Chapter 14: Scope of the Acts

Excluded Information

By and large the OIA and LGOIMA apply to any information held by the agencies subject to them. This includes even information which is not in documentary form. A judge has said it includes “any knowledge however gained or held”.789 Categories of information are not excluded, in contrast to Australia where, for example, any document which has gone before Cabinet is automatically outside the scope of the Act.790 In New Zealand, the case-by-case approach applies. If information can be withheld, it is not by virtue of its category but because, in the circumstances, a withholding ground has been made out in relation to the information it contains.

Although this is generally true, however, it is not absolutely true. Certain Acts impose obligations of secrecy on agencies in relation to certain types of information: the Statistics Act 1975 in relation to the contents of census forms, for instance.791  Moreover the OIA itself excludes certain categories of information from the reach of the Act. They include information which is held by an agency solely in its capacity as an agent or for the purposes of safe custody for a person who is not within the Act;792 information held by the Public Trust or the Māori Trustee in their capacity as a trustee;793 evidence given or submissions made to a commission of inquiry;794 information in any correspondence between the agency and the Office of the Privacy Commissioner or the Ombudsmen relating to an investigation;795 information in a victim impact statement;796 and information which could be sought under the Criminal Disclosure Act 2008.797

We queried in the issues paper whether there were other categories of information that should be excluded from the coverage of the Act. The advantage of this is that it creates certainty and eliminates the need for the exercise of individual judgement. The disadvantage is that rigid exclusions would mean that in a particular case information could be withheld even if there were no sensible reason for doing so, and even if other elements of public interest were in favour of its disclosure.

Two possible categories for exclusion that were identified in the issues paper were “informal information” (for example, email trails or draft papers) and “third party information” (that is, information held by an agency which relates solely to, and may have been provided by, a private entity not subject to the Act). We deal with the second of these categories in chapter 5 which discusses the commercial withholding grounds. The other proposed category, “informal information”, merits brief discussion here.

As we noted in the issues paper, modern information technology means that many agencies hold a vast supply of information of an informal kind, some of which is of the barest relevance to any matter of public importance, and numerous superseded drafts of documents containing tentative provisions which have long since ceased to represent the views of anyone. However, there was little support amongst submitters for excluding informal information from the scope of the OIA.

Most submitters agreed with our view that it would be difficult to draw the line between formal and informal information.798 In addition, even draft documents may shed light on the genesis of a decision that has been made. As noted by the Ombudsmen, this material “may provide a useful backdrop to the decision, improving public understanding of it, and facilitating public participation in the decision-making process”. Finally, there is a risk that, if drafts were to be excluded, documents might too often be alleged not to have proceeded beyond the draft stage. Information may sometimes be justifiably disposed of under the Public Records Act 2005 if it complies with an authority to dispose. But beyond that, we do not think the OIA should place any further restrictions on what may be withheld.

Commissioner of Police v Ombudsmen [1985] 1 NZLR 578 (HC) at 586 (Jeffries J).

Freedom of Information Act 1982 (Cth), s 34.

See the other examples in John Burrows and Ursula Cheer Media Law in New Zealand (5 ed, Oxford University Press, Melbourne, 2005) at 541–547.

OIA, s 2 definition of “official information”, para (f).

Para (g).

Para (h).

Paras (i) – (j).

Para (k).

Section 18(da).

In addition, agencies will not necessarily need to retain informal information to meet the requirements of section 17(1) of the Public Records Act 2005, which requires agencies to maintain “full and accurate records” of their affairs.