Official Information Act 1982

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Official Information Act 1982
Coat of arms of New Zealand.svg
New Zealand Parliament
An Act to make official information more freely available, to provide for proper access by each person to official information relating to that person, to protect official information to the extent consistent with the public interest and the preservation of personal privacy, to establish procedures for the achievement of those purposes, and to repeal the Official Secrets Act 1951
Date of Royal Assent 17 December 1982
Date commenced 1 July 1983
Administered by Minister of Justice
Introduced by Jim McLay
Amendments
None
Related legislation
Local Government Official Information and Meetings Act 1987
Status: Current legislation

The Official Information Act 1982 is a New Zealand law which replaced the Official Secrets Act of 1951 which made the release of information held by Government agencies an offence.[1] The Official Information Act takes the opposite approach and is designed to promote access to information held by various Government agencies. Its guiding principle is that information should be made available unless a good reason exists under the Act for withholding it.

Requests to Government Departments or State agencies for information are supposed to be answered within 20 working days. If an agency declines to provide the information, it must provide a reason and advise the requester that they have the right to ask the Ombudsman to investigate whether or not that decision is justified under the provisions of the Act.

State Agencies covered by the Act[edit]

The Act is an implementation of Freedom of information legislation. It creates a regime by which people can request and receive information held by government officials and bodies. The scope of the Act is extremely broad, and includes all information held by any Minister in their official capacity, or by any government department or organisation (as listed in the Act or the Ombudsmen Act 1975). This includes government ministries, hospitals, universities, schools, the Security Intelligence Service, and even state-owned enterprises. Information held by local government bodies is also available to the public but covered by the Local Government Official Information and Meetings Act 1987.

Information covered by the Act[edit]

Information can be requested about:

  • any specified official information held by a state agency;
  • the internal policies, principles, rules or guidelines used by a particular agency;
  • the agendas and minutes of meetings held by public bodies, including those not open to the public;
  • personal information about someone other than yourself (which may be declined if it breaches the other person's privacy).

Under the Act, individuals can also request the reasons for any decision made by a government agency about them personally. However, complaints about breaches of privacy should be made to the Privacy Commissioner under the Privacy Act 1993[2]

Principle of availability[edit]

The guiding principle underlying the Act is the principle of availability: "That information shall be made available unless there is good reason for withholding it". Its purpose is defined more specifically in section 4 as follows:

  • to increase progressively the availability of official information to the people of New Zealand;
  • to promote more effective public participation in the making and administration of laws and policies;
  • to promote the accountability of Ministers of the Crown and government officials;
  • and thereby enhance respect for the law and to promote the good government of New Zealand.

The Act also includes provisions which protect sensitive information where this is necessary in the public interest or to preserve personal privacy. [3]

Legitimate exclusions[edit]

Reasons for agencies to withhold information include national security or international relations; that the information requested was supplied by another government in confidence; that the information affects the maintenance of the law, personal safety, or may cause severe economic damage. Other reasons include:

  • protecting personal privacy;
  • protecting trade secrets;
  • protecting information given in confidence;
  • protecting public health and safety;
  • protecting New Zealand's economic interests, or members of the public from material loss;
  • protecting the confidentiality of ministerial discussions and advice;
  • protecting the "free and frank advice" of officials, and Ministers from harassment;
  • legal or professional privilege;
  • commercial confidentiality;
  • allowing the government to conduct negotiations; or
  • preventing the use of official information for "improper gain or improper advantage";

Requests can also be refused if release of the information would contravene the law or constitute contempt of court, or for administrative reasons (because the information will soon be made publicly available, that substantial research is required, or simply because it is vexatious).

Public interest concerns[edit]

When a Government agency refuses to supply requested information, the refusal must be weighed against the potential 'public interest' in the information.

