Chapter 15: Issues of compatibility

Local Government Official Information and Meetings Act 1987

Introduction

We were initially asked to review only the Official Information Act 1982. However, very early in the piece it became apparent that we needed also to examine the official information provisions of the LGOIMA. Both deal with access to information held by government.805 The submissions we received on the issues papers revealed the same concerns about both Acts. The important issues are the same in both and most of the reforms we propose for the OIA would be equally appropriate to the LGOIMA. So we have extended our review to both Acts. We do not, however, cover part 7 of the LGOIMA (the meetings provisions) or section 44A relating to land information memoranda (LIMs).

In this report, where there are identical or almost identical provisions in both the OIA and LGOIMA, we have preferred to refer in the body of the text to the OIA only, with the corresponding section of the LGOIMA in a footnote. This is solely for reasons of economy of expression. It would render the text congested and less user-friendly if we had to give both references throughout the text. However, when the LGOIMA raises issues particular to itself – for example in the case of the veto of an Ombudsman’s recommendation – we have dealt with it separately.

 

Differences between the OIA and LGOIMA

The great majority of the provisions of both Acts are identical, although with references to Ministers and departments in the OIA being substituted with the relevant local government personnel and agencies in the LGOIMA. However, there are some more significant differences.

Constitutional

The most obvious differences between the OIA and LGOIMA result from the different constitutional arrangements as between national and local government. National government has a unitary structure culminating in Cabinet. Local government is indeed local, and involves a large number of authorities each exercising jurisdiction in a defined area. These differences are reflected in the Acts in a number of ways.

First, the grounds for withholding in the LGOIMA do not include grounds relating to the security or defence of New Zealand, New Zealand’s international relations and the New Zealand economy. Nor is it necessary to have measures to protect the constitutional conventions involving ministerial responsibility and the like.806 The “free and frank” provisions are found in both Acts, although the personnel whose disclosures are protected obviously differ in each instance. Our proposed redraft of these provisions necessarily retains these distinctions. Conversely, there is one ground in the LGOIMA which does not appear in the OIA: it relates to the need for a local authority in determining applications under the Resource Management Act 1991 to avoid causing serious offence to tikanga Māori, and to avoid the disclosure of the location of wāhi tapu.807 We discuss in chapter 7 whether there should be any similar ground in the OIA.

Secondly, the differing constitutional arrangements are also reflected in the definition of “official information” in the two Acts.808 The OIA definition is much longer because it needs to take account of information held by courts and tribunals, royal commissions, universities and a wide range of national bodies.

Thirdly, the most significant difference relates to the so-called power of veto.809 In 1987 the power of veto over Ombudsmen’s recommendations under the OIA was transferred from the individual Minister holding the relevant portfolio, to Cabinet.810 In the absence of any central coordinating body for local government, the veto power in the LGOIMA remains now, as it did from the beginning, with the local authority which is itself the subject of a recommendation. The nature of the duty imposed by the recommendation thus differs in kind in the two contexts: a duty which is defeasible by the organisation subject to it (as in the LGOIMA) is essentially different from a duty which is defeasible by a separate agency (as in the OIA). We discuss in chapter 11 our recommendations for the veto in these two different situations.

Fourthly, sanctions for breaches of duty differ between the two statutes. If a central government agency fails to comply with an Ombudsman’s direction to provide information, the Ombudsman can report the failure to the Prime Minister and make a report to the House of Representatives.811 There is no equivalent sanction in the LGOIMA.

Ombudsmen may also report to the Prime Minister or the House of Representatives on the way in which a Minister or other agency has dealt with a request under Part 3 or Part 4 of the OIA.812 However in relation to a local authority, the LGOIMA provides that such a report is to be sent to the local authority itself, which is then required to publicise its existence and notify the public of the place where it can be inspected.813 In both instances, therefore, publicity is the deterrent, but in the case of the local authority that publicity is undertaken by the local authority itself.

Fifthly, the Ministry of Justice has powers and duties under the OIA. It is required to issue a publication setting out the functions of departments and organisations, which it does in the form of its Directory of Official Information.814 In the LGOIMA as originally passed that function was, in respect of each local authority, imposed on the authority itself. It was required to publish information about itself, its functions and processes and the documents it held. That requirement is no longer part of the LGOIMA but a very similar provision in the Local Government Act 2002 requires the publication of governance statements by local authorities.815 Once again the distributive nature of local government stands in contrast to unitary central government. Our proposal for OIA agencies to publish information about themselves, and no longer have a Directory of Official Information,816 would make the OIA and LGOIMA similar in this respect.

The other role of the Ministry of Justice under the OIA is that it is charged with a power to furnish advice or assistance to other departments and organisations to enable them to act in accordance with the OIA.817 No equivalent function rests with any agency in relation to the LGOIMA.

We discuss in chapter 13 the need for effective oversight of the official information regime. The need for oversight may be even greater in relation to local government. Its highly individualised character means that in many matters each local authority substantially controls its own destiny, subject of course to the important controls exercised by the Ombudsmen. Accordingly, in chapter 13 we make proposals for an oversight office which monitors both central and local government.

In conclusion, there are inevitable and unchangeable differences between central and local government, and therefore between the provisions of the OIA and LGOIMA. Any redrafting of the Acts will need to take account of these differences. Some of them create difficulties for any amalgamation of the two pieces of legislation.

