Chapter 7: Other withholding grounds and reasons for refusal

Possible new withholding grounds

In the issues paper we asked whether there should be any new withholding grounds. We asked in particular whether there should be grounds relating to harassment or cultural matters.


In the issues paper we asked whether there should be grounds to withhold where that is necessary to protect an individual or individuals from harassment. We said that we were not inclined to expressly add such a ground. Section 9(2)(g) already goes much of the way. It provides that it is a ground for withholding where this is necessary to:246

maintain the effective conduct of public affairs through …

(ii) the protection of such Ministers, members of organisations, officers, and employees from improper pressure or harassment.

This ground is limited to cases where the effective conduct of public affairs would be prejudiced by the harassment. However, in cases where the sole concern is the protection of an individual employee from harassment we still believe, as we said in the issues paper,247 that the privacy withholding ground could be used. The privacy ground is not confined to informational privacy, but is capable also of dealing with unreasonable intrusion into another’s affairs. The possibility of harassment would seem to be a legitimate ground for declining to provide the name of a person, or other personal information about them, under the privacy ground.

We do not recommend the addition of a new “harassment” withholding ground.

R30The OIA and LGOIMA should not include, as a further reason for withholding information, that the withholding of the information is necessary to protect an individual or individuals from harassment.

Cultural matters

We raised in the issues paper the question of whether there should be a new ground in the OIA relating to the protection of cultural matters.

In LGOIMA there is already a ground justifying withholding:248

… in the case only of an application for a resource consent, or water conservation order, or a requirement for a designation or heritage order, under the Resource Management Act 1991, to avoid serious offence to tikanga Māori, or to avoid the disclosure of the location of wāhi tapu …

That ground is narrow, being confined to certain named applications or requirements within the purview of local government. There is a question about whether it may be too narrow. It also raises the question of whether there should be recognition of such grounds at national level. The NZGOAL framework, released in August 2010, which promotes open access and licensing of non-personal government materials, does recognise an exception when the material in question would “threaten the control over and/or integrity of Māori or other traditional knowledge or other culturally sensitive material.”249

Archives pointed out that their Guidelines advise that protection of traditional knowledge is a good reason to restrict access, and note the absence in the OIA of such a basis for withholding.250

Submissions to the issues paper were fairly evenly divided (13 for and 11 against). Local bodies were more supportive of the proposed amendment than the state sector, and several councils said the existing LGOIMA protection was narrower than desirable. We were given examples of reluctance on the part of iwi to have local authorities disclose information relating to such matters as burial sites, food gathering sites, middens or way stations. Often such information is supplied to a local authority on an understanding of confidence, and it is likely that the existing withholding ground in section 7(2)(c)(i) of LGOIMA would apply. Yet there is a question whether that ground will always be sufficient, and a more explicit provision might give more certainty.

We support in principle the addition to both the OIA and LGOIMA of a new non-conclusive withholding ground relating to cultural matters. But several submitters to the issues paper who were broadly in support of such an initiative thought that more work is needed before formulating the ground to determine its coverage and extent. We recommend that the Government set up a working party to examine the matter and consider the exact terms of such a withholding ground.

R31The Government should establish a working party to examine whether there should be a new ground in the OIA relating to the protection of cultural matters, and if so, what its terms should be; and whether such a ground should also be included in the LGOIMA to supplement or extend the existing ground in that Act relating to the protection of tikanga Māori or wāhi tapu (in relation to certain matters under the Resource Management Act 1991).


Court proceedings

The OIA and LGOIMA are sometimes used in connection with court proceedings, actual or prospective.251 In the case of criminal proceedings a provision was inserted in each Act in 2009252 to the effect that it is a reason for refusing a request under those Acts:

(da) that the request is made by a defendant or a person acting on behalf of a defendant and is –

(i) for information that could be sought by the defendant under the Criminal Disclosure Act 2008; or

(ii) for information that could be sought by the defendant under that Act and that has been disclosed to, or withheld from, the defendant under the Act:

The question is whether there should be a mirror provision in relation to civil proceedings. Legal firms acting for commercial interests, NGOs and community groups sometimes use the OIA to obtain information which may be of relevance in civil proceedings to which they are party, or to obtain information with a view to determining whether there may be grounds for commencing proceedings. The latter sometimes assume the characteristics of a “fishing” expedition. Information for use in litigation can also be obtained through discovery under the rules of court. Those rules also allow for pre-trial discovery. If that route is chosen, the discovery is subject to the scrutiny of the court; less information may be disclosed than is available under an OIA request, and the cost may be greater.

The question, therefore, is whether the use of the OIA in litigation should be curtailed if the same information could be obtained by discovery. Should there continue to be two routes? The problem with attempting to close off the OIA route is that information held by government must be disclosed unless there is a good reason for withholding it. The purpose for which it is requested is irrelevant. At least in the case of pre-trial requests it is difficult to see how one could impose the mooted restriction unless it were mandatory for a requester to disclose the purpose for which it was being requested, a course we have elsewhere in this report decided not to recommend.253 Moreover the use of the OIA in this way is commonplace, and judges have not questioned it. It can save a litigant considerable expense. As current Ombudsman Dr David McGee has said in a published article:254

There are many cases in which the facts set out in the judgments are drawn seamlessly from material elicited under the OIA and from discovery. Judges seem to have no problem with using such material regardless of its provenance.

The dual route is available in other jurisdictions as well. We have concluded that we should not disturb what has been a long, and judicially sanctioned, practice. The main concern of those who object to the practice is the burden of time and expense it puts on the agency, as occurs with any such “fishing” expeditions. Stricter use of the reasons for refusal in the Act, and a review of charging practice that we recommend in chapter 10, are a means of mitigating these concerns.

LGOIMA, s 7(2)(f)(ii).

Issues Paper at [7.12] – [7.13].

LGOIMA, s 7(2)(ba). Compare the Government Information (Public Access) Act 2009 (NSW), s 14, providing that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to have one or more of the following effects: “(b) prejudice the conservation of any place or object of natural, cultural or heritage value or reveal any information relating to Aboriginal or Torres Strait Islander traditional knowledge.”

State Services Commission New Zealand Government Open Access and Licensing Framework (NZGOAL) (August 2010) at [29(g)].

Archives New Zealand Making Access Decisions under the Public Records Act (issued 2003, revised December 2005) at [5.1].

See Mai Chen Public Law Toolbox (LexisNexis, Wellington, 2012) at [10.4.19(a)].

OIA, s 18(da); LGOIMA, s 17(da).

See [9.76] – [9.81].

David McGee “The OIA as a Law Tool” [2009] NZLJ 128.