Chapter 14: Scope of the Acts

 

Which agencies should be subject to the Acts?

Which agencies should be subject to the OIA (and LGOIMA) and which should not does not admit of as clear-cut an answer as one might wish. At one end of the spectrum it is clear enough: Ministers, government departments, crown entities and local authorities should certainly be covered. But there is a spectrum, and it is not an easy matter to determine where the line is to be drawn.

It is a problem worldwide. A survey from Canada says:759

The dilemma of determining which entities should be covered by freedom of information laws is the most complex, amorphous and perplexing topic for FOI theory and practice.

The difficulty of drawing the line is apparent when perusing the present schedules. They contain what at first sight appear to be discrepancies and anomalies. They are not entirely easy to understand. There may in some cases be good reason for these differences, but they invite scrutiny to see whether that is indeed the case. For example:

(a)The Plumbers, Gasfitters and Drainlayers Board and the Building Practitioners Board are included, but not the Electrical Workers Registration Board.

(b)The NZ Security Intelligence Service and the Government Communications Security Bureau are subject, but not the Inspector General of Intelligence and Security or the Independent Police Conduct Authority.

(c)Council controlled organisations and licensing trusts are subject to the Act, but not port companies, even those which are more than 50 per cent publicly owned.760

(d)State Owned Enterprises are included, but not Air New Zealand, which is our national carrier, and in which the state has a majority shareholding.

(e)The Accounting Standards Review Board is included, but not the Council of Legal Education.

(f)The Abortion Supervisory Committee is included, but not Mortality Review Committees.

There is no single criterion for inclusion in the OIA and LGOIMA.

Some submitters to our issues paper took the view that receipt of any amount of state funding – “even one dollar’s worth of state funding” according to one submitter – should be enough. But that would mean that even private organisations which receive a government subsidy (private schools and the Royal Society, for instance) would be included. They are not, and we heard no suggestion that they should be.

Nor is establishment of an agency by or under statute a sufficient criterion. Companies and incorporated societies exist by virtue of statute, but are private enterprises and properly outside the reach of the OIA. Moreover some bodies subject to the OIA are not statutory: most importantly, Ministers and government departments, while recognised and regulated by statutes, are not established by them.

The performance by an agency of a public function is by itself not enough either. If it were, all energy and telecommunications companies would be subject to the OIA. A logical case for their inclusion could be made based on the significance of their impact on the lives and wellbeing of citizens, but many are private enterprises and it would be unrealistic to press for their inclusion.

So how is it to be decided whether or not to include an agency in the OIA or LGOIMA? Part of the answer is to be found in the purpose provisions of the two Acts, which emphasise the accountability of Ministers and officials, and the promotion of good government.

We think the most promising approach is that contained in the Legislation Advisory Committee (LAC) guidelines.761 The guidelines provide a list of factors, all or some of which should be present for an agency to be subject to the Ombudsmen Act, the OIA or LGOIMA. The factors are:

(a)the extent of the agency’s dependence on central government funding;

(b)the obligation of the agency to consult with the Minister on particular matters, respond to ministerial directions, or obtain ministerial approval;

(c)the existence of ministerial control over appointments in contrast to, for example, elected membership representing relevant interest groups;

(d)the existence of any government controls on finance, for example by the Auditor-General;

(e)the public purpose of the agency.

To take account of institutional developments in recent times we suggest that two further factors might be added to the LAC guidelines list:

(a)the degree of public ownership of the agency;

(b)the potential for decisions of the agency to impact on members of the public.

No one of these factors is decisive. Nor is it necessary that all the criteria be present. In any one case a combination of some or all of them will determine the decision. Strength in one may outweigh weakness in another. Decisions must be made individually as to whether a particular agency should be subject or not. An overall assessment of the factors is required. This is bound to leave some difficult decisions at the margins.

We recommend that the schedules to both the OIA and LGOIMA be gone through carefully to eliminate anomalies and bring within coverage organisations with such a relationship to central or local government that they should properly be included. Such an exercise is beyond the scope of this Law Commission project. We suggest that a working party be established for this purpose, led by the Ministry of Justice as the current administrator of the OIA with input from central and local government agencies. This exercise should preferably be undertaken before any new Act is introduced.

However, some bodies raise particularly difficult and important issues, and merit further discussion in this report.

R121The Ministry of Justice should convene a working group, including representatives from central and local government, to examine the schedules to the OIA and LGOIMA to eliminate anomalies and bring within coverage organisations with such a relationship to central or local government that they should properly be included.

Offices of Parliament

There are three Offices of Parliament in New Zealand: the Office of the Ombudsmen, the Office of the Controller and Auditor-General (OCAG), and the Parliamentary Commissioner for the Environment. Only the last is subject to the OIA. The reason for this is not readily apparent.

