Chapter 9: Requests and resources

Recommendations for improvement

“Due particularity”

Section 12(2) of the OIA272 requires that the information requested must be specified with “due particularity” in the request. While lack of due particularity is not specified in section 18 as a reason for refusing a request, the clear implication of section 12(2) is that a request is not valid unless it makes clear what information is being sought.

Section 12(2) is not aimed at the quantity of information requested. As the Ombudsmen have consistently held, its purpose is to ensure that the recipient agency must reasonably be able to identify the information requested.

A large majority of submissions agreed that section 12(2) might be more clearly expressed. “Due particularity” is antiquated language. We received a number of suggestions for alternative wording, some based on equivalent provisions in overseas legislation. All of them emphasise that the essence of the requirement is for the agency to be able to identify what is wanted: that is, it must be able to know what it is that is being asked for. We prefer the following wording, which was an option put forward by the Ombudsmen:

The requester must provide sufficient detail to enable the agency to identify the information requested.

A number of agencies have told us that more should be done here. They have given us examples of requests for “lists of all briefings provided to the Minister between [certain named dates]”. They say such requests take an inordinate amount of time, and suggest that all requests should specify a subject-matter. We have concluded that this would be very difficult to do. “Subject-matter” is itself a nebulous concept. “Climate change” is a subject-matter, but so large as to be virtually unmanageable unless refined. So is “all briefing documents”. There may be good reason why an inquirer wants to know the kinds of things with which a Minister has to deal.

It seems to us that the crux of the matter is the expenditure of time which is involved in meeting such requests. We think that is best dealt with in other ways which we describe later in this chapter, in particular in the “substantial collation and research” ground.

Reasonable assistance

Section 13 of the OIA273 provides that it is the duty of an agency to give reasonable assistance to a person who “in making a request under section 12, has not made that request in accordance with that section”. This clearly links to the “due particularity” requirement that we have just discussed.

The Ombudsmen told us that in their opinion agencies do not always comply with the letter and spirit of section 13. The Ombudsmen suggested a number of ways of improving the situation. They are:

(a)The ability to declare a request invalid under section 12 could be made contingent on meeting the requirements of section 13.

(b)Section 13 could be amended to make clear that the duty to assist the requester includes a duty to assist him or her to frame the request with “due particularity” (or whatever terminology replaces it). (The Law Commission effectively so recommended in 1997.)274

(c)The legislation could spell out what constitutes reasonable assistance, such as providing an opportunity to speak with an agency contact person.

(d)The legislation might provide that a failure to provide assistance is itself a ground of complaint to the Ombudsmen under the OIA. (It may be possible to address the failure now under the Ombudsmen Act 1975, but there should be a right specific to the OIA, given that some agencies subject to the OIA are not within the Ombudsmen Act.)

We think the Act should be clear that there is a link between the “due particularity” requirement in section 12 and the duty to provide assistance in section 13. It is not in accord with the spirit of the OIA that an agency should be able to declare a request invalid because it is insufficiently clear without first trying to help the requester clarify what he or she wants. Of the solutions proposed by the Ombudsmen we endorse the first and the fourth. We think that the Act should provide that: (i) an agency should not treat a request as invalid for lack of due particularity unless it has first tried to assist the requester under section 12 to refine the request; and (ii) it should be a ground of complaint to the Ombudsmen that the agency has failed to provide such assistance.

We continue to support the Law Commission’s 1997 recommendation that section 13 should be clarified by expressly linking it to section 12(2). We believe that what should be required by way of reasonable assistance should be a matter of guidance rather than legislative prescription.

We agree, however, with the sentiments of several submitters that if attempts to assist fail and the requester maintains the request in its original form, the agency should be able to treat the request as invalid.

R35The requirement for due particularity in section 12(2) of the OIA and section 10(2) of the LGOIMA should be replaced with the following statement: “The requester must provide sufficient detail to enable the agency to identify the information requested.”

