Chapter 2: Decision-making

The future

The question is how more certainty and consistency can be obtained.

Amending the Act

We have considered whether amending, or redrafting, the withholding grounds would help. In theory there are two possible types of amendment.

First, a small number of responses to our survey suggested that where a consistent practice has been developed by the Ombudsmen over the years, that practice should be codified in the Act itself in the form of rules, supplementing the various withholding grounds. We are not in favour of this. Giving practice statutory authority could diminish the need to examine each case on its merits, as the statutory rule would be likely to operate too rigidly. Such codification could also reduce flexibility, and freeze the present practice in time. As we have noted elsewhere,44 international commentators regard New Zealand’s lack of codification as a strength. The Commission has no inclination to replace the case-by-case system with a system of rules.

A second method of statutory amendment is to attempt to redraft troublesome withholding grounds in plainer and simpler language. The objective would not be to change the substance of the grounds, but to convey their meaning in a more user-friendly way. However, in the case of most of the grounds we do not think that there would be much benefit in this. Most of the withholding grounds are expressed in short and relatively clear form. They are certainly open-ended but their purpose requires that they should be.

The main difficulty is not that the grounds are hard to read or understand. It is that applying them to a multitude of different circumstances is often not an easy task. In most cases, redrafted grounds would not be guaranteed to serve any better than the present ones. Difficult marginal cases will arise whatever the form of words. One submitter said, perceptively:

Most officials participating in this survey find that the OIA is reasonably easy to read and understand (although it is sometimes difficult to apply).

There is also a danger in re-expressing long-established provisions. Changes in wording can create new uncertainty, and render of less value earlier precedents and Ombudsmen’s rulings. Even if there is no intention to change substance, there can often be an argument that the new and changed wording has inadvertently done so.

So we are of the view that most of the withholding grounds should not be redrafted. However there may be a few that should. A small number of grounds have given particular difficulty, among them the “good government” and “commercial” grounds. In later chapters we shall examine these to see whether the way they are expressed has contributed to this difficulty. We believe the wording of the withholding grounds should only be changed if the present form of expression is obscure, or constitutes a real barrier to understanding, or is in some way misleading, or leads to a result which is clearly unsatisfactory in practice. It should only be done if the redrafted version would be clearly better.

Making regulations

It is noteworthy that in the OIA as originally enacted, it was envisaged that the Information Authority would recommend the making of regulations prescribing categories of information which should be available as of right, although not categories which should be immune from disclosure.45 There remains a vestige of this in the present Act: section 21(2) provides that a requester has a right of access to any category of information “that is declared by regulations made under this Act to be a category of official information in respect of which a right of access exists”. No such regulations have been made, and it is perhaps questionable whether section 21(2) was meant to survive the demise of the Information Authority.

In chapter 12, where we discuss proactive release and publication, we explore whether there may be a role for regulation, or another form of directive, to prescribe certain types of information which should be published proactively without the need for a request. Even then such prescription should not be absolute: care would need to be taken in each case that the material proactively published did not contain items which should properly be withheld, for example because they might prejudice the maintenance of the law or because they had been received in confidence.

While there may indeed be a case for directives prescribing the release of certain types of information we do not favour the converse position – directives enabling the withholding of defined categories of information. Such rules would be too rigid, and would militate against the sensitive appraisal of facts which is such a strength of the New Zealand system. It would be a move to a system of withholding based on categories of document, which we do not support.


Cases, guidelines and commentary

Rather than prescribe by regulation, or attempt widespread statutory amendment, we think the solution lies in better guidance. We believe that it would be desirable to have a set of firmer guidelines than currently exists, to supplement the case-by-case approach. Given the open-textured nature of the Act, it is important to have a detailed system of guidelines underlying and supporting its principles. In her book, Nicola White reached a very similar conclusion.46 While not advocating a system of formal rule-making she did support a system whereby the Ombudsmen could develop a more overt system of precedent and the State Services Commission could develop guidelines drawing on Ombudsmen rulings.