Request process[edit]

Requests for official information may be made by New Zealand citizens or residents (including anyone present in New Zealand) or by body corporates incorporated in New Zealand, or having a place of business in New Zealand. Government organisations have 20 working days to respond, and if a request is refused in whole or in part, they must give reasons for the refusal. Decisions can be appealed to the Ombudsman. Organisations can charge for large requests, but this is very rare.

The role of the Ombudsman[edit]

When a Government agency declines to provide the information requested (for any reason), it is required to advise the person seeking the information that they can ask the Ombudsman to investigate the whether the refusal is justified under the Act.[4]

OIA statistics[edit]

In 2011/12 the Ombudsman received 10,636 complaints. Part of this was due to an increase in complaints about the Earthquake Commission and the Canterbury Earthquake Recovery Authority such that by 2011, the total number of complaints being received was double that provided for by the baseline funding.[5]

In 2013, the Ombudsman received 13,684 complaints, an increase of 29% on the previous year. The Ombudsman described this as "an unprecedented increase in demand for its services...for the second year in a row.[6] In response the Government provided extra funding in the budget in both 2013 and 2014.

Attempts to circumvent OIA[edit]

In the last few years the Ombudsman has repeatedly expressed concerns that Government agencies are trying to get around the Act. She says there is an increasing number of officials in government who fail to understand the constitutional importance of the legislation and that this trend was 'reprehensible' and 'extremely dangerous'.[7]

New Zealand Herald senior reporter, David Fisher, says when he started as a journalist 25 years ago, getting information from public servants was easy. He would simply call them on the phone. In October 2014 he gave a speech in which he said the OIA legislation has made it harder, rather than easier, to get information. He believes that public servants are now so afraid of embarrassing their minister that they now "block requests for as long as they can and delete as much as they can using whatever section of the OIA act that they can." Because less information is forthcoming, journalists send more and more OIAs. Fisher says "It turns into a bizarre arms race."[8]

In September 2014, former Customs lawyer, Curtis Gregorash, said "he was told by senior Customs executives to refuse Official Information Act and Privacy Act requests."[9] Chief Ombudsman Dame Beverley Wakem said she was "appalled" by Gregorash's claim. She said an inquiry would be held after the September election to compel evidence to be given under oath if she found Government agencies were holding back information without good reason.[10]

The following month, Prime Minister John Key admitted the Government deliberately delays releasing official information "if it is in its best interest to do so." Although it is legally obliged to respond to OIA requests within 20 days, Radio New Zealand said it took 17 months for Government to release official advice on child poverty which RNZ had requested.[11]

In December 2014, the chief Ombudsman, Dame Beverley Wakem, began a major review of the Official Information Act to assure the public that "both the letter and the spirit of the law were being followed by the public sector". Altogether 63 state agencies and all 27 ministers' offices will be asked to complete a detailed survey. Twelve of those agencies have been selected for a more formal review, based on their size, the number of OIA requests they receive, and the number of complaints.[12]

See also[edit]

References[edit]

  1. ^ Steven Price, The Official Information Act, Victoria University, p3.
  2. ^ Official information: Your right to know, Ministry of Justice
  3. ^ Official Information Act, New Zealand legislation
  4. ^ Part 5, Official Information Act
  5. ^ Bulging backlog creating a 'crisis' in Office of the Ombudsman, NZ Herald 15 February 2012
  6. ^ Highest ever number of complaints for Ombudsman, Press release 15 October 2013
  7. ^ Top-level alarm over secrecy trend, NZ Herald 28 September 2012
  8. ^ Fisher, David, David Fisher: OIA a bizarre arms race, NZ Herald, 23 October 2014
  9. ^ Listen to audio interview: Ex-govt lawyer's 'bury bad news' claim, New Zealand Herald, 19 September 2014
  10. ^ Ombudsman 'appalled' by ex-Customs lawyer's OIA allegations, NZ Herald, 19 December 2014
  11. ^ PM admits Govt uses delaying tactics, RNZ 16 October 2014
  12. ^ Government offices selected for OIA review, New Zealand Herald, 17 December 2014

External links[edit]