Office of the Controller and Auditor-General

The approach taken by overseas jurisdictions to the inclusion of their equivalent of the OCAG in freedom of information legislation differs. The United Kingdom includes the National Audit Office within the scope of its freedom of information legislation but exempts information from being disclosed if disclosure would, or would be likely to, prejudice the exercise of the Office’s audit function.762 The Auditor-General is excluded from the scope of the Australian Commonwealth legislation.763 Tasmania and New South Wales extend their legislation to the administrative functions of the Auditor-General.764

We cannot identify any issue of principle which leads to the conclusion that the OCAG (including Audit New Zealand) should be entirely excluded from the OIA. We think extending the scope of the OIA to include the OCAG, which itself plays an important role in New Zealand’s accountability arrangements, would provide an important signal about the role the OIA plays in holding public bodies to account. At least in respect of its administrative functions, including its use of public resources, the OCAG should be as accountable as any other public body. We shall return shortly to the question of which of the OCAG’s functions should be subject to the OIA.

 

Office of the Ombudsmen

For similar reasons, the Ombudsmen have suggested to us that consideration should be given to making them, at least in respect of their administrative functions, subject to the OIA. Information held by the Ombudsmen or other agencies in respect of the Ombudsmen’s investigative functions is explicitly excluded from the scope of the OIA.765

We agree that, in principle, extending the OIA to include the Ombudsmen’s administrative functions is appropriate. It does not send a satisfactory message if the Ombudsmen, the authority charged with holding other agencies to account under the OIA, are themselves completely exempt from it. We thus recommend that subject to the exceptions we discuss below, the Ombudsmen should be subject to the OIA.

The key difficulty is developing an appropriate mechanism for review of decisions by the Ombudsmen to withhold their own information under the OIA. In the United Kingdom, the Information Commissioner, who investigates complaints under the Freedom of Information Act but who is also subject to it, must investigate any complaints about himself or herself. This seems an uncomfortable position. The situation is slightly less problematic in New Zealand, because there is more than one Ombudsman. Nevertheless, we have some doubts about the desirability of an arrangement whereby one Ombudsman investigates the actions of another. Cases of complaints against the Ombudsmen for wrongly withholding information are likely to be very few. We think that when they arise the Speaker should be charged with appointing an independent person to investigate them.

Parliamentary Commissioner for the Environment

The Parliamentary Commissioner for the Environment is, and always has been, fully subject to the OIA. The Commissioner made a submission to our review noting the difficulties posed by, on the one hand, the obligation of openness in the OIA, and on the other hand, the obligation of secrecy imposed on her by the Environment Act 1986. She said that “the two sets of obligations appear to point in opposite directions”. We agree.

The Commissioner advises that confidentiality is essential for the effective conduct of many of her functions under the Environment Act. We accept that, and acknowledge that this is a feature of the position of all the Offices of Parliament. The question is how that should best be reflected in the OIA.

 

Excluded information

We believe that all three Offices of Parliament should be subject to the OIA. The question is how best to provide for that while at the same time protecting the confidentiality necessary for the proper performance of their functions, especially their investigatory functions. There are several options.

One would be to make them fully subject to the Act, and to rely on existing withholding grounds, and also the new ground we propose for material acquired in the course of an investigation or inquiry, to withhold information where these grounds are satisfied.

The second would be to make the Offices subject to the Act in relation to their “administrative” functions only.

The third would be to make the Offices subject to the Act, but to exclude from the definition of “official information” certain categories of information, in particular those which relate to any audit, assurance work, inquiry or investigation. We prefer this third avenue.

The first may not give sufficient protection. The second is imprecise: exactly what is encompassed by the term “administrative” is open to interpretation. The third is more in line with existing provisions of the OIA which exempt evidence provided to commissions of inquiry and the Judicial Conduct Commissioner, and also correspondence and communications (held by others) relating to investigations conducted by the Privacy Commissioner or the Ombudsmen.766 We recommend accordingly.

R122The Offices of Parliament (the Ombudsmen, the Office of the Controller and Auditor-General and the Parliamentary Commissioner for the Environment) should be subject to the OIA by inclusion in Schedule 1. Information relating to any audit, assurance work, inquiry or investigation undertaken by an Office of Parliament should be excluded from the definition of “official information” in section 2 of the OIA.