While the system we are considering is not on all fours with this, it has much in common with it, and serves to meet the almost universal call we have had from agencies for more certainty in how to apply the Act. It is noteworthy that even the architects of the Act, the Danks Committee, did not believe that the case-by-case system could ever on its own be enough. They saw “substantial disadvantages” in leaving matters entirely to the application of broad criteria and deciding the application and interpretation on a case-by-case basis. They saw lack of consistency as a problem.47

The solution we propose contains three elements. First, we believe that as many as possible of the Ombudsmen’s case determinations should be publicly accessible. The case notes presently on the website, although they number in the hundreds, are far from a complete set. It may be possible to fill some of the gaps retrospectively. Even if it is not, we recommend that for the future, significant opinions of the Ombudsmen should be routinely and consistently published.48 Preferably these should not be brief summaries, but the full opinions. They should be readily accessible. They should be searchable, and they should also be indexed, not just under the relevant sections of the Act but also according to the type of information involved.

If this is done, officials considering whether to withhold information under one of the withholding grounds in the Act will be able to check to see whether there have been comparable cases, and the decisions which were reached in them. The public will also be able to hold the officials to account against published decisions. The Ombudsmen are supportive of the idea, noting that it would significantly expand the pool of available case records and increase transparency.

Consideration might in due course be given to uploading the case database to NZLII, and possibly from there to an international freedom of information resource website. We note that the Privacy Commissioner’s case notes are currently available on NZLII,49 and also on the International Privacy Law Library.50 The cross-fertilisation of materials from other jurisdictions can provide useful insights and comparisons.

It may be thought that section 21 of the Ombudsmen Act 1975, which requires the Ombudsmen and their staff to maintain secrecy in respect of all matters coming to their knowledge in the exercise of their functions, is an impediment to the publication of opinions. However it has not been regarded as such. Rule 2 of the Ombudsmen Rules 1989 provides that the Ombudsmen may publish “reports relating to any particular case or cases investigated by an Ombudsman”. This authorises the publication of case notes, and probably full opinions as well. But to put the matter beyond doubt we recommend that the OIA itself be amended to empower the publication of opinions. This would not only make it clear that the secrecy provision is qualified in that regard, but would make publication of decisions a statutory power of the Ombudsmen. If confidentiality were ever to be a difficulty, they could be made anonymous.

Secondly, and perhaps most importantly, we recommend that the Ombudsmen publish guidelines on the application of the Act which are firmer and, where possible, more specific than the current Practice Guidelines. They would replace those current Guidelines. The new guidelines should make frequent reference to real case examples to “put flesh on the bones”. They could contain links to the case database. As the Ombudsmen said in their submission to the issues paper, the focus should be “on providing practical and succinct advice illustrated by real-life examples.”

Those real-life examples would serve two purposes. One is that officials might see an analogy between one of the examples in the Guidelines and the problem with which they are confronted. Also, real-life examples will enable the reader to better understand the abstract and open-ended propositions in the Act.51 The examples will, as it were, help to give shape to the abstract withholding grounds. We are reminded of the words of Lord Denning:52

I often cannot understand [the words of a statutory provision] by simply reading it through. But when an instance is given it becomes plain. … To make it intelligible you must know the sort of thing Parliament had in mind, so you have to resort to particular instances to gather the meaning.

The responses to our survey and submissions to our issues paper confirm that the availability of examples is exactly what is wanted:

[Guidelines] would be particularly useful if they contained specific examples or case-studies as opposed to merely summarising general principles.

[There] could be examples of what not to withhold.

Scenarios as well as cases would be helpful.

In addition to the case examples, however, the Guidelines should also, where possible, state principles and presumptions. A line of cases may establish a clear and consistent trend of decision-making. If it does, the principle which thus emerges could be stated in the Guidelines. It would operate as a presumption for future decisions.