 

Other differences

The differences between the OIA and LGOIMA that we have just been discussing are inevitable given the essentially different character of local and central government. However there are other differences between the two Acts which are more difficult to explain.

First, the persons who can request information are differently defined in the two Acts. Under the OIA the power to request is confined to persons who are citizens of New Zealand, or are resident or actually present in New Zealand.818 Under the LGOIMA there is no such restriction. Any person can make requests.819 Whether this distinction makes much difference in practice is doubtful. But the difference in wording between the two is noticeable, and there seems no reason for it. We do not think the point is a major one, but can see no reason for the difference in drafting. We think the two provisions should be brought into line.

Submitters who addressed this question agreed. Having considered the arguments in the submissions, we now think that the LGOIMA provision is more sensible, and that the OIA provision should come into line with it. It is hard to enforce any residency requirement: people can appoint proxies. It is of interest that the Privacy Amendment Act 2010 amends the equivalent access provisions of the Privacy Act 1993 by removing the existing requirements of connection with New Zealand, thus enabling requests from persons outside the country.820 No doubt the context is different, but there are advantages in having the principles consistent between the privacy and the official information legislation.

Secondly, the purpose sections of the two Acts are different. The OIA has, as a primary purpose, “to increase progressively the availability of official information.”821 By contrast in the LGOIMA, the equivalent provision is “to provide for the availability to the public of official information.”822 Thus an underlying assumption of the OIA is that there will be continual advances in the openness of government. This same assumption does not appear, at least expressly, in the LGOIMA. Consistently with this, in the LGOIMA there is no equivalent to the OIA provision which provides a right of access to categories of information declared by regulation to be available as of right.823 In the LGOIMA there never was such a power to regulate for open categories of information.

The reason for the distinction between the two Acts eludes us. It may simply be a reflection of the fact that the LGOIMA was passed in 1987, just before the expiry of the Information Authority. Openness of government is as important in local government as it is centrally. In an age of advancing technology, making information openly available is easier than ever before. It makes sense to progressively increase access at all levels of government. In chapter 12 we discuss proactive disclosure in more detail. We can see no distinction between the two types of government in this respect. We therefore think that the purpose sections of both Acts should be the same, and that both should emphasise progressive availability.824

Thirdly, there is a difference between the two Acts in relation to information held by an independent contractor engaged by a government agency which is subject to the Act. For the purposes of the OIA, information held by the independent contractor is “deemed to be held by the department or Minister of the Crown or organisation”.825 The flaw in this formulation is that it does not clearly state how information in the possession of the contractor is to be obtained. The contractor itself is not subject to the OIA, so it is difficult to see how it could be obliged to comply with a request to disclose. But if the government agency is subject to a request under the OIA, how is it to obtain the information from the contractor, in the absence of a provision in the contract between them requiring disclosure?

It was no doubt to plug this perceived gap that the LGOIMA, passed five years later than the OIA, provides that information held by a contractor is only deemed to be held by the local authority in question if the local authority “is, under and by virtue of that contract, entitled to have access” to it.826 That fills the lacuna which is present in the OIA, but carries with it the difficulty that it effectively leaves in the hands of the contracting parties the right to determine by contract whether or not the information may be disclosed. It could be an incentive to draft contracts which kept information solely in the contractor’s possession. That problem may well be more apparent than real, however, for it is difficult to imagine cases where an agency which has outsourced work to a contractor would not require access to information held or generated by the contractor relevant to the operation of that contract.

There is, however, no apparent reason why the two Acts should be different in this respect, and we think they should be brought into line. While the matter is reasonably finely balanced, we prefer the OIA solution. It means that the government agency is deemed to hold the information, and places the onus squarely on that agency to justify a failure to disclose it.

R134Sections 12, 21, 22 and 23 of the OIA should be amended to provide that any person (whether a citizen of New Zealand, resident in New Zealand or otherwise) can make a request for information, consistent with sections 10, 21, 22 and 23 of the LGOIMA.

R135The following sections of the LGOIMA should be amended for consistency with the OIA:

(a)Section 4(a) of the LGOIMA should provide that a purpose of the Act is to increase progressively the availability of official information to the public;

(b)Section 2(6) of the LGOIMA should be deleted and replaced with a provision like section 2(5) of the OIA, deeming that any information held by an independent contractor engaged by a local authority is, for the purposes of LGOIMA, held by the local authority.

For discussion of the LGOIMA, see Mai Chen Public Law Toolbox (LexisNexis, Wellington, 2012) at [10.5].

Compare OIA, ss 6 and 9 with LGOIMA, ss 6 and 7.

LGOIMA, s 7(2)(ba).

Compare section 2 of both Acts.

OIA, s 32; LGOIMA, s 32.

Official Information Amendment Act 1987, s 18.

OIA, s 29A(6).

Section 35.

LGOIMA, s 39.

OIA, s 20.

Local Government Act 2002, s 40.

See chapter 12 at [12.87]–[12.90].

OIA, s 46.

Sections 12, 21–23.

LGOIMA, ss 10, 21–23.

Privacy Act 1993, s 34.

OIA, s 4.

LGOIMA, s 4.

OIA, s 21(2).

If the power to specify by regulation information to which there is a right of access is retained in the OIA, we think it should appear in LGOIMA also.

OIA, s 2(5).

LGOIMA, s 2(6).