R36The OIA and LGOIMA should state that, where a request is insufficiently clear, the agency may not treat the request as invalid unless it has reasonably attempted to fulfil its duty of assistance under section 13 of the OIA and section 11 of the LGOIMA. The Ombudsmen’s Guidelines should give examples, if possible drawn from prior cases, as to what generally constitutes reasonable assistance.

R37Section 28 of the OIA and section 27 of the LGOIMA should provide for the Ombudsmen to hear complaints that an agency has failed to offer reasonable assistance to a requester under section 13 of the OIA and section 11 of the LGOIMA.

R38Section 13 of the OIA and section 11 of the LGOIMA should state that if, despite reasonable attempts by the agency to provide assistance, the requester maintains the request in a form which does not comply with section 12(2) of the OIA or section 10(2) of LGOIMA, the agency may treat the request as invalid.

 

“Substantial collation or research”

Under section 18(f) it is a ground for refusing a request if “the information requested cannot be made available without substantial collation or research”. The threshold is rightly set high. Yet we have the impression that many agencies are reluctant to use the ground for fear of being accused of acting contrary to the spirit of the Act. We are aware of some cases where the time the agency spent retrieving and collating information was quite disproportionate to their resources, and where the criteria in section 18(f) may well have been satisfied. Many agencies treat section 18(f) as a measure of very last resort.

In the issues paper we considered a number of ways in which this ground might be modified to provide more control over unreasonably large requests.

First, section 18(f) specifies collation and research as the only two matters which can be taken into account. Yet finding the material and collating it are not the only activities which take time. One of the most significant and time-consuming activities is perusing the material to assess whether it, or any part of it, should be withheld. There is some debate whether this activity does or does not fall within the expression “collation and research” and the Ombudsmen said that the meaning of the phrase is frequently contested. We think this should be clarified.

In the issues paper we suggested that the words “review and assessment” should be added to section 18(f). We also set out the equivalent provision in the Australian legislation which was referred to in the original Danks Report as a model which might be used if requests became unwieldy. What is now section 24AA of the Freedom of Information Act 1982 (Cth) provides that it is a ground for refusal if the work involved in processing the request “would substantially and unreasonably divert the resources of the agency from its other operations”. In making this decision the agency is to have regard to the resources that would have to be used:

(a)identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister; or

(b)deciding whether to grant, refuse or defer access to documents to which the request relates, or to grant access to an edited copy of a document, including resources that would have to be used for:

(i)examining the documents; or

(ii)consulting with any person or body in relation to the request;

(c)making a copy, or an edited copy, of the documents; or

(d)notifying any interim or final decision on the request.

The Australian version spells out in more detail the kinds of activities we had in mind when we suggested including the terms “review and assessment” in section 18(f). There was overwhelming support in submissions for our suggested amendment. However some of the arguments in the submissions which opposed our proposal have given us cause to reflect.

It is important that no amendment to the legislation unduly impairs the ability of legitimate requesters to get the information they want. That would be contrary to the purpose of the Act.

A few submissions made the point that our suggested amendment might well do that. While the time needed for locating, collating and reading material is objectively assessable, the processes for, and time spent in, deciding whether or not to release are much more subjective. They vary between agencies and depend on the type of information in question. There could be much room for arguing whether in a particular case it was necessary or reasonable to spend so much time deciding whether to release the information. The Ombudsmen said:

There is a risk that if substantial time spent reviewing and assessing information provides a reason for refusing requests, then high risk requests stand a greater chance of being refused. It is often the high risk requests that raise the strongest public interest considerations favouring disclosure, and for this reason we think the proposed amendment could significantly undermine access rights.

We are persuaded by this reasoning, and have decided not to add review or assessment to the list of activities which can be regarded to determine whether the burden on the agency is “substantial”. But we believe that the time spent reading the material should be able to be taken into account. That activity will always be necessary, and is capable of objective assessment. It is not obviously included in section 18(f) as currently framed.