In recent years the Ombudsmen themselves have been moving in precisely this direction. In their 2009 Annual Report they cite two such areas. They say:53

As a general rule, the identities of contractors awarded public sector contracts whether by tender or not, and the total cost of those contracts, should always be disclosed in the public interest … The key principle is that there is a fundamental and overriding public interest in total transparency about who is awarded public sector contracts … While the possibility must be kept open as a case may arise where anonymity may be necessary, such a case has not yet been identified.

They reached a similar conclusion about severance payments:

In respect of severance payments, disclosure of the fact that a severance payment has been made to a public sector employee is clearly in the public interest. Therefore this information should, as a general rule, always be made available without undue delay. However, disclosure of the amount of such a payment and any conditions of the settlement agreement upon termination of employment, will depend on the circumstances of a case … If the information relates to a senior employee, and the severance or exit package is sizeable, it is unrealistic in the current public sector environment to expect that such information should remain private and confidential.

In a similar vein, the Ombudsmen have issued guidance about events funding by local authorities. They have published a summary of the main issues that arise and the general approach they are currently taking in cases where a local authority has entered into some form of funding arrangement. They have identified principles of general application.54

In their submission to our issues paper, the Ombudsmen list areas where it would be possible to lay down “principles of general application in relation to frequently recurring requests and types of information”. They instance officials’ names, public sector salaries, severance payments, draft documents and informant identities. We support such a development.

The Ombudsmen are the obvious agency to develop and publish these Guidelines. They have practical experience of the working of the OIA which is unmatched by anyone else. They decide the cases on which the Guidelines are based. Above all, they are independent. They already publish Guidelines and other guiding material, and there is no reason to remove that task from them. Submissions on our issues paper strongly supported their continuing with this function. But given that accessibility and ease of use are important considerations, we suggest that it would be helpful if, in preparing the Guidelines, the Ombudsmen consult with the oversight office we recommend in chapter 13.

Thirdly, we believe that, once the case database is properly operative, it would be beneficial to produce a commentary on the cases. The commentary would analyse all the available cases from 1982 until the present, and be updated periodically. It would note any trends in decision-making from which it would be possible to deduce principles.

Moreover, the commentary would analyse not just the facts and the decisions of the cases, but also the reasoning in them. It may be able to draw attention to considerations which have regularly been taken into account in deciding whether information should be released. These considerations could relate to types of information, and also to surrounding circumstances favouring release or withholding as the case may be. They might include such things as the amount of public money involved, the level at which decisions have been taken, whether the information reveals mismanagement, whether the issue is one which has already attracted controversy, and so on. Officials uncertain whether to release information in a particular case might find guidance in such discussion even if there is no case whose facts are directly similar to their own.

We envisage that such a commentary would serve several purposes. First, in presenting the available case law it would enable what is effectively a body of jurisprudence to be seen as a whole, and its underlying philosophies to be made apparent. By contextualising the cases it would facilitate better understanding. Secondly, it could feed into the Ombudsmen’s Guidelines. It might reveal consistent themes or principles which could be introduced into the Guidelines. Thirdly, even though the Guidelines might provide no guidance on a particular issue, material in the commentary might. Finally, the commentary should assist navigation of the case database.

The recent book Access to Information now provides commentary on the Ombudsmen’s case notes that have been published to date, and makes a useful contribution towards fulfilling these three purposes.55 There are examples of similar undertakings in other areas of the law. The Broadcasting Standards Authority and the Press Council have built up a substantial number of cases over the years. Access to them, and understanding of them, has been significantly increased by analytical work done by Steven Price in his book Media Minefield.56 Likewise, the digest of the reports of Parliament’s Regulations Review Committee available on the website of the Centre for Public Law is a most valuable resource.57 One might also mention here, although the exercise is not quite the same, the valuable analyses of case notes of the Privacy Commissioner by Professor Paul Roth in his continually updated annotations to the Privacy Act.58

