Summary

  1. The Official Information Act 1982 (the OIA) and the Local Government Official Information and Meetings Act 1987 (the LGOIMA) establish a regime of openness in central and local government respectively. They are based on the principle that if information is requested from public agencies, the information must be disclosed unless a good reason for withholding can be established. The only available good reasons are those provided for in the Acts.
  2. The context has changed dramatically since the Acts were originally passed. The technology revolution has made information much more readily available. This has increased public expectations of openness and has made a reality the proactive release of information without the necessity of anyone asking for it.
  3. The commercial setting has changed too. Many state agencies and local authority entities now operate in the marketplace where they deal with, or are in competition with, private organisations.
  4. The legislative landscape in which the official information legislation operates continues to shift. The Privacy Act 1993 and Public Records Act 2005, for example, impact directly on the official information regime, and the MMP electoral system has fundamentally altered the dynamics of New Zealand politics.
  5. Official information legislation has been the subject of review and consideration overseas as well as in New Zealand. This review has been informed by the thrust of reform in those other places.
  6. We have been very aware in conducting this review of the resource stringencies which currently affect government agencies as much as the private sector. There is no doubt that official information requests impose real burdens on agencies and this has been an important consideration in the way we have approached this review.
  7. The range of recommendations in this final report is wide. In addition to legislative amendment many recommendations propose development of guidance and best practice models.
 

The Act’s principles (chapter 2)

  1. We conclude that the fundamental principles on which the Acts are based remain sound. The presumption in favour of openness has had very positive results and the culture in government has changed markedly since the Acts were passed. We also support the fundamental approach of the Act that each case must be assessed on its merits: our regime leans against laying down rules about categories of information as other jurisdictions do. However while the fundamentals remain sound, time and experience, and the changes in context to which we have alluded, have made reform necessary.

The withholding grounds (chapters 3–8)

  1. Of necessity the withholding grounds in the Acts are stated at a broad level of generality. Difficulty can sometimes arise when applying them to particular fact situations. This can be especially problematic for small agencies who have not had frequent experience in applying the legislation. We think that for the most part legislative amendment of the withholding grounds would achieve little, and that what is necessary is improved guidance on how to apply those grounds.

Guidance

  1. We recommend that the Ombudsmen maintain a database of decided cases which can serve as examples and precedents, and that they revise the current guidelines about the withholding grounds, using decided cases as examples to provide more clarity. This is one of our key recommendations. We think it is particularly important in relation to the maintenance of the law, privacy, commercial interest and good government grounds. In relation to the last, uncertainty can arise about the respective roles of ministers and their departments in relation to OIA requests, and we recommend specific guidance on this relationship, in particular on which matters are more closely connected with the functions of Ministers so as to justify the transfer of requests to them.

Public interest

  1. Many of the withholding grounds are subject to a public interest override. In other words, even if such a withholding ground is made out, it can sometimes be overridden by the greater public interest in releasing the information. That override is sometimes not applied as well as it might be and again we think it would benefit from careful guidance with plenty of examples. We recommend a recasting of the relevant provision of the legislation in order to give the public interest requirement more prominence.
 

Changes to the withholding grounds

  1. In a few cases, though, we think that more than improved guidance is needed and that statutory amendment of the grounds is required. Feedback from submitters is to the effect that the good government grounds are currently obscurely and confusingly framed. We have carefully considered and consulted on these provisions and recommend a particular redrafting of them.
  2. We also recommend legislative measures to give clearer protection to commercial interests and third party information. That area is presently the focus of some controversy and dissatisfaction. We recommend the following measures:

·adding a new withholding ground based on the protection of financial and competitive position;

·where third party information is held by an agency, and the agency decides that the public interest requires its release to a requester, notice should be given in advance to the third party;

·in cases where information is released without properly considering the legislative criteria, the aggrieved person should have a right to complain to the Ombudsmen.

  1. We propose the addition of two new withholding grounds. One relates to information supplied in the course of a statutory investigation or inquiry. We recommend a withholding ground to cover information provided to investigations or inquiries authorised by statute where disclosure is likely to prejudice the outcome. The second proposal relates to cultural matters. There is currently a limited provision for this in LGOIMA but nothing equivalent in the OIA. We recommend that further work and consultation be undertaken to develop a withholding ground to protect sensitive cultural information.