We have also considered whether the time and resource which would be spent consulting other agencies can legitimately be taken into account in deciding whether to refuse the request. The Australian provision does allow for this. As we shall discuss shortly, consultation is not mandatory under the New Zealand legislation, and we do not recommend that it should be made so. However it is good practice, and agencies often, quite rightly, engage in it. Consultation between agencies is supported by the Cabinet Manual. Given that it is to be encouraged, we think the burden it can impose is a legitimate factor to be considered in determining whether a request is unreasonably large. Yet it would not be acceptable if agencies used this ground to take into account projected consultation which was greater than necessary. We would therefore wish to qualify this factor by providing that the consultation must be “appropriate”.

 

So we recommend that section 18(f) should be amended to provide that it is a ground for refusal where to make the information available would require substantial time:

(a)identifying, locating and collating the information;

(b)reading and examining it;

(c)undertaking appropriate consultation; and

(d)editing and copying the information.

This will add further clarity, and will meet the objection that reading, examination and consultation are not obviously included at present.

The second question relates to whether the term “substantial” needs further definition. We suggested in the issues paper that the section might define “substantial” with reference to the size and resources of the agency in question. A majority of submissions opposed this change. Among the reasons given were that it would mean smaller agencies could be more secretive; that it could create a perverse incentive to under-resource large agencies; and that the mere fact that an agency is large does not always mean it is better able to handle requests, because it is likely to get more, and larger, requests. We are persuaded by these arguments and no longer support this solution.

However we do think that the expression “substantial” would benefit from further definition, and are attracted to the formulation in the Australian legislation that the work involved:

… would substantially and unreasonably divert the resources of the agency from its other operations.

We recommend the adoption of this, or similar, wording in New Zealand.

We think that this, together with the other changes we recommend in this section, will go some distance in containing “fishing” requests.

R39Section 18(f) of the OIA and section 17(f) of the LGOIMA should be amended to state that an agency may refuse a request where substantial time would be required to:

(a)identify, locate, and collate the information;

(b)read and examine the information;

(c)undertake appropriate consultation; and

(d)edit and copy the information.

“Substantial” should be defined in the OIA and LGOIMA to mean that the work involved would substantially and unreasonably divert resources from the agency’s other operations.

 

Consultation

We now elaborate on the matter of consultation which we introduced at paragraph 9.40. Presently section 18B of the OIA275 places a duty on an agency to consider consultation in certain circumstances. The section reads:

If a request is likely to be refused under section 18(e) or (f), the department, Minister of the Crown, or organisation must, before that request is refused, consider whether consulting with the person who made the request would assist that person to make the request in a form that would remove the reason for the refusal.

In the issues paper we referred to the fact that consultation with a requester in the early stages can often be a way of refining an apparently unmanageable request so that it is able to be met.

A number of agencies told us of successful outcomes as a result of telephoning or meeting with a requester at the outset and agreeing an outcome satisfactory to both parties. Some requesters simply do not understand how much information is held, much of it not relevant to their request, and how much effort will be needed to provide it. Some, after discussion, may be perfectly content with a narrowed-down request, or to receive only a few of the many documents available, or to see a list of titles from which they can choose. The submissions we received give many examples of successful outcomes after discussion of this kind. For example:

We have had one instance where a large commercial law firm used the OIA to request a large number of documents and plans … and it turned out that when we sought clarification on what was actually required, the client was satisfied with a meeting and briefing and a site visit. In that case we asked the law firm to withdraw its request under the Act.

The Ministry’s general approach to fishing requests is to seek clarification. If the person does not want to narrow the scope of the request an extension or charging is sometimes considered. However, often the purpose of a request is to get some specific information and engagement with the requester to identify the specific information required can lead to the requester getting the right information. There have been instances where a meeting with the requester has been useful to both parties in locating the information that was sought.

Of course this strategy does not always work. Sometimes requesters are not prepared to modify their requests even after being told of the difficulties. However, as we said in the issues paper, there is surely a case for strengthening the present provision by providing that, where reasonably practicable, the agency must consult the requester before refusing the request rather than just considering consultation. This is equivalent to the duty in section 13 to provide assistance if a request lacks particularity.