These authors show that commentary can transform an otherwise indigestible collection of individual cases into a body of jurisprudence. The new book Access to Information could be further expanded if more detailed case notes were made publicly available and if the Ombudsmen’s Guidelines were republished as suggested above. As more material becomes available for analysis, there might be sufficient demand for a loose-leaf publication that can be periodically updated, and that can be made available online. While this may be something an official in the Ombudsmen’s Office could do, we think there is much to be said for an independent person undertaking such an exercise. The commentary need not necessarily be on the Ombudsmen’s website. It would not have the same “quasi-official” standing as the case notes themselves or the Guidelines. But the website might usefully draw attention to the existence of the commentary.

So, we recommend a three–pronged solution to the present problem of uncertainty:

(a)A published, readily accessible database of opinions and case notes;

(b)A new set of Guidelines prepared by the Ombudsmen’s Office which (i) refer to case examples; and (ii) where appropriate state presumptions and principles derived from past cases;

(c)A commentary analysing the opinions and case notes.

A response to our survey advocates the methodology we are recommending:

Given that the OIA has been in force for almost 30 years it would be possible to have a precedent system or a record of presumptions for how to deal with commonly requested information (eg. lists, CVs, Cabinet papers, etc). These presumptions would still require consideration on a case-by-case basis but they would provide a starting point ie. the presumption/precedent would apply unless there was a good reason for it not to apply. Additionally, or alternatively, it would be helpful if there was a workbook of examples of requests together with an explanation of a) why the information was or was not released and b) if it was withheld or refused, the grounds on which that was done.

Statutory functions

The publication of cases and Guidelines is an important function. We believe the Ombudsmen should perform it, and that the Act should expressly confer it on them. The Act currently confers very few functions on anyone. In that regard it forms an interesting contrast to the Privacy Act 1993, which confers a large number of functions, including education and guidance, on the Privacy Commissioner, and the Public Records Act 2005, which confers a similar range of functions on the Chief Archivist. We return to this topic in chapter 13.

R1A new provision in the OIA and LGOIMA should expressly confer on the Ombudsmen the function of publishing opinions and guidelines on the official information legislation.

R2Significant case notes and opinions on the OIA and LGOIMA should be compiled and published in a readily accessible database. They should be indexed and searchable. The Ombudsmen should have power to make them anonymous where confidentiality is an issue.

R3The database of case notes should be accompanied by a regularly updated analytical commentary.

R4The Ombudsmen’s Guidelines should give specific examples drawn from previously decided cases, and, where appropriate, state presumptions and principles deriving from them.

R5In preparing the Guidelines the Ombudsmen should consult with the oversight office.

The advantages and disadvantages

The advantages of such a system may be thus summarised.

First, the Guidelines would provide greater certainty to agencies in their decision-making, and to requesters who would better know what to expect, and better understand why a certain decision has been made.

Secondly, the guidance provided would be derived from the experience of actual cases. Attempting to create rules without that grounded experience can lead to insufficiently precise formulations.

Thirdly, it would encourage greater consistency in decision-making. Sir Rupert Cross has said “the basic principle of the administration of justice is that like cases should be decided alike.”59

Fourthly, the creation of such a system would enhance practices both within agencies and in the Ombudsmen’s Office. It would lead to a more informative website and would be an incentive to explain reasons for a decision in the Ombudsmen’s case notes.

However some of the submissions to the issues paper, even though expressing support for such a system, noted reservations. These mainly centred around the fear that a system of rigid precedent might develop. There might be a tendency simply to follow earlier cases blindly, or to assume that principles were binding, admitting of no departure.

This is certainly not what is intended. It would effectively undermine the case-by-case approach. It would need to be made clear that the cases, and the principles, were starting points only, and would always be subject to the particular facts of each case. The system must enable different nuances in different fact situations to be recognised, and must also enable rulings to move with the times, and take into account changing expectations. The earlier cases and principles would, in other words, be persuasive only.

