Chapter 13: Oversight of official information legislation

Management of official information legislation

The original scheme

The Danks Committee, aware of the part oversight and education had to play in ensuring the official information system operated effectively, proposed responsibilities for three key institutions:692

(a)The State Services Commission would have an advisory and coordinating role for state sector agencies through a dedicated information unit;

(b)The Ombudsmen would receive and investigate complaints about official information access decisions; and

(c)The Information Authority would oversee the overall system and be responsible to Parliament for keeping the operation of the Act under review, in particular by developing guidelines or rules as to when and how particular categories of information should be made available.

The Committee saw effective operation of the legislation as requiring these distinct functions on an ongoing basis, although the workload might alter over time. As passed, however, the OIA included a sunset clause for the Information Authority after five years. In reporting the Official Information Bill back to the House, the Chair of the Select Committee, Paul East said:693

It was felt that by the end of a 5 year period there would be sufficient experience of the scheme and operation of the Act to do without the monitoring role of the authority, however essential that may be in the first few years.

The responsibilities of the Information Authority were not transferred to any other agency so its oversight and monitoring functions expired on 30 June 1988.

State Services Commission

As the original administrator of the OIA, the State Services Commission set up a dedicated information unit to provide assistance and advice to other agencies and also produced the Directory of Official Information. Since 1988 it has had no specific statutory functions under the OIA and has played only a limited role relating to its mandate as overseer of the public service. Most of its guidance has been limited to events such as general elections and been sporadic in nature. A more enduring guideline was issued in 2002 on the topic of consultation and transfer of requests between Ministers and Departments.694

The Ministry of Justice

The Ministry of Justice currently administers the OIA, along with many other statutes. In practice this means the Ministry must be consulted about proposed legislative amendments and may take the lead role in issuing drafting instructions.695 The Ministry also has two statutory functions under the OIA – it must “cause to be published” the Directory of Official Information and update it at two-yearly intervals,696 and it can provide advice and assistance to other agencies:697

The Ministry of Justice may, for the purpose of assisting any other department or any organisation to act in accordance with this Act, furnish advice or assistance or both to that other department or that organisation.

No submitters mentioned this advice provision and its discretionary nature is significant. Nicola White found that the provision “has not been treated…as giving any particular mandate or responsibility to engage in general training or education work across the state sector.”698 The Ministry has published administrative guidelines, approved by Cabinet, in relation to charges for the provision of official information, the most recent dated 2002.699 A power in section 47(d) to make regulations prescribing reasonable charges for the purposes of the OIA has never been used.

Department of Internal Affairs

The Department of Internal Affairs (DIA) manages the central Government’s relationship with local government bodies and administers the LGOIMA and the Local Government Act 2002. It exercises a limited role in relation to the LGOIMA and the day-to-day running of local government, reflecting the approach of the Local Government Act 2002 which saw devolution of authority to local government bodies.

2011 saw significant structural changes in DIA which potentially impact on the official information function in both the OIA and LGOIMA. The Chief Executive of DIA became the Government Chief Information Officer (GCIO), with the role of providing leadership on information and communications technology (ICT) matters within government. In addition the National Library of New Zealand and Archives New Zealand were amalgamated into the Department. Public records provide the foundation for access to official information and Archives has responsibility for the maintenance of official records under the Public Records Act 2005.700

The Ombudsmen

The OIA and LGOIMA grafted a complaints jurisdiction onto the Office of the Ombudsmen’s original jurisdiction as established under the Ombudsmen Act 1975. This is their sole statutory responsibility in relation to official information. Ombudsmen do not have any specific requirements to carry out promotion, oversight, support or training in relation to official information.

In practice, however, the Office of the Ombudsmen carries out a range of activities to support official information in recognition that this work needs to be done. As noted on their website, the Ombudsmen carry out training because:701

[a]n improved understanding of the Ombudsmen’s role and associated legislation is expected to contribute to better decision-making and to fewer complaints being lodged with government agencies and our office.

In their 2011–14 Statement of Intent, the Ombudsmen state that:

To deal effectively with official information complaints the Ombudsmen will:

·investigate and review Ministerial and agency decisions on requests for official information;

·form opinions on whether Ministers and agencies have complied with their obligations under the official information legislation and make necessary recommendations;

·report on and monitor the implementation of the Ombudsmen’s recommendations;

·promote the proactive disclosure of official information where appropriate to reduce the administrative burden and transaction costs of reacting to individual requests for similar information;

·contribute to the Law Commission review of the official information legislation.

The 2010/11 Annual Report lists six outcomes and impacts sought by the Ombudsmen, one being:

Improved capability of state sector agencies in administrative, decision making and complaints handling processes and operation of official information legislation.

The Report notes that the Office conducted 29 workshops and training seminars around New Zealand, including training on the requirements of the official information legislation, and they advised on 35 legislative, policy and administrative proposals relevant to the Ombudsmen’s jurisdiction, also including the official information legislation. On 43 occasions, the Office provided advice to agencies on the types of considerations they ought to be taking into account in responding to official information requests.702

The Law Commission applauds the work of the Ombudsmen in upholding the official information legislation and assisting the public and agencies further than the legislation requires of them. Our review must, however, consider whether the Office of the Ombudsmen is the most appropriate body to carry out all the oversight functions related to the official information legislation or whether some of the load should be carried elsewhere.

Cabinet Office

The Cabinet Office has an influence on the way official information is handled because the Cabinet Manual contains substantive guidance on aspects of the OIA relating to Cabinet and Ministers.703 The Manual provides a broad overview of sources of further guidance (including the Practice Guidelines and Ombudsmen Quarterly Review) as well as its own substantive advice about the release of official information.