A majority of submissions to the issues paper strongly disagreed with the imposition of a duty to consult. They said it was a matter of common sense and best practice rather than something which should be legislated for. Not all those disagreeing were public sector agencies. One advocate of open government simply said:

No. It is in their best interest to do so. If they don’t choose to, then that is their problem.

Others were worried that there might be difficulty knowing what would trigger the duty, and that consultation could be used by officials to delay a response. It was also suggested that such a requirement could put requesters in a bargaining position.

Yet consultation often proves valuable. One media group said that direct talks were helpful, and another that although they sometimes do make broad requests they are amenable to narrowing the scope if they are shown that the request in its original form is unreasonable.

In our view it is unreasonable for an agency to refuse a request outright under section 18(f) if they have made no effort to discuss the matter with the requester. We believe the Act should provide that a request should not be refused under s18(f) unless there has first been a reasonable attempt by the agency to consult the requester. A refusal without such an attempt should be the basis of a complaint to the Ombudsmen.

R40Section 18B of the OIA and section 17B of the LGOIMA should be amended to state that an agency may not refuse a request under section 18(f) of the OIA or section 17(f) of the LGOIMA unless it has first made a reasonable attempt to consult the requester.

R41Section 28 of the OIA and section 27 of the LGOIMA should provide for the Ombudsmen to hear complaints that an agency has not made a reasonable attempt to consult with the requester before refusing a request under section 18(f) of the OIA or section 17(f) of LGOIMA.

Time limits

The Act provides that an agency has 20 working days after “the day on which the request is received” to notify the requester of the decision to release or not.276  That time can be extended if the request is for a large quantity of information or necessitates searching through a large quantity of information; or if long consultations are necessary before making a decision. This allows large agencies to meet requests without placing unreasonable strains on its resources. This solution must be considered before refusing the request.277

There is, however, one question about which there is a lack of clarity in some quarters. It is relevant to the matters we have been discussing in this chapter. If a request, when first received, either lacks due particularity or requires “substantial collation and research”, but is then refined so that it is manageable, from which date does time run: the date of receipt of the original flawed request, or the date of the amended one? Common sense suggests the latter. Indeed the Ombudsmen submitted that no statutory amendment was necessary at least in relation to the “due particularity” ground. However we believe it would avoid doubt if the Act were amended. The amendment should be to the effect that if a request is revised after consultation, the revised request is to be treated as a new request for the purpose of the running of time. This reflects the position taken in section 88 of the Resource Management Act 1989.

The overwhelming majority of submissions to the issues paper agreed. Agencies should not be penalised for good faith consultation. However in so recommending we are alive to the fact that the provision should not allow agencies to “buy time” by waiting an unreasonable time after receipt of the original request before beginning the process of consultation which leads to the amended request. We therefore also recommend that an agency should not be able to take advantage of the new time limit unless it has made a demonstrable effort to clarify the request within seven working days of receiving it.

R42The OIA and LGOIMA should provide that, if a request for information is revised after consultation, the revised request is to be treated as a new request for the purpose of the 20-working day time limit in section 15 of the OIA and section 13 of the LGOIMA. An agency should not receive the benefit of this provision unless it has made a demonstrable effort to clarify the request within seven working days of receiving it.

Charging

Charging can be an effective deterrent to requesters making unreasonably large requests. Charging practice is currently very erratic. Many departments and agencies do not charge at all, for fear that it might be seen as being against the spirit of the Act. Some charge commercial enterprises, but not other persons. There is also a convention that MPs will not be charged.

The Ministry of Justice has issued guidelines on charging,278 but they are only guidelines, and do not apply to LGOIMA. In the responses to our survey there was a widespread desire for clear, uniform and authoritative guidance on when charging is appropriate. We believe that the Acts should continue to empower the making of regulations prescribing charges, and that regulations should provide much firmer guidance than exists at the moment. Uniform charging practices would not only enable agencies to recover overheads when that was appropriate but would also act as a deterrent to requesters making unreasonable requests.

Yet much care will be needed to ensure that the charging regime does not deter reasonable requesters. That would be to diminish the very purpose of the Act: increasing the availability of official information. We return to this difficult question in chapter 10.