Some submitters also worried that the system we propose might become too legalistic. They feared that officials without legal training would be expected to argue the toss as to whether an earlier case could be distinguished from the present one. Provided earlier cases are not seen as binding precedents, and provided it is clear that each case must be judged on its own merits, we do not think that such legalism need develop. We are trying to achieve a workable middle way between consistency and reasonable certainty on the one hand, and flexibility on the other.



To operate as an effective determinant of behaviour, case notes and the guidance based on them should be accessible and prominent. We noted above that some submitters commented that they do not find the Ombudsmen’s website, and the OIA-related material on it, easy to navigate. Some said the website is “not intuitive”.

There was very strong support in submissions for an accessible, easily navigable website. Points made included that the website must be current, with obsolete information removed or qualified. If a case has become redundant it could be linked to the more recent case. Searchability was also strongly emphasised: one submission said the site should be searchable by section, ground, keyword example, and date. Others mentioned the desirability of interactivity with other websites.

We said in the issues paper that we favoured a dedicated official information website which, in addition to all the material provided by the Ombudsmen, would incorporate the guidance provided by other agencies involved in the Act’s administration – in particular the Ministry of Justice and the State Services Commission. The Ombudsmen, in their submission to our issues paper, acknowledge that the current website requires updating and reorganisation for ease of use, but are not convinced that a separate official information website is necessary at this point. We still have a preference for a separate, “one-stop shop” website to assist agencies. If this site were maintained and overseen, its links to other sites would remain up to date and user-friendly. However, that preference is not a rigid one. The main thing is that the website be clear and accessible, leading the officials easily to all information they may require.

Not everyone is yet comfortable using the internet. Given the importance of the expanded Guidelines we are advocating, we also believe there should be a hard copy manual containing them. It should be readily available at a reasonable cost.

R6An accessible and easily navigable website should incorporate all guidance on the OIA and LGOIMA prepared by the Ombudsmen and by other agencies involved in administering these Acts.

R7The Ombudsmen’s Guidelines should be available in hard copy as well as electronically.

See above at [2.5]–[2.6].

See OIA, s 38(1)(c) (expired 1 July 1988).

White, above n 36, at 241.

Committee on Official Information Towards Open Government: Supplementary Report (Government Printer, Wellington, 1981) at [3.05].

See, for example, Office of the Ombudsman “Requests for Documents Concerning the Government’s Mixed Ownership Programme” (Ombudsmen reference 318858, 319224, 319684, 24 November 2011), accessible under “Publications” on the Ombudsmen’s website.

New Zealand Legal Information Institute at <>.

Accessible at <>.

See for example Information Commissioner’s Office (England and Wales) The Guide to Freedom of Information (in plain English).

Escoigne Properties Ltd v IRC [1958] AC 549 at 566.

Office of the Ombudsmen Annual Report for Year Ended 30 June 2009 (Wellington, 2009) at 25.

Office of the Ombudsmen Events Funding by Local Authorities – Implications under the Local Government Official Information and Meetings Act referred to in Office of the Ombudsmen, above n 53, at 27.

Graham Taylor and Paul Roth Access to Information (LexisNexis, Wellington, 2011).

Steven Price “Media Minefield – A Journalist’s Guide to Media Regulation in New Zealand” (New Zealand Journalists Training Organisation, 2007) Part I.

Ryan Malone and Tim Miller Regulations Review Committee Digest (3rd ed, Wellington, 2009) available online.

Paul Roth Privacy Law and Practice (looseleaf and online eds, LexisNexis).

Rupert Cross and J W Harris Precedent in English Law (4th ed, Oxford University Press, 1991) at 3. See also Theodore Benditt “The Rule of Precedent” in Laurence Goldstein (ed) Precedent in Law (Oxford University Press, 1991) at ch 4.