The Information Authority

The Information Authority was seen by the Danks Committee as a crucial part of the official information framework. In light of our consideration of the oversight functions, it is helpful to look at the original discussion recommending establishment of the Information Authority and the legislative provisions setting out its functions.

In its General Report, the Danks Committee strongly recommended setting up an “independent body of sufficient status” to be responsible for oversight of the new official information regime, seeing it as “integral” for an agency outside the normal administration and executive government to keep the OIA under review and report on its progress to Parliament.704 In its Supplementary Report, the Committee described two functions for the Authority which they considered of primary importance.705

(1) A regulatory function: to receive submissions, and conduct hearings; to establish guidelines and criteria for administrative action; to define and review categories of information for the purposes of access and protection;

(2) A monitoring function: to keep under review the Official Information Act and other legislation and practice in the general information field and to recommend changes to the Government or other appropriate body, and to report to Parliament;

These regulatory and monitoring functions constituted the Authority’s main task of implementing the legislation fully by making recommendations about the scope of the Act and clarifying various questions about how the OIA should interact with other legislation. The Authority was expected to take up hard issues as they emerged and develop categories and rules on how and when information of that type should be made available. The ability to develop categories was described by the Danks Committee as “central to the gradualist approach we have recommended”706 but, as Nicola White notes, the original concept of an ongoing regulatory function to provide a framework for application of the OIA’s broad criteria has effectively vanished from discourse on the Act.707

To some extent, our recommendations in Chapter 2 for the Ombudsmen to identify themes and provide guidance drawn from previous cases, particularly in regard to commonly recurring situations, are in line with the original vision of the Danks Committee approach to streamline case-by case consideration of requests. But this will not assist with the application of the OIA to new situations where regulatory guidance may be useful. This kind of work has not been carried out consistently since the Authority was abolished in 1988, and in our view is now overdue.

Under the original provisions in the OIA the Authority was given very broad oversight and review functions.708

38.Functions and powers of Authority – (1) The principal functions of the Authority shall be-

(a) To review, as a first priority, the protection accorded to official information by any Act with a view to seeing whether that protection is both reasonable and compatible with the purposes of the Act:

(b) To define and review categories of official information with a view to enlarging the categories of official information to which access is given as a matter of right:

(c)To recommend the making of regulations prescribing –

(i)Categories of official information to which access is given as a matter of right; and

(ii)Such conditions (if any) as it considers appropriate in relation to the giving of access to any category of official information.

(2)The Authority shall also have the following functions:

(a)To keep under review the working of this Act and the manner in which-

(i)Access is being given to official information;


(ii)Official information is being supplied:

(b)To recommend to any Department or Minister of the Crown or organisation that the Department or Minister of the Crown or organisation make changes in the manner in which it or he gives access to, or supplies, official information or any category of official information:

(c)To receive and invite representations from members of the public, and from Ministers of the Crown, Departments, and organisations, in relation to any matter affecting access to or the supply of official information:

(d)To inquire into and report on the question whether this Act should be extended to cover information held by bodies other than Departments, Ministers of the Crown, and organisations:

(e)To inquire generally into and report on any matter, including any enactment or law, or any practice or procedure, affecting access to or the supply or presentation of official information.

During its short term the Authority produced a very considerable body of work for an office of its size, reflected in amendments to the OIA and repeals and amendments to various legislation that contained secrecy provisions. It also carried out research on protecting the personal information of individuals and published an issues paper and later a report discussing how the OIA should deal with access to personal information.709 It made recommendations relating to the scope of the OIA which resulted in hospitals, schools and universities coming under the Act, and worked on remission of charges, criminal sanctions and third party access rights.

It is worth noting that an equivalent body did not exist to oversee the implementation of the LGOIMA. That Act has never benefited from dedicated monitoring or systematic review, other than indirectly through the work of the Information Authority on the OIA.

Committee on Official Information Towards Open Government: General Report (Government Printer, Wellington, 1980).

Committee on the Official Information Bill (1981) “Official Information Bill: Report of the Committee on the Bill” 449 NZPD 5042 (30 November). The Committee sat for over a year and received more than 100 submissions.

State Services Commission Release of Official Information: Guidelines for Coordination (Wellington, October 2002) <www>.

In the past 30 years there have been few reviews or policy changes to official information legislation and none undertaken by the Ministry of Justice.

OIA, s 20. The Directory is discussed in more detail above at [12.87]-[12.90] in the context of proactive disclosure requirements.

OIA, s 46.

Nicola White Free and Frank: Making the Official Information Act 1982 Work Better (Institute of Policy Studies, Wellington, 2007) at 46.

Ministry of Justice Charging Guidelines for Official Information Act 1982 Requests (March 2002). Charging is discussed in more detail in chapter 10.

The Public Records Act 2005 is discussed in more detail in chapter 15.

See <>.

Office of the Ombudsmen Annual Report 20010/2011 (Wellington, July 2011) at 42.

Cabinet Office Cabinet Manual (Department of the Prime Minister and Cabinet, Wellington, 2008) Part 8.

 Committee on Official Information, above n 692, at 31.

Committee on Official Information Towards Open Government: Supplementary Report (Government Printer, Wellington, 1981) at 15.

At 19.

Nicola White, above n 698, at 28.

OIA, s 38, expired 30 June 1988 under OIA, s 53.

The Information Authority Personal Information and the Official Information Act: An Examination of the Issues (Wellington, 1985). Principles for the protection of personal information were subsequently enacted in the Privacy Act 1993.