Requests and resources (chapter 9)

  1. There is no doubt that handling requests can create a burden on agencies: communicating with requesters, finding the information and properly assessing it for release takes time and expertise. It is important that a correct balance be drawn between the freedom of information which is at the heart of the legislation, and the resources available to meet requests. Particularly troublesome are large ill-defined fishing requests which can require days, even weeks, of work. We think legislative change is necessary. We recommend amendments to clarify when a request may be refused because the information is publicly available, and deal also with the following matters.
 

Due particularity

  1. We think the term “due particularity” as used in the legislation in relation to requests needs clearer definition. There should be a duty on agencies to help requesters clarify requests which are insufficiently “particular”, but if that cannot be achieved the request will be of no effect.

Substantial collation and research

  1. We believe that the current ground for refusal of a request that the request requires substantial collation and research should be extended by explicitly recognising that the time taken in requisite consultation, and in assessing the documents, should be taken into account in determining whether the request places unreasonable burdens on the agency. We propose a test that the request can be refused if it substantially and unreasonably diverts the resources of the agency. Nevertheless, to ensure that there is a proper balance with the requirements of openness, we also recommend that a request should not be refused on this ground unless the agency has first attempted to consult with the requester.

“Vexatious” requests

  1. Frequent requesters can also be problematic for resource-strapped agencies. There currently appears to be some uncertainty as to what constitutes a vexatious request. We recommend a plain English definition of the term “vexatious” and a requirement that in determining whether a particular request is vexatious, the agency is entitled to look at the past conduct of the requester.

Processing requests (chapter 10)

  1. In Chapter 10 we examine some issues about processing requests. Some of these are quite technical but important nonetheless.
  2. In practice the 20 working days which the Act allows for making a decision on requests is also generally the time in which the information is released and we recommend this should be reflected in the legislation. We recommend clarification of the extension of time provisions to recognise that there can be one further extension of time beyond the initial extension and also clarification of the transfer provisions, to recognise in particular that partial transfers are permitted.
  3.  
  4. The Act is currently very unclear about the process for handling requests which are said by the requester to be urgent. Provided reasons for urgency are given, we recommend that an agency should afford a request urgency if it is reasonably practicable in the circumstances to do so. We also recommend that third parties should be notified if the agency decides that the public interest requires release of their private, confidential or commercially sensitive information.
  5. Finally, we recommend that there be regulations about charging for the supply of information. This is to ensure consistency and regularity among agencies on a matter where there is currently considerable variation in practice. However we identify that further work is needed to develop a comprehensive charging framework.

Complaints and remedies (chapter 11)

Alignment of process

  1. Currently the OIA provides for two quite distinct processes for review of decisions. Decisions on requests for access to official information under Part 2 of the Act are reviewed by the Ombudsmen using the processes specifically provided for by the OIA. Parts 3 and 4 are different. They relate to information to which there is a right of access, and access by bodies corporate to information that relates to them. Requests under Part 3 and 4 are currently seen as of a different order to requests under Part 2, and are dealt with by the Ombudsmen under the Ombudsmen Act rather than under the OIA. This duality is confusing and unsatisfactory. We recommend that the processes be aligned and that the prescribed process be contained exclusively within the OIA.

New grounds of complaint

  1. This chapter also recommends that there be additional grounds of complaint to the Ombudsmen to cover unsatisfactory agency processes such as lack of timeliness, decisions on transfer, and failure to give notice to third parties where required.
  2. More significantly, we also recommend that just as failure to release information can be a ground of complaint, so should there be a right for persons to complain if they feel information has been wrongly released. This would not be an appeal as such. The damage will already have been done. But it is an opportunity for the Ombudsmen to pronounce on review that proper considerations were not taken into account and that the agency did not apply the statutory requirements satisfactorily. It would, in other words, be a further incentive for agencies to apply the provisions of the Act with proper care, and the Ombudsmen’s decisions would serve as further valuable guidance on the proper application of the Act.

Enforceability

  1. The chapter also deals with the enforceability of Ombudsmen recommendations. Such recommendations are declared by the Act to create a public duty unless they are vetoed, but the legislation leaves open how that public duty is to be enforced. We recommend that that gap be filled by providing that the individual concerned can bring proceedings against the agency.