 

Parliamentary Counsel Office

In our issues paper, we proposed that the Parliamentary Counsel Office should be subject to the OIA. The Office is already subject to the Ombudsmen Act and already provides information on request. It is not clear why it is not presently subject to the OIA. The Chief Parliamentary Counsel agreed with the proposal in the issues paper, noting that several of the factors listed above in paragraph 14.19 apply to the Office. However, this agreement was subject to having adequate protection of the Office’s confidential communications with clients including, for example, drafting instructions and Bills. We believe these communications can be adequately protected by the existing grounds for withholding, in particular legal professional privilege,767 but the Legislation Bill 2010, which is currently before Parliament, provides desirable additional clarity on this issue.768 In the light of these protections, we recommend that the Parliamentary Counsel Office be made subject to the OIA.

R123The Parliamentary Counsel Office should be subject to the OIA by inclusion in Schedule 1.

Parliamentary agencies

The OIA was enacted to provide for accountability and transparency of executive government. However, the rationale of the Act applies equally to Parliament. Indeed the Danks Committee, while concentrating its focus on the Executive, expected that its proposals would in due course affect practice in relation to information generated and held by Parliament.

There are legitimate and significant public interests that weigh in favour of a principle of availability of information held by Parliament and its administration just as much as in the case of the Executive. These include the need to maintain openness and transparency in the expenditure of public money in order to maintain public confidence; to enable the public to hold elected representatives to account; and to allow for informed public debate.

In its 2010 review of the Civil List Act 1979, the Law Commission stated its reasons for recommending that the parliamentary administration come under the OIA. The Commission considered that such openness would encourage MPs to make better value-for-money choices. The Commission’s recommendations were consistent with the approach taken in the United Kingdom, India, Ireland and South Africa. The Law Commission recommended that:769

R5 The OIA should be extended to cover information held by the Speaker in his role with ministerial responsibilities for the Parliamentary Service and the Office of the Clerk; the Parliamentary Service Commission; and the Office of the Clerk in its departmental holdings.

 

R6 The OIA should not apply to:

·proceedings in the House of Representatives, or Select Committee proceedings; and internal papers prepared directly relating to the proceedings of the House or committees;

·information held by the Clerk of the House as agent for the House of Representatives;

·information held by members in their capacity as members of Parliament;

·information relating to the development of parliamentary party policies, including information held by or on behalf of caucus committees;

·party organisational material, including media advice and polling.

The effect of these recommendations would be, broadly, that information which related to Parliament’s use of public resources and its administrative functions would be subject to the OIA, while information that related to parliamentary proceedings, matters of political strategy or an MP’s activities, for example in dealing with constituents, would not.

In 2011 the Standing Orders Committee considered the Law Commission’s 2010 report.770 It noted, correctly, that a great deal of parliamentary information is already available to the public through avenues such as Hansard, broadcasting, and the common practice of select committees releasing all evidence received on an item of business. It pointed out that the estimates and financial review processes play an important role in ensuring transparency.

However, the Committee acknowledged the importance of openness and transparency, and considered how a freedom of information regime could be developed for Parliament. It was uncomfortable about any definition of “parliamentary proceedings” being included in the OIA; the concept is at the core of parliamentary privilege, and applies well beyond the narrow freedom of information context. The definition of “departmental holdings” is also uncertain. The Committee concluded that these definitional issues would require close consideration if there were to be a detailed statutory scheme for the disclosure of parliamentary information. The Committee put forward as an option for consideration that a freedom of information regime for Parliament might be developed:771

… with high-level principles established in legislation, but implemented under the Standing Orders or other rules adopted by the House or published by the Speaker. This model would be similar to how the New Zealand Bill of Rights Act 1990 (NZBORA) already applies to the legislative branch of government.

The Commission understands the definitional problems, and acknowledges the reasons which have persuaded the Standing Orders Committee to prefer that the legislation contain only high level principles. However the Commission still prefers a more specific legislative solution so that the rules applying to all agencies are contained in one place. Not only does it enhance accessibility to the general public, but it helps to counter any suggestion that the parliamentary agencies are subject to a different regime from everyone else. The Commission respectfully suggests that Parliament consider the Commission’s alternative proposals which follow.

The Commission agrees that it is important that proceedings of Parliament should not be subject to the OIA. The House should itself maintain control of those. Yet the expression “proceedings of Parliament” is not easily defined – the law of defamation amply illustrates that – and it would not be easy to frame an exclusion based on that terminology. It is better, we think, to specify the parliamentary agencies which are subject to the OIA, and to list the categories of information held by them which are “official information”. By listing what is in, and not just what is excluded, more certainty can be attained. If it be objected that this is to introduce a category-based, as opposed to a case-by-case system, it may be answered that there is precedent in the Act already for doing this in special cases.772

Information to be included in the OIA

Office of the Clerk and Parliamentary Service

We recommend that the following information held by the Office of the Clerk and the Parliamentary Service should be subject to the OIA. The definition of “official information” in relation to parliamentary agencies should specify that only the following types of information are included:

  • Statistical information about the parliamentary agency’s activities;
  • Information about the parliamentary agency’s expenditure of public money;
  • Information about the parliamentary agency’s assets, resources, support systems and other administrative matters.
The Speaker of the House

Under the Public Finance Act 1989 the Speaker is the responsible Minister in relation to the Office of the Clerk and Parliamentary Service. This means that the Speaker is accountable for the expenditure and financial performance of those organisations. We recommend that the OIA should be extended to cover the Speaker in that ministerial role under the Public Finance Act 1989, and that only information held by him or her in that capacity is within the definition of “official information”.

