Chapter 2: Decision-making

Current guidance

There is already some guidance available to agencies, although the consensus seems to be that more is needed, and of a more specific kind. Currently, no statutory agency has responsibility for providing such guidance. In the absence of any such requirement, it is the Ombudsmen’s office which has, of its own motion, filled the gap. Most submitters commended that initiative. The guidance that is available is of four main kinds.

First, the Ombudsmen’s website contains a set of guidelines for applying the OIA, known as the “Practice Guidelines”. There are guidelines for almost all of the withholding grounds, and indeed for the Act’s other provisions as well. Some of these guidelines are quite lengthy, and provide step-by-step guidance as to how to reason to a conclusion. While some agencies expressed their appreciation of this assistance, many felt that the Guidelines are of a somewhat abstract nature, and closely follow the wording of the Act without providing concrete examples. In other words, while the Guidelines give guidance as to the process to be followed, many felt that they do not so clearly point the way to the answer to even frequently recurring problems. One submitter said the Guidelines are:

… of limited assistance because they are long and technical documents. The Guidelines would benefit from being rewritten and simplified. Specific examples of case studies would also be helpful.

Secondly, there are guidelines published by government entities other than the Ombudsmen. The Ministry of Justice has a set of guidelines on charging.40 The Cabinet Manual has a section on the OIA, containing, in particular, practical notes about consultation on OIA requests, especially consultation by a department with its Minister.41 A 2008 Cabinet Circular sets out the principles that guide the handling of requests for the Cabinet records of a previous administration.42 The State Services Commission has also produced a set of guidelines about consultation on, and transfer of, OIA requests.43

Thirdly, the case notes of the Ombudsmen summarise decisions reached by them after investigating complaints about the alleged wrongful withholding of information. Some case notes are available on the Ombudsmen’s website and used also to be published in an annual hard copy compendium. The last of the compendia was published in 2007. At the moment, the case notes published on the website also stop at that point. The published case notes are, and always have been, merely a selection of the Ombudsmen’s cases. Many cases do not make it to publication at all. Of those that do, not all draw attention to commonly occurring issues: some are published for their novelty more than because of any precedent value. The case notes are not indexed.

Fourthly, two other publications from the Ombudsmen’s office give useful assistance. The “Ombudsmen Quarterly Review” summarises and discusses important recent decisions. It is a valuable resource in that it has a thematic focus and discusses matters of principle. There is an index to the Review. The Office’s Annual Report to Parliament also draws attention to recent developments, and it may comment on recurring problems. Both of these documents may be accessed on the Ombudsmen’s website.

Some submitters commented that the Ombudsmen’s website is not intuitive, and it is possible for a newcomer to the OIA to be unaware of the very existence of the case notes or even the guidelines, and not to realise the usefulness of the Quarterly Review.

Ministry of Justice “Charging Guidelines for Official Information Act 1982 Requests” (March 2002).

Cabinet Office Cabinet Manual (Department of the Prime Minister and Cabinet, Wellington, 2008) at ch 8.

Cabinet Office “Access to Information of a Previous Administration” (4 December 2008) CO(08) 12.

State Services Commission “Release of Official Information: Guidelines for Co-ordination” (October 2000, last updated 4 August 2002). Available at <>.