Chapter 2: Decision-making

Introduction: the case-by-case system

Under the OIA and LGOIMA, whether official information is to be made available is to be determined:33

in accordance with … the principle that the information shall be made available unless there is good reason for withholding it.

This presumption in favour of openness has worked well and over a period of 30 years has led to a significant change in climate. There can be no suggestion, and no one has suggested, that the main principles of these Acts should be changed. The former State Services Commissioner, Dr Mark Prebble, has said that the OIA:34

… is the best reform that’s happened during my whole time in the public service; it has been good for every agency it’s been applied in.

The “good reasons” for withholding are set out in sections 6 to 9 of the OIA.35 Some are conclusive: they include prejudice to the security or defence of New Zealand, and prejudice to maintenance of the law. Others (those in section 9) may be overridden if there is a public interest in disclosure: they include protection of privacy, protection of obligations of confidence, and prejudice to commercial position. The reasons are for the most part expressed (as they must be) in broad and open-ended terms.

The assessment of whether a good reason exists in a particular case requires an exercise of judgement on the facts of that case. Our legislation does not, generally, exclude or include categories of information. We have what has been described as a “case-by-case” system. This requires a fact-specific assessment of each request by the agency, and also by the Ombudsmen in cases which reach them.36 This assessment requires not only close attention to whether a withholding ground is made out, but also, in the case of a ground in section 9, whether in the circumstances the public interest in disclosure overrides the ground.

The New Zealand OIA is well regarded overseas. In particular, Australian commentators have compared it favourably with the Australian system under which certain categories of document are exempted from disclosure (although these commentaries were written before recent amendments to the Australian legislation).37 In New Zealand it is the content of the information in the document in each case that matters, rather than the category of document.

Two English authors, writing in 2010, compared freedom of information legislation in Australia, Canada, Ireland, New Zealand and the United Kingdom. Taking into account not just the legislation but also the political and official support for it, they conclude that “the New Zealand FOI regime probably fares best”.38

The responses to our survey and submissions on the issues paper demonstrate strong support for continuing the case-by-case system. Indeed of 54 submissions, 46 supported it. Among the comments made by those in favour were that any system of categorisation by rule would not address the substance of the information; that the case-by-case system allows the Act to adapt to political and social change; that it makes allowance for the different types of document held by different agencies; and that it supports third party consultation.

We do not recommend any change from the case-by-case system.

OIA, s 5; LGOIMA, s 5.

Television interview with Dr Mark Prebble, former State Services Commissioner (The Nation, TV3, 3 April 2010).

LGOIMA, ss 6 – 7.

See Nicola White Free and Frank: Making the Official Information Act 1982 Work Better (Institute of Policy Studies, Wellington, 2007) at 248: “a strong belief in the case-by-case approach has been established through a combination of the focus on principle in the general framework of the OIA and the general approach of the ombudsmen, as the review authority that over the years has been primarily responsible for setting the tone of OIA administration. It is central to the general role of the ombudsmen that they look at the circumstances of every individual case that crosses their door.”

See for example Rick Snell “The Kiwi Paradox – A Comparison of Freedom of Information in Australia and New Zealand” (2000) 28 FL Rev 575; Jana Woodward “Trans-Tasman Freedom of Information” (A paper submitted for Honours Thesis, ANU College of Law, 10 June 2008).

R Hazell and B Worthy “Assessing the Performance of Freedom of Information” (2010) 27 Government Information Quarterly 352.