure the responsibility is resourced and carried out appropriately;

(c)The third principle is that the statutory office or officer holder should be accountable to the purposes of the official information legislation in providing policy or practice advice to Government, as are other statutory officers with responsibilities for specialist legislation;

(d)The fourth principle is that the statutory office or office holder should be integrated with the wider strategic management of government held information; and

(e)The fifth principle is that the the statutory office or office holder should be established on an ongoing, not short term, basis to ensure that the official information legislation continues to operate efficiently and effectively within the wider information sector.

R115The oversight function should be established in accordance with the following five principles:

(a)Responsibility for oversight of the OIA and LGOIMA should be vested in a single office or office holder.

(b)The office or office holder should be established by statute.

(c)The statutory office or office holder should be accountable to the purposes of the official information legislation when providing advice to government.

(d)The statutory office or office holder should be integrated into the wider strategic management of government-held information.

(e)The statutory office or office holder should be established on an ongoing, not short-term, basis.

Chapter 16.

Issues Paper at Q103.

Issues Paper at [13.100].

Justice M Kirby “Information and Freedom” (The Housden Lecture, Melbourne, 6 September 1983) at 11.

New South Wales Ombudsmen Opening Up Government: Review of the Freedom of Information Act 1989 (Sydney, February 2009) at ch 9.

See State Services Commission Reviewing the Machinery of Government (Wellington, February 2007) at 18.

Issues Paper at [13.99].

The NSW government elected to create an independent office of Commissioner, contrary to the recommendations of the Ombudsman, stressing that the benefits would outweigh the costs.