Vexatious requests

A few requesters make frequent and persistent requests with little more elevated purpose than to annoy an agency with which they have had differences of opinion.

Submissions on the issues paper gave some interesting illustrations:

[We] have previously received a number of requests under the OIA from an individual who appeared to be motivated not by a genuine desire for the information itself, but, rather, by an apparent grievance against a Board member.

[The organisation] has experienced incidents in the past, where certain parties sought to overwhelm the organisation’s overall administrative and management capability by overloading it with OIA requests. In some instances the organisation received the same request, differing in minor ways, from hundreds of persons.

There clearly needs to be power to reject requests made with motives of this kind. Section 18(h) of the OIA allows refusal of a request if it is “frivolous or vexatious”.279  Many submitters said they felt that the current provision was not doing its job adequately in that it focuses attention only on the current request and not on the requester and his or her motives, and in particular on his or her past conduct. The Ombudsmen rightly insist on a high threshold before a request can be called vexatious. They say that is it not enough merely that a requester has already made numerous, possibly time consuming, requests. What matters, they say, is:280

… the nature of the request made in light of the surrounding circumstances.

Given the language of the Act, which focuses on requests rather than requesters, that must be correct. Nevertheless, the Ombudsmen go on to say that the past conduct of the requester is not entirely irrelevant. It is one of the “surrounding circumstances”:281

Past experience may indicate that a new request is simply an abuse of the official information rights … That is a judgment that must be made having regard to past dealings with that requester, but having had vexatious requests from a particular individual in the past is not of itself sufficient to conclude that a new request is also automatically vexatious.

Given that there seems to be some misunderstanding among agencies on this point we think there would be advantage in adding to paragraph (h) of section 18 words making it clear that the past conduct of the requester may be taken into account in assessing the character of the present request. That past conduct may include the fact that the requester has made a number of previous requests.

The term “vexatious” is simply not clear to some agencies: it is a legalistic and somewhat archaic term. Agencies seem afraid to apply it, believing that the threshold is almost unattainably high. We think it would benefit from definition, and in the issues paper put forward the suggestion that any definition should be centred on the concept of bad faith. Most submitters agreed that a definition would be helpful, but some doubted whether bad faith is adequate as a touchstone: it is not a particularly clear term itself, and may not adequately cover all cases, particularly those where the requester purports to be unable to understand an answer supplied and continues to ask the same or similar questions.

We are attracted to the definition of “vexatious” given by the Scottish Information Commissioner:282

A request may be considered vexatious where it would impose a significant burden on the agency and:

·it does not have a serious purpose or value; and/or

·it is designed to cause disruption or annoyance to the agency; and/or

·it has the effect of harassing the agency; and/or

·it would otherwise, in the opinion of a reasonable person, be considered to be manifestly unreasonable or disproportionate.

Those criteria could be contained in guidance or in the Act itself. Given that they have the effect of defining an otherwise unclear term we would prefer that they appear in the Act. We think that this would give agencies more certainty, and that they may be rather more ready than they presently are to use the power to declare a request vexatious.

We think two further, related provisions would be useful. The first is similar to that in the Criminal Disclosure Act 2008 to the effect that an agency can decline to provide information if the same or substantially the same information has been supplied to that requester before, provided there is no good reason for requesting again.283 (Sometimes there may be a good reason in that the information previously supplied has been lost, or that there is reason to suppose that additional information may now be available.)

The second proposed provision is that the agency can decline to provide information if a request for the same or substantially the same information has been declined previously. This is to stop a requester making repeat requests for the same information, or aiming at the same target from different angles. We are told that some requesters do this. Again it would be necessary to provide a qualification that there be no good reason for asking again: circumstances may have changed since the first request, and a further attempt to get the information now may not be unreasonable.

There was overwhelming support in submissions for these amendments, even though a few thought the “vexatious” ground is already sufficient to deal with the problem.

