Chapter 16: The legislative vehicle

Is legislation necessary?

This report has demonstrated a large number of areas where the OIA and LGOIMA are not working as they should. We have asked whether these deficiencies could be remedied in a way which does not involve legislation. In a number of instances improved guidance will undoubtedly assist. But we have concluded that significant legislative amendment is also required. It would be surprising if it were not. The Acts are nearly 30 years old. They date from a time when information was mainly stored in paper form; their framers could not have been expected to foresee the new technologies which enable the creation, storage and transfer of information in digital form.

In a good number of instances these developments in technology, and long experience applying the Acts over the years, have shown up deficiencies in the legislation which can only be corrected by legislative amendment. The submissions we received demonstrated considerable dissatisfaction with some of them. Increasing resources for education and guidance can do nothing to correct what are essentially structural deficiencies.

There follow some examples of the kinds of problems which can only be fixed by legislation.

First, in some instances we have concluded that the Acts’ grounds for withholding information are insufficient, and further grounds are needed. Perhaps most significantly, the scope of the “commercial” withholding grounds has been a matter of growing concern as government agencies increasingly become involved in the market place. The concern emanates not just from the agencies themselves, but also from private sector bodies with whom they deal. The legal meaning of “commercial” is too narrow: it assumes a profit-making motive. What is needed is an additional withholding ground which protects “competitive position” and which is not dependent on a profit motive.827

There is also, we think, a need to protect information provided in the course of a statutory investigation or inquiry. Currently attempts are made to do this via the “maintenance of the law” ground, with the result that this ground is distorted beyond its proper scope. A new ground is needed.828

Secondly, some of the requests made to hard-pressed agencies require a very great deal of work over and above the core business of these agencies. Requests are made asking for very large amounts of information. Sometimes that is inevitable, and is one of the prices the system must pay for a desirable degree of openness. But resources are limited. We are persuaded that amendment is currently required to the grounds for refusing a request where the work involved on the part of the agency in providing the information is clearly unreasonable. The existing grounds are narrow. Legislative change is needed.829

Thirdly, in a number of areas the legislation is insufficiently clear. Lack of clarity can lead to inconsistent responses, and also to mistrust, and suggestions that an agency is misusing a provision. Guidance cannot always help, as what is needed is creation of a clear new provision rather than mere interpretation of the provision that is already there. Only legislation can achieve this. This is true of the so called “good government” grounds which have been the cause of much dissatisfaction on the part of both agencies and requesters. The use of the concept of “constitutional conventions” in the present provision hinders comprehension. We believe redefinition is necessary.830  There is general agreement among agencies with that view.

Also needed is some certainty about whether partial transfers are possible; how urgency is to be dealt with; and when information can be said to be “publicly available”.831 Any attempts to provide explanations in guidance material would be effectively to purport to create new law rather than explain the existing law.

Fourthly, the scope of the Acts needs urgent review. There are presently anomalies as to which agencies are in and which are out. Nor in a modern democracy is there any sensible reason why officers of Parliament, parliamentary agencies and the court system should not be subject to a regime of openness, particularly in relation to expenditure and operational matters. The schedules listing the agencies subject to the legislation need review and amendment.832 Fifthly, there are discrepancies, inconsistencies, and uncertainties in the relationship between the official information legislation and other Acts (such as the Privacy Act 1993 and the Public Records Act 2005); between the OIA and LGOIMA;833 and even between different parts of the OIA (in particular, the different complaint-handling processes in Parts 2, 3 and 4).834 Only legislation can remedy this. Moreover the new developments in proactive release of information to the public, while have they been achieved by policy directives, raise questions about their relationship with the OIA and LGOIMA.835 Legislation would help to clarify that.

Sixthly, the Acts are showing signs of age. The purpose provisions of both have not caught up with the fact that the Privacy Act 1993 now deals with most access requests for personal information. There is outdated and obscure language which needs modern translation: for example “vexatious” and “due particularity”.

Finally, unlike most modern legislation the OIA and LGOIMA do not confer functions on officials (with the exception of the Ombudsmen’s complaints function). Important oversight, guidance and leadership functions are not provided for. In this sense the Acts lack an “owner” charged with advancing their purpose. This is in obvious contradistinction to other Acts, including some in the information area: the Human Rights Act 1993, the Public Records Act 2005 and the Privacy Act 1993, for instance, all contain lists of functions and vest them in a statutory official.

No doubt functions can be created and conferred on individuals or organisations by the government without the intervention of statute: the recent establishment of a Government Chief Information Officer in the Department of Internal Affairs is an example. But that, in our view, is a less than optimal solution. The functions thus established are not as publicly accessible and are potentially less permanent. Nor are they likely to be as effective in relation to local government. Given that legislation is necessary to accomplish most of the necessary reforms we propose, we believe that the new functions suggested should be included as part of that legislative reform.836

In conclusion, this report recommends a balanced package of reform which combines more guidance for those using the Acts, and legislative amendment where that is necessary. After 30 years, change is needed to ensure proper flows of information, to create more comfort for those dealing with government, particularly in the commercial arena, and also to provide reasonable limits on the workloads of government departments.

The next question is the type of legislation which should be employed.

See chapter 5.

See chapter 7.

See chapter 9.

See chapter 3.

See chapters 7 and 10.

See chapter 14.

See chapter 14.

See chapter 11.

See chapter 12.

See chapter 13.