 
Parliamentary Service Commission

The Parliamentary Service Commission is an advisory body. It advises the Speaker on services to the House of Representatives and Members of Parliament; recommends criteria for funding entitlements and other matters; and considers and comments on draft reports prepared by review committees. We have considered whether the Commission should also be subject to the OIA. However after discussion with the Parliamentary Service we believe this to be unnecessary. The Commission is analogous to a committee which assists or advises a department or Minister in terms of section 2(2) of the OIA. The Commission “holds” no information in its own right. The information presented to it is held by the Parliamentary Service, which also prepares and holds the minutes of its meetings. If our recommendations are accepted the Parliamentary Service will be subject to the OIA. So we make no recommendation about the Parliamentary Service Commission.

Information to be excluded from the OIA

We believe that, to remove doubt, four types of information should be expressly excluded from the coverage of the OIA.

Agency role

It is already a principle of the OIA that “official information” does not include information held solely as an agent for a person who is not subject to the OIA. We do not propose that the House of Representatives or individual Members of Parliament shall be subject to the OIA, so it follows that information held by a parliamentary agency as an agent for them should not be subject to the Act either. It is not strictly necessary to provide separately for this, but to avoid confusion we think it desirable to make specific provision. We thus recommend that the OIA include a provision that information held by the Office of the Clerk or the Parliamentary Service solely as agent for the House of Representatives or a Member of Parliament is not official information.

Proceedings of the House

Again it is probably not strictly necessary to do so because of the specific list of inclusions, but it will remove any room for doubt if the OIA also provides that nothing in the Act is to apply to proceedings of the House of Representatives, or to limit or affect any privileges, immunities or powers of the House of Representatives or its committees or members. None of those concepts is susceptible of precise definition, so to deal with cases where there might be some doubt as to whether proceedings of the House or parliamentary privilege is involved, we suggest a provision analogous to section 31 of the OIA. It would provide that where the Speaker certifies that the release of any requested information would limit or affect any privileges, immunities or powers of the House, an Ombudsman will not recommend that the information be made available. The Freedom of Information Act 2000 (UK) contains an analogous provision in section 34.

Development of political policies

The disclosure of information about the expenditure of money is particularly problematic and sensitive if it would be likely to prejudice the development of political policies. It is in the public interest that parties be free to formulate policy without obstruction. One way of achieving this might be to create a new conclusive withholding ground of a kind similar to the grounds in section 6. But a more direct, and simpler, route to the same end is to exclude such information from the definition of official information. We recommend the definition of official information exclude “information held by a parliamentary agency that relates to the development of political policies by a recognised party or an independent Member”.

Individual Members of Parliament

Individual Members of Parliament should not be subject to the OIA. It is important that they be able to pursue their activities as Members, whether in relation to their constituencies or to Parliament, free from harassment or pressure. Just as information held by Members themselves should be exempt from the OIA, so should information held about them by parliamentary agencies which might be prejudicial in the way we have described.

We recommend that the OIA exclude from the definition of official information in relation to a parliamentary agency any information about a Member in relation to the Member’s performance of his or her role and functions as a Member.

We note that the UK Freedom of Information Act 2000, which applies to the House of Commons and House of Lords, contains the following exemptions in relation to individual Members of Parliament:773

(a)information relating to any residential address of a Member of either House of Parliament,

(b)information relating to travel arrangements of a Member of either House of Parliament, where the arrangements relate to travel that has not yet been undertaken or is regular in nature,

(c)information relating to the identity of any person who delivers or has delivered goods, or provides or has provided services, to a Member of either House of Parliament at any residence of the member,

(d)information relating to expenditure by a Member of either House of Parliament on security arrangements.

We agree with those instances, and would add another:

(e)information relating to any meeting that a Member attends in connection with his or her role and functions as a Member.

Such a list of specific instances might be added to the legislation as examples of the general exemption for Members which we have recommended. Alternatively the list might be contained in guidance.