The veto

  1. At present the Ombudsmen can recommend release of information which an agency has wrongly withheld. That recommendation can effectively be vetoed by Order in Council in the case of central government, and by the Local Authority itself in the case of local government. In the Issues Paper we gave careful consideration as to whether the right of veto should be retained, given that it is almost never used.
  2. We have concluded, as the result of submissions, that, in the case of central government in particular, the veto serves a valuable role in delineating the relationship between the Ombudsmen and the Executive. Its very existence serves to maintain the appropriate equilibrium even if the veto is never used. We have decided to recommend its retention.
  3. We have decided similarly in the case of local government, but recommend that there should be an alignment there with central government by providing that it should not be the local authority itself which exercises the veto power, but rather that it should be done by Order in Council. That is already the case in relation to a number of bodies which, although they are of a local character, are subject to the OIA.

Proactive release (chapter 12)

  1. The subject matter of Chapter 12 is among the most important in the report. Digital technology now enables much information to be proactively released to the public without any need to ask for it. That is already happening on two fronts.
  2. First, the 2011 Cabinet Declaration on Open and Transparent Government directs central government agencies and encourages others to proactively release high value data. The New Zealand Government Open Access and Licensing Framework (NZGOAL) policy encourages agencies releasing data in this way to license its reuse by members of the public.
  3. Secondly, there is a growing trend for departments and other agencies to release important policy documents publicly and place them on their website. Many Cabinet papers are now made available in this way. The rationales for these two parallel initiatives are different, but their thrust is the same: namely that government-held information should be made freely available. This is in line with a purpose of the OIA which is stated in section 4 to be “to increase progressively the availability of official information to the people of New Zealand.”
  4. The benefits of proactive release are obvious, not least that it removes the need for individuals to request information and absolves the agency from the need to deal with multiple requests. We believe that the official information legislation should recognise the value of this practice, and while stopping short of requiring specific categories of information to be released, it should impose a duty on agencies to take reasonable steps to proactively release material. What is reasonable, of course, would depend on the nature of the information and the nature and resources of the agency. This, we believe, is the way of the future: increasing transparency and availability of information. Such a development should alleviate to some degree the present concern about the workload engendered in dealing with requests.
  5. Confusion also appears to be developing around how the withholding grounds in the OIA relate to proactive release. We believe the legislation should clarify that relationship. Currently, the withholding grounds are limited to cases where information is requested by a particular requester. Proactive release does not fall within that mantra. Nevertheless it is desirable that in proactively releasing information the agency should at least have regard to the withholding grounds, as they are designed to protect important public and private interests. Of particular concern are cases where the grounds protect third party interests. In the case of personal information, we believe it is the Privacy Act which should continue to govern, and that if sensitive personal information is inappropriately released proactively, a complaint may be made to the Privacy Commissioner. Where the information is of a commercial nature or is confidential and affects third parties, it should not be proactively released without the consent of those third persons.
  6. We also discuss the role of section 48 of the OIA, which exempts agencies from legal liability for the good faith release of information in response to an OIA request. Some agencies advocated that this protection from liability should apply also to proactive release. We believe that would go too far and cannot be justified. We recommend that section 48 should not apply in the context of proactive release of information to the world. Otherwise individual rights such as those to reputation, intellectual property and privacy would be inappropriately prejudiced. So might the public interest in such matters as the administration of justice.
 

Oversight and other functions (chapter 13)

  1. In striking contrast to legislation such as the Privacy Act 1993, the Public Records Act 2005 and the Human Rights Act 1993 which assign clear leadership functions, the OIA and LGOIMA confer very few functions on any agency. There is indeed only a complaints function, which is conferred on the Ombudsmen. The Ombudsmen have gone beyond the call of their statutory duties in trying to fill the void since the work of the Information Authority finished in 1988.
  2. In an age when transparency and openness are so important, and the pressure for access to information so demanding, we consider the policy issues require dedicated and balanced leadership. There is a strong relationship between our review and Government’s strategic objectives in bringing the public service into the digital age. Streamlining the operation of the official information function and encouraging more proactive disclosure of official information will potentially reduce the transaction costs of individual requests. We recommend the oversight functions which we believe are necessary to achieve these objectives. They should result in cost benefits.
  3. We recommend that the legislation should expressly provide for functions to ensure the proper working of the legislation and its continuing fitness for purpose, including its interaction with other legislation and policy relating to government information. We recommend that oversight could incorporate the following statutory functions; policy advice, review, promotion of best practice, statistical oversight, oversight of training for officials, oversight of guidance for requesters, and preparation of an annual report.
  4. We recommend that the guidance function should lie with the Ombudsmen, who are exercising it anyway in the absence of a statutory mandate to do so. We recommend that the oversight functions should lie with a statutory office or office holder. In its policy role, the office would not only lead and advocate good practice under the OIA and the LGOIMA, it would oversee the co-ordination of the official information legislation with the Public Records Act, which also covers both central and local government agencies. It would also facilitate and encourage the proactive release of information.
  5. In principle we are attracted to the idea of an Information Commissioner as exists in several other jurisdictions, but we recognise that it may not be practical to move to this model in the current fiscal climate. If this is the case, where the oversight functions should be otherwise placed within the State Services will depend on a number of organisational factors that go beyond the scope of this report.
  6. Nevertheless, we endorse further planning to develop an integrated management framework that can provide strategic oversight, leadership and co-ordination of all government held information. The location of that framework should take account of the fact that both central and local government are involved, that the functions are truly cross-government, and that they involve more than just the OIA but encompass the whole question of management and access to information.