The issues paper then asked a much more difficult question: whether, in addition to a power to reject a request as vexatious, there should also be power in an agency to declare a requester to be vexatious, so that it might decline to answer any further questions from that person. Section 88(b) of the Judicature Act 1908 provides that a litigant can be declared by a court to be vexatious so that further claims by that person will be struck out as an abuse of process unless in a particular case the court declares otherwise. We note with interest that an amendment to the Australian Freedom of Information Act in 2010 enacts such a solution: the Information Commissioner is to have the power to make “vexatious applicant” declarations.284

Adopting this approach would be going a long way. It would allow an agency to “shut out” a particular requester, effectively banning that person from the right to which he or she would otherwise be entitled to get information under the Act. It would apply only in the most extreme circumstances; it would have to be subject to appeal, probably to the Ombudsmen; and it would presumably have to be subject to revocation or expiry after a period of time (to ban a person forever would obviously be too extreme).

While a majority of submitters supported such a power it was not a large majority, and some of that majority expressed reservations. Those who disagreed thought the remedy was too extreme, and that even the most unreasonable requester might occasionally make a request which is reasonable and deserves to be answered. Others thought such a solution would simply enlarge the scope for conflict and add to the costs of the agency. Others noted that it would not be difficult for the person to circumvent the “vexatious” label by making requests under an alias, or via someone else.

We have decided not to pursue this proposal. If the vexatious request route is clarified as we have recommended it should serve the ends appropriately.

R43Section 18(h) of the OIA and section 17(h) of the LGOIMA should be amended to make it clear that, in determining whether a request is frivolous or vexatious, the past conduct of a requester may be taken into account.

R44The OIA and LGOIMA should state that a request may be considered vexatious where it would impose a significant burden on the agency and it:

(a)does not have a serious purpose or value; and/or

(b)is designed to cause disruption or annoyance to the agency; and/or

(c)has the effect of harassing the agency; and/or

(d)would otherwise, in the opinion of a reasonable person, be considered to be manifestly unreasonable or disproportionate.

R45The OIA and LGOIMA should include new provisions stating that:

(a)an agency may decline to provide information if the same, or substantially the same, information has been supplied to the requester before, provided there is no good reason for requesting it again;

(b)an agency may decline to provide information if a request for the same or substantially the same information has been declined previously, provided there is no good reason for requesting it again.

R46The OIA and LGOIMA should not give agencies the power to declare a requester vexatious with a view to declining future requests from that person.

OIA, s 12(2); LGOIMA, s 10(2).

LGOIMA, s 11.

Law Commission Review of the Official Information Act 1982 (NZLC R40, 1997) at [83].

LGOIMA, s 17B.

OIA, s 15; LGOIMA, s 13.

OIA, s 18A; LGOIMA, s 17A.

Ministry of Justice Charging Guidelines for Official Information Act 1982 Requests (18 March 2002). Available at <www.justice.govt.nz>.

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

Office of the Ombudsmen Practice Guidelines – Official Information (Wellington, 2002) Part B Chapter 2.5 at 13.

At 13.

Scottish Information Commissioner Vexatious or Repeated Requests: Part 2, accessible at <www.itspublicknowledge.info>. The UK Information Commissioner has adopted the following guidance:

To help you identify a vexatious request, we recommend that you consider the following questions, taking into account the context and history of the request:

(a)Can the request fairly be seen as obsessive?

(b)Is the request harassing the authority or causing distress to staff?

(c)Would complying with the request impose a significant burden in terms of expense and distraction?

(d)Is the request designed to cause disruption or annoyance?

(e)Does the request lack any serious purpose or value?

To judge a request vexatious, you should usually be able to make relatively strong arguments under more than one of these headings.

The questions are likely to overlap, and the weight you can place on each will depend on the circumstances. You do not need to be able to answer yes to every question, and may also consider other case-specific factors. However, if you consider each of the questions in turn, you should be able to more easily and consistently assess the overall balance of the case.

Compare the Freedom of Information Act 1982 (Cth), s 99LL.

Section 16(1)(m). See also the Law Commission’s recommendation for an equivalent provision in the Privacy Act 1993: Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4 (NZLC R123, 2011) at R27.

Freedom of Information Act 1982 (Cth), s 89K.