Conclusion

We acknowledge that the handling of OIA requests will place a further administrative burden on the agencies made subject to it. This is true of all agencies already subject to the legislation. But this burden will be significantly alleviated by the regular proactive release of information about matters of expenditure and administration. The Members of Parliament (Remuneration and Services) Bill 2011, currently before Parliament, requires the quarterly release of information about Members' travel and accommodation expenses. We acknowledge and commend the present practices of releasing material of this kind without statutory compulsion. As we explain in chapter 12, we support the increasing voluntary proactive release of information by agencies. It will significantly reduce the number of individual OIA requests which would otherwise have to be dealt with. We note also the recommendations in chapter 9 of this report which should help to alleviate the burden of unreasonably large or vexatious requests.

R124The Office of the Clerk of the House of Representatives and the Parliamentary Service should be subject to the OIA by inclusion in Schedule 1. The definition of “official information” in section 2 of the OIA should state that, in relation to these agencies, “official information” includes only:

(a)statistical information about the agency’s activities;

(b)information about the agency’s expenditure of public money;

(c)information about the agency’s assets, resources, support systems, and other administrative matters.

R125The Speaker in his or her role as responsible Minister in relation to the Office of the Clerk and Parliamentary Service should be subject to the OIA by inclusion in Schedule 1. The definition of “official information” in section 2 of the OIA should state that only information held by the Speaker in that capacity is included.

R126Section 2 of the OIA should state that “official information”, in relation to information held by a parliamentary agency, does not include:

(a)any information held by a parliamentary agency solely as an agent for, or on behalf of, the House of Representatives or a Member of Parliament; or

(b)any information held by a parliamentary agency about a Member of Parliament in relation to the Member’s performance of his or her role and functions as a Member; or

(c)any information held by a parliamentary agency that relates to the development of political policies by a recognised party or an independent Member of Parliament.

Consideration should be given to whether the exemptions in the Freedom of Information Act 2000 (UK) that apply to individual Members of Parliament should be included in the OIA or in guidance.

R127To avoid doubt, a new provision in the OIA should state that nothing in the OIA limits or affects any privileges, immunities or powers of the House of Representatives.

R128Section 31 of the OIA should be amended to provide that the Ombudsmen must not recommend making available any official information held by a parliamentary agency or the Speaker, if the Speaker certifies that making the information available would be likely to limit or affect any privileges, immunities, or powers of the House of Representatives.

R129Section 9(2)(g)(i) of the OIA should be amended so that the withholding ground covers the free and frank expression of opinions between:

(a)an officer or employee of a parliamentary agency;

(b)the Clerk;

(c)the Speaker; and

(d)a Member of Parliament.

Courts

As the OIA currently stands, the terms “department” and “organisation” do not include a court.774 The OIA was originally conceived to ensure the accountability and transparency of executive government. But the rationale of the Act applies equally to the courts, just as we have said it does to Parliament. They spend public money, and (obviously) perform an essential public function. The paramount necessity of an independent judiciary is beyond debate. It is a cornerstone of the constitution of any democracy. But transparency and openness do not diminish independence: they enhance it.

The central function of the courts is to try cases.775 Cases are tried in public. Indeed, along with Parliament, courts are the most public of all our institutions. The material generated in the course of this central function – that is to say the records of cases – can already be accessed in accordance with rules of court.776 That access is under the control of the judges. There is no need, and it would create confusion, to have access to these records further regulated by the OIA. In this respect the exclusion of the courts from the OIA is consistent with the exclusion of other bodies whose function and essential role is judicial inquiry and determination: Royal Commissions, commissions of inquiry, statutory bodies of inquiry and the Judicial Conduct Commissioner. Evidence and submissions to those bodies are excluded from the definition of “official information”.777

Yet there is information of an administrative kind in relation to which there is a clear case for subjection to the OIA. This includes information about expenditure; details of resources such as buildings, equipment and support staff; and statistics about such things as numbers and kinds of cases tried or pending. Some of this information is held by court officials, but more is held by the Ministry of Justice: that Ministry’s information system holds much material about, and for, the courts. There is presently a degree of uncertainty as to what the Ministry should release in response to an OIA request. By virtue of section 2(1)(f) of the OIA, if the material is held by the Ministry as an agent for the courts, it is deemed to be held by the courts, and thus to be exempt from the OIA. Yet the line between what is held as agent and what is not is not as clear as it might be. It has been the cause of some confusion.