Scope (chapter 14)

  1. One of the most difficult questions in all jurisdictions is which agencies should be subject to the official information legislation. The existence of state funding and state control are obviously two criteria. But they alone are not conclusive. We suggest that the criteria contained in the Legislation Advisory Committee Guidelines provide a useful starting point, although we suggest some additions to that list. We note that at present it is often not easy to determine which agencies are, and which are not, within the scope of the official information legislation, because currently one needs to refer to several acts of Parliament to get an answer to that question. We recommend that all the agencies subject to the OIA and LGOIMA should be comprehensively stated in the schedules to those two Acts. There should be no need to cross-refer elsewhere.
  2. More than that, we note some anomalies, or apparent anomalies, in the present schedules. Organisations which one might have thought should be there, sometimes are not, for no apparent reason. We recommend that a working party be set up to review the present schedules and to rationalise them in accordance with the criteria we have suggested to ensure that all agencies which should be within the scope of the legislation are included.
  3. We recommend that a number of specific agencies should be included within scope.

(a)The Officers of Parliament should be included with special exemptions in relation to their investigatory functions. These are the Office of the Ombudsmen, Office of the Controller and Auditor General and the Parliamentary Commissioner for the Environment. (At present only the Commissioner for the Environment is included and without the appropriate exemptions.)

(b)The Parliamentary Counsel Office should be included.

(c)Information about the courts should be included with regard to administrative matters but not judicial functions. Rather than use the general language of “judicial” and “administrative”, we specify the types of information which should be disclosable, and those which should not be. The judges are not part of the executive, and their special position must be recognised.

(d)Similarly certain information held by the Office of the Clerk and Parliamentary Service should be included, and also the Speaker in his role as Responsible Minister for the parliamentary agencies under the Public Finance Act. It is necessary to itemise the types of information which should be disclosable, and to specifically exclude some types which should not, particularly information which could affect the proceedings of Parliament. Parliament must remain in control of its own proceedings.

Legislation (chapters 15–16)

  1. There is a close relationship between the official information legislation and the Public Records Act 2005. The one prescribes what information should be maintained by agencies and the record-keeping practices which are necessary to maintain it. The other prescribes the making available of that information. We examine the inter-relationship between these two Acts, and recommend amendments where they are presently not entirely congruent. We also recommend that if an agency is unable to supply information for a reason which can be attributed to poor record keeping, the Ombudsmen should be able to refer the matter to the Chief Archivist who has authority to investigate further.
  2. There are some also inexplicable differences between the LGOIMA and OIA and we recommend alignment of those provisions.
  3. While some improvements can be made to the present position by guidance, education and improved practice, legislation is necessary to achieve proper reform. In some areas that need is urgent: the commercial interest withholding ground and the management of unreasonable and time-consuming requests are but two examples. The suite of reforms we recommend will conduce to better and appropriate flows of information in a modern society, and align with current government priorities as outlined in the 2011 report of the Advisory Group on Better Public Services. A recurring theme of that report is that citizens and businesses expect to have a say in State Services and that the direct influence of citizens and businesses on service delivery must be at the heart of State Sector reform. To accomplish this, more information must be available - but with the necessary boundaries imposed by resource constraints.
  4. We believe that the reforms we advocate can best be achieved by a new Act, rather than by piecemeal amendments to the old Acts. Things have moved on substantially in the 30 years since the OIA was passed, and it is time for a repeal and re-enactment. We also favour combining the OIA and LGOIMA, given the similarity between them. The message of openness may be thought to be strengthened by stating the overarching principles in one Act. But we are aware that this may create drafting complexities, and while a single Act is our preference, we leave that decision to the drafting experts.