Chapter 16: The legislative vehicle

Combining the OIA and LGOIMA

A more difficult question is whether the OIA and the official information provisions of LGOIMA should be combined in one Act. The arguments for and against this course of action are fairly finely balanced.

Arguments in favour

In favour of combining the Acts are the following considerations.

(a)First, both Acts relate to information about government. They have the same rationale and the same principle. Bringing them together could enhance and strengthen the message of open government.

(b)Secondly, many of their provisions are identical, or nearly so.

(c)Thirdly, members of the public who are aware of the disclosure regime of local government often do not know the difference between the two Acts. They often refer to both as “the OIA”.

(d)Fourthly, the fact that local government is subject to disclosure requirements is sometimes not well enough understood. It is sometimes forgotten in discussion of the official information regime. Combining the two Acts could help to raise the profile of the local government regime.

(e)Fifthly, we recommend that the same oversight office be responsible for monitoring and reporting on the operation of the two Acts.

(f)Sixthly, the Ombudsmen hear complaints under both. The jurisprudence developed through their case notes is equally applicable to both.

Arguments against

The arguments against combining the Acts are as follows.

First, as we have seen earlier in this chapter there are significant differences between LGOIMA and the OIA. This is inevitable given the differences between central and local government. Some of the withholding grounds are different; the definition of “official information” differs between the Acts; and different personnel are subject to each Act. If the Acts were to be combined, local government officials would need to sift through the new composite Act picking out the parts that apply to them, and vice versa with central government officials.

Secondly, a large number of provisions of the OIA which impose powers and duties on Ministers and officials would have to be amended by adding words appropriate to local government executives and officers. It may be that this could be accomplished by the use of a generic term defined in the interpretation section, but whichever way it is done there is likely to be awkwardness.

Thirdly, since the meeting provisions of the LGOIMA are closely linked to the official information provisions (the grounds for excluding the public from meetings being essentially the same as the official information withholding grounds) it makes sense to have both in an Act specific to local government.

Submissions

We posed the question of whether the Acts should be combined in both our 2009 survey and our 2010 issues paper. In the survey, there was a fairly even split among respondents. In the submissions to the issues paper, however, a substantial majority agreed with our tentative view expressed in that paper that the Acts should remain separate. The main reason given was that a single Act would be more complex and cumbersome. Respondents to our survey put it thus:

Given that it is likely that people only work with one or the other of the two Acts, it would be annoying if the two were combined, resulting in one unwieldy piece of legislation.

It is considered that one Act for both sectors would be less readable and clear and would be confusing, and that the OIA and LGOIMA should remain separate Acts.

It was also noted that there have been two Acts for 25 years, and the situation is thus familiar. Other submissions pointed out that the present position is not a problem because administering officials only use one Act, and need only be familiar with that one. There is also no adverse impact for requesters, even if they do not know which Act applies to their request. Another felt that combining the two “would blur the constitutional separation between local and central government”.

However a minority of submitters strongly supported one Act. They believe that our freedom of information laws would be more effective if they were unitary and of universal application. They noted that having two Acts complicates the task of educating agencies and the public, and referred to the fact that in our issues paper there was awkwardness in that for every reference to the OIA we had to footnote or otherwise cross-reference the corresponding provision in the LGOIMA.

Conclusion

As we said earlier, the arguments are quite finely balanced. We are attracted to the idea of a single Act, because we agree that it would communicate a single, all-encompassing message about the importance of openness in government. But we would not want that to happen if combining the two led to complexity and thus impeded accessibility. That in the end is an issue for expert drafters. We recommend that consideration be given to combining the two Acts, but that that not be at the expense of accessibility.

R137As part of re-drafting and re-enacting the OIA and LGOIMA, consideration should be given to combining the two Acts into one piece of legislation. However, the need for accessibility and clarity should remain paramount.