One solution might be to provide simply that information relating to the courts is subject to the OIA if it is “administrative” in nature, but not if it is “judicial” in nature. This is the approach taken in much of the Australian freedom of information legislation, both state and federal.778 A similar distinction between a court’s “judicial” and “administrative” functions is drawn in New Zealand’s Privacy Act 1993.779 The OIA currently provides that tribunals are excluded “in their judicial functions”. Nevertheless, as we said in the issues paper, we have reservations about that approach. Trying to isolate “administrative” functions could cause some confusion. The judiciary described the judicial/administrative dichotomy as “a generalised formula” which does not actually fit the situation, and which would be likely to lead to much argument. The judiciary also said:

… the suggested approach by way of applying to courts the same qualification as is expressed in the Act with reference to tribunals is likely to create more problems than it solves. To begin with, tribunals can have both administrative and judicial functions, whereas courts have only judicial functions.

The New Zealand Law Society suggested a clarifying provision that for the purposes of the OIA “official information” includes information held by a department or organisation relating to the operation or administration of a court. That is certainly an advance on the judicial/administrative dichotomy, but it is probably still a little open-ended, and we think that a greater degree of specificity would be desirable.

We recommend that a provision be added to the OIA which would be analogous to paragraph (c) of the definition of “official information” in section 2(1). It would provide that, in relation to information about the courts, “official information” includes only:

(a)statistical information about cases;

(b)information about expenditure; and

(c)information about buildings, resources, support systems, and other operational matters.

The position should, we think, be clarified by specifically providing for some exclusions. The information subject to the OIA should not include information about specific cases, nor information about judicial communications including judges’ papers and notes. In addition (although it may not be strictly necessary in light of the specific list of inclusions) we think it desirable that the special position of judges in our democracy should be recognised by an exemption similar to that which we have recommended for Members of Parliament. We recommend, for the removal of doubt, an express provision that information about a judge in relation to the judge’s performance of his or her role and function as a judge should not be official information.

Currently the OIA provides that official information “in relation to information held by the Ministry of Justice includes information held by the Rules Committee appointed under section 51B of the Judicature Act 1908”.780 That result could perhaps be achieved more simply and directly by providing that the Rules Committee, a statutory body, is an “organisation” for the purposes of the OIA. But that may involve an inference that even the personal papers and notes of the members of the Committee would be subject to disclosure, and we would not wish to go so far. So, in the end, we have decided to make no recommendation for change in the present provision.

There is a question about the complaints process in cases where a requester believes court information has been wrongly withheld. The Ombudsmen are officers of Parliament, and it may be argued that oversight by them of court matters offends against the separation of powers. We do not think this is a persuasive argument. If the Ombudsmen’s jurisdiction extended to judicial matters it might be different, but we are proposing that the OIA extend only to administrative and operational matters, most of the relevant information being held by the Ministry of Justice. Such is the undoubted independence and experience of the Ombudsmen that they seem the obvious complaints authority.

We note the increasing trend towards proactive release of information. We discuss that trend, and its relationship with the OIA, in chapter 12. We believe that the courts, or the Ministry of Justice on their behalf, could proactively publish much information online. Some is available already, but there might helpfully be more. We commend the idea of an annual report containing information about statistics and operational details.781

Finally we return to the point we made earlier about the allocation of administrative responsibility between the courts and the Ministry of Justice. Greater clarity is desirable in this area, and we hope that efforts can be made to achieve it. We note that in some jurisdictions much greater operational autonomy is given to the judges: for example in England and Wales the courts are supported by a court service answerable to the judges. There is an argument that judicial independence, and (perhaps more importantly) the perception of it, are enhanced by institutional separation of the courts from the executive. This is beyond the terms of reference of the present review, but we think this matter is deserving of careful study in New Zealand.782

R130Section 2 of the OIA should be amended so that the definition of “official information” includes, in relation to information about the courts, only:

(a)statistical information about court cases;

(b)information about expenditure; and

(c)information about court buildings, resources, support systems and other operational matters;

and excludes:

(d)information about specific court cases;

(e)judicial communications including judges’ papers or notes; and

(f)information about a judge in relation to the judge’s performance of his or her role and function as a judge.

State Owned Enterprises (SOEs)

In our issues paper, we asked whether SOEs should continue to be subject to the OIA, and expressed our view that they should. We quoted the views of a special select committee established in 1989 to determine whether SOEs should remain subject to the OIA. That committee concluded:783

4.1 The State-Owned Enterprises Act imposes on State enterprises, as part of those matters that go towards the operation of a successful business, the obligation to be a good employer and to exhibit a sense of social responsibility. While the requirement to be “as profitable and efficient as comparable businesses that are not owned by the Crown” may be seen as the principal objective, the other obligations cannot be overlooked.

4.2 It is the nature and functions of the SOEs, their role in the community and their ownership, that are the deciding factors in whether they should be covered by the [Ombudsmen Act] and OIA. SOEs are still owned by the public, and the hybrid nature of their functions continue, together with issues of scale or monopoly.

