Chapter 9: Requests and resources

The problems

In both the responses to our survey and the submissions on our issues paper there were some widely divergent views between requesters on the one hand and agencies on the other about the handling of requests.

Some requesters said that even where they have made requests which they regarded as perfectly reasonable they have sometimes been “given the run around” by agencies who have withheld information without proper grounds, stretched time to the limit, or even (on rare occasions) denied that they hold the information at all. We have no doubt that this does sometimes happen. In those cases it is not surprising that the requesters become persistent and ask the question in different ways, thus increasing the pressure on agencies.

On the other hand we are also satisfied that agencies are sometimes put under considerable pressure by certain types of requests, and rightly wonder whether something can be done to keep within reasonable bounds the resources they need to expend in meeting those requests. In this chapter we look at the types of request which can cause problems for agencies, and at solutions the OIA and the LGOIMA currently provide, or might provide in future.

 

Large requests and “fishing”

The first, and major, problem is the request for very large amounts of material, such as: “all briefing papers to the Minister over the past five years”; “all information about climate change”; “all information about delays on the XY commuter rail service over the past two years”. Some such requests are colloquially known as “fishing” requests: they ask for large volumes of material in the hope of finding something of interest. Such large requests require the expenditure of much time and resource. Sometimes just locating the material is time consuming, particularly if it is not all filed in one place (or even in one office) or if it is not filed or catalogued under the categories specified by the requester. A simple example of the latter might be material requested for a calendar year when the agency files it according to financial year; another would be a request for “accommodation expenses” when the agency files such details under the general heading of “travel expenses”.

But locating the material is just one aspect. Decisions may need to be made as to what parts of it are relevant to the request. And then much more effort may have to be expended in (a) perusing the documents to decide whether any part of any of them should be withheld; (b) consulting with other agencies and third parties; and (c) collating and preparing the material for transmission to the requester.

Some requests involve thousands of pages of material. We were told of several agencies that have brought in contractors at considerable cost to locate, examine and collate requested material. In one case a request engaged a staff member full time for three weeks. In another, staff members across the agency spent over 350 hours over and above their normal duties responding to one request. Sometimes, no doubt, poor record-keeping exacerbates the problem. The Public Records Act 2005, if properly followed, may lead to improvement. However, even with the best record-keeping in the world, some requests take a lot of time to satisfy.

The volume of requests differs from agency to agency, and from time to time within the same agency. It depends on the public interest in the subject matter. But, by way of example, one large agency to which we spoke received 129 departmental requests in 2009, many of them of significant size, and also had to deal with a further 46 requests to the Minister.

The importance of freedom of information is beyond question. But the expenditure of public money on this scale must be questioned. The Cabinet Office told us that the assessment and release of information requested in so called “fishing expeditions”:

… places undue emphasis on the principle of the progressive availability of information without an equivalent focus on the rider that this is “thereby to enhance respect for the law and to promote the good government of New Zealand.” Tying up policy staff for days reviewing reams of material is not necessarily the best use of taxpayers’ money. The Danks Committee and the Act itself realise that there will always need to be a balancing exercise. In some areas, such as fishing expeditions, I think we have reached the tipping point in terms of cost benefit.

Another response put the matter in these simple terms:

High volume requesters tax resources and patience.

Large requests are often made with perfectly proper motives, and with no intention to harass anyone. Sometimes the requester genuinely needs a lot of information: a researcher for example. At other times requesters genuinely do not know exactly what they are looking for, so go wide so as not to miss anything. Sometimes they do know what they want, but do not know in exactly what categories of document, or under what classification, it is located, so request documents from a wide variety of sources. Sometimes lawyers make wide-ranging requests to assess whether they might have grounds to commence court action: a kind “of pre-proceeding discovery” if you will. If they are too narrow they will not get what they want.

On other occasions the motive is the hope that the requester will find in a mass of information something negative about the government or an adversary. Lobbyists and researchers for political interests commonly do this. As one submitter put it to us, they are looking for “gotcha” moments. At other times, the motive may be to harass or make life difficult for an agency.

“Due particularity”

A second problem, which is sometimes linked to the first, is when the request is insufficiently precise to give the agency a clear idea of what information is wanted. “All information about climate change” suffers from that vice, in addition to being unmanageably broad. The Act requires that requests be made with “due particularity”. This is meant to ensure that requests are not unclear, but as we shall see shortly it does not always succeed in doing so. Time can be taken up trying to persuade the requester to clarify or narrow the request.

Frequent requests

A third problem is the frequent and persistent requester. Sometimes a requester comes back again and again with questions differing only slightly from questions previously asked, or with a succession of narrow questions which could have been combined in one original request. Sometimes agencies suspect, rightly or wrongly, that the motive is little more than the desire to harass.

Local authorities and school boards seem to experience this problem more than central government agencies. Dissatisfaction can manifest itself disproportionately in a small local community.

Multi-agency requests

A fourth problem which can compound the other difficulties is when the requester sends the same request to a multitude of agencies. We were told of cases where identical requests are sent, usually by email, to all local authorities in New Zealand. In cases such as this the request is sometimes only remotely connected, if at all, with the work of a particular authority, but can still take time to respond to. Time so spent is unproductive. Email has compounded the problem, for not only does it enable easy dissemination of a request; it can sometimes lead to the formulation of questions which have not been properly thought through and which therefore raise issues of due particularity.

As we have already indicated, the motives of people who make requests perceived as being unreasonable vary. Usually the motives are perfectly proper, and the requester is acting in a spirit of genuine inquiry – but not always.

It is vitally important that any reforms get the balance right. Steps to relieve agencies of unreasonable burdens must not prejudice or deter genuine requesters, and must not enable agencies to conceal information simply because disclosure would embarrass them. Freedom of information is too important a right. The Danks Committee emphasised this:263

It is evident that there is a price to pay for provision of more ready access to official information. A balance will, in the end, have to be struck between the need for readier access which this Committee endorses and the price of that access. Manpower resources … as well as financial considerations will need constant assessment before the correct balance between the price and the need can be struck.

We hope that the suggestions we make below will help both requesters to frame their requests properly, and agencies to handle them.

Committee on Official Information Towards Open Government: Supplementary Report (Government Printer, Wellington, 1981) at [4.40].