4.3 The OA and OIA provide a measure of accountability for the public, particularly on matters that affect individuals and which the other SOE accountability processes do not address, and to remove the jurisdiction of the two Acts would result in a significant loss in public confidence in the Government’s oversight of the SOEs.

Most submitters agreed with our view. Those SOEs that provided a submission either disagreed or considered that, if SOEs were to remain subject to the OIA, some specific provisions dealing with the particular issues faced by SOEs were required. They said that the landscape had changed significantly since the 1989 select committee report. They noted that SOEs now operate in a highly competitive market whereas, in 1989, the major SOEs were monopoly providers. Some SOEs (for example, Kiwibank and the energy generators and suppliers) did not exist in 1989. And accountability arrangements, including the introduction of the Continuous Disclosure Rules, have been strengthened.

These submitters expressed some common concerns about being subject to the OIA. These included that the release of information held by SOEs did not really achieve the OIA’s purposes as expressed in section 4 of the Act. For example, access to SOE information does not promote effective participation in the making of law and policy.

They also considered that being subject to the OIA placed them at a competitive disadvantage compared to private sector businesses operating in the same environment. This is because SOEs would be required to make information available that their competitors were not, because competitors could request and use information to their benefit and to the SOE’s detriment, and because of the compliance costs in responding to OIA requests.

SOE submitters also considered that there were already sufficient mechanisms in place to hold SOEs accountable. These included those imposed by the State Owned Enterprises Act 1986, which subjects SOEs to a detailed public disclosure and reporting regime and ensures that their financial affairs and activities are made public. Several SOEs are also subject to a set of Continuous Disclosure Rules drawn up by the Crown Ownership Monitoring Unit (COMU).784 These Rules require the identified SOEs to disclose matters having a material effect on the SOE’s commercial value.

We continue to hold the view that SOEs should be subject to the OIA. We accept that there have been changes in the environment within which SOEs operate since the select committee’s report in 1989. However, we do not consider these to be so significant that SOEs should be excluded from the OIA. We believe that their exclusion would leave a significant gap in the OIA’s application and have a detrimental impact on overall accountability mechanisms for public agencies. The functions SOEs perform are of major public significance. Most importantly, they remain state-owned and their Ministers are responsible to Parliament for the proper exercise of their functions. They are subject to judicial review. While their principal objective is to operate as a “successful business”, they also have “public good” responsibilities consistent with their role as a state sector agency. These include the need to exhibit a sense of social responsibility and have regard to the interests of the community within which they operate.785

The fact that the Government has elected to retain these enterprises in Crown ownership means that their connection with government is seen as being of continuing importance. Being subject to the OIA is a consequence of that. Nor do the other reporting and disclosure requirements go as far as the obligations which arise under the OIA. There may be information held by SOEs which falls outside these other requirements. For example, not all SOEs are subject to the Continuous Disclosure Rules. Nor will accountability documents like annual reports and statements of intent necessarily provide information about the reason why the SOE acted in a particular way or agreed to a particular policy.

We consider that recommendations made in other areas of this report will address some of the concerns raised by SOE submitters. In particular, we recommend in chapter 5 a new withholding ground that aims to protect the competitive position or financial interests of the agency which holds or supplies the information, and another in chapter 7 to protect information supplied in the course of an investigation or inquiry. We also recommend a review of the charging regime, and greater guidance about how each withholding ground is to be applied.

In May 2011, the Government announced its policy of moving to a mixed public–private sector ownership model for Genesis Energy, Solid Energy, Mighty River Power and Meridian Energy. Under this policy, the Government would retain majority ownership of these SOEs with a lesser proportion being owned by the private sector. This is a broadly similar arrangement to that in place for Air New Zealand, where the Government currently holds approximately 74 per cent of the company’s shares.786

The greater use of a mixed ownership model raises questions about whether the OIA should continue to apply to these particular SOEs. Air New Zealand is not subject to the OIA. (It used to be, but was withdrawn from the OIA when it was privatised, and not brought back under it when the Government again became a shareholder.)

There are two views on whether mixed ownership entities should or should not be subject to the OIA. On one view they should. This view holds that the Government’s majority shareholding provides an important signal about the role these organisations play in the state sector, and their importance to New Zealand’s interests. A parallel can be drawn with majority-held council controlled organisations, which are subject to the LGOIMA. The contrary view, i.e. that mixed ownership entities should not be subject to the OIA, is based on the fact that there may be a potential conflict between a listed company making disclosures to requesters under the OIA and its obligation to fairly inform the market as a whole under companies and securities laws and under the stock exchange listing rules.787 Moreover the shareholding Ministers would remain subject to the OIA, even though the entity itself may not. The Mixed Ownership Assets Bill 2012, currently before Parliament, adopts the second option, and takes the entities in question out of the Act. The matter is controversial. The Law Commission makes no recommendation on it.

Council controlled organisations (CCOs)

In relation to the LGOIMA, the same reasoning applies to CCOs as applies to SOEs. As noted by one local authority, ratepayer funds are often used to establish CCOs and a local authority may also provide administrative assistance and support to the organisation. It is therefore appropriate that a CCO’s operations are open and transparent.

It is notable that as recently as 2002, when the Local Government Act was re-enacted, CCOs were specifically made subject to the official information provisions of the LGOIMA.788 We believe that the commercial sensitivity reasons for withholding information, along with our proposed new withholding ground, are adequate to protect the commercial interests of such bodies if those grounds are properly applied.

R131State Owned Enterprises should continue to be subject to the OIA and council controlled organisations should continue to be subject to the LGOIMA.

Stanley L Tromp “Fallen Behind: Canada’s Access to Information Act in the Modern World Context” (September 2008) at 78, accessible at < www3.telus.net/index100/report>.

A member’s bill proposes to reverse the exclusion of port companies and their subsidiaries from the LGOIMA: see Local Government (Council-Controlled Organisations) Amendment Bill 2012 (Consultation Draft) proposed by Darien Fenton (Labour).

Legislation Advisory Committee Guidelines on Process and Content of Legislation (Wellington, May 2001) at [9.6.2].

Freedom of Information Act 2000 (UK), sch 1, pt 6; s 33.

Freedom of Information Act 1982 (Cth), sch 2.

Right to Information Act 2009 (Tas), s 6; Government Information (Public Access) Act 2009 (NSW), sch 2, cl 1.

See OIA, s 2(1)(i), which excludes from the definition of “official information” any correspondence or communication between the Ombudsmen and a Minister or organisation in relation to an investigation under the OIA or Ombudsmen Act 1975. Ombudsmen and their staff are under a statutory obligation to maintain the secrecy in respect of all matters that come to their knowledge in the exercise of their functions (Ombudsmen Act 1975, s 21(2)) including in respect of investigations under the OIA or LGOIMA (OIA, s 29(1); LGOIMA, s 28(1)).

OIA s 2(1), definition of “official information” paras (h), (i), (j), (l).

See State of New South Wales v Betfair [2009] FCAFC 160.

See Legislation Bill 162-2 (2010), cl 58B. The Bill identifies “confidential communications” between a PCO client and the Chief Parliamentary Counsel as being subject to legal professional privilege. These communications include drafting instructions and draft legislation.

Law Commission Review of the Civil List Act 1979: Members of Parliament and Ministers (NZLC R119, 2010) at 42.

Standing Orders Committee Review of Standing Orders (September 2011) 1.18B at 63–65.

At 65.

See for example OIA, s 2(1), definition of “official information”, paras (d) and (e).

Schedule 1, Part 1, clause 2.

OIA, s 2(1).

Yet this is not the only function. A commentator has recently said that “… a judge’s job, especially at the level of the Supreme Court and Chief Justice, is more than just deciding cases. The Chief Justice, especially, needs to travel internationally as part of the representative aspect of her role.” Richard Cornes “Judicial Transparency Needs Rethink” The Dominion Post (online ed, Wellington, 17 January 2012), accessible online at <www.stuff.co.nz>.

For example, High Court (Access to Court Documents) Amendment Rules 2009.

OIA, s 2(1).

Freedom of Information Act 1982 (Cth), s 5; Right to Information Act 2009 (Tas), s 6; Right to Information Act 2009 (Qld), sch 2, para 2, clause 1; Government Information (Public Access) Act 2009 (NSW), sch 2, cl 1.

Privacy Act 1993, s 2 definition of “agency”, para (b)(vii).

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

Compare The Supreme Court: Annual Report and Accounts 2010 – 2011 (London, 2011).

See for example Rt Hon Dame Sian Elias, Chief Justice of New Zealand “Fundamentals: A Constitutional Conversation” (Harkness Henry Lecture 2011, University of Waikato, Hamilton, 12 September 2011).

Report of the State-Owned Enterprises (Ombudsmen and Official Information Acts) Committee (Wellington, 1989) at [4].

COMU is a business unit located within the Treasury. The SOEs which are subject to the Rules are New Zealand Railways Corporation, Transpower, Meridian, Mighty River Power, Landcorp, Genesis, NZ Post, Solid Energy and Kordia.

State Owned Enterprises Act 1986, s 4.

Minister of Finance and Minister for State Owned Enterprises Extending the Mixed Ownership Model (Cabinet paper, 6 May 2011) at 6, accessible at <www.comu.govt.nz>.

OIA, s 52, would be one option for dealing with any legislative conflict.

Local Government Act 2002, s 74.