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 assent17 December 1982
Date commenced1 July 1983
Administered byMinister of Justice
Introduced byJim McLay
Amends
1987[1], 2003[2], 2015[3]
Related legislation
Local Government Official Information and Meetings Act 1987
Status: Current legislation

The Official Information Act 1982 (sometimes known by its acronym OIA) is a statute of the New Zealand Parliament which creates a public right of access to information held by government bodies. It is New Zealand's primary freedom of information law and part of New Zealand's uncodified constitution.

The guiding principle of the Act is that information should be made available unless there is good reason for withholding it.[4] Requests to Government Departments or State agencies for information must be answered "as soon as reasonably practicable", and within 20 working days.[5] 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.[6]

Approximately 45,000 requests are made under the Act each year, with over 90% of them answered within statutory timeframes.[7]

Background[edit]

Prior to 1982, official information was assumed to be the property of the government, not the people. Under the Official Secrets Act 1951, unauthorised disclosure was a criminal offence.[8] But from the 1960's onwards, there was greater pressure for openness. In 1962, a Royal Commission of Inquiry into state services declared that "Government administration is the public’s business, and that the people are entitled to know more than they do of what is being done, and why."[9] The creation of the Office of the Ombudsman and changes of administrative law created a presumption that people were entitled to know the reasons for decisions made about them. Environmental campaigns such as the Save Manapouri campaign and the passage of freedom of information legislation overseas created further pressure. In 1979, the Coalition for Open Government explicitly campaigned for greater access to official information as part of its opposition to Rob Muldoon's Think Big programme.[10]

In 1978 the government established the "Committee on Official information" (also known as the "Danks Committee" after its chair) for the purpose of "considering the extent to which official information can be made readily available to the public". As part of this, the committee was to review the application of the Official Secrets Act 1951 and "advance appropriate recommendations on changes in policies and procedures which would contribute to the aim of freedom of information".[11] In 1980 it reported back, recommending the replacement of the Official Secrets Act with a new Official Information Act, based on a principle of openness.[11] In 1981 the committee released a supplementary report with recommendations about the oversight and administration of the Act and the treatment of classified information.[12] In 1982 these ideas were passed into law as the Official Information Act by the National Government. The Prime Minister at the time was Rob Muldoon, who according to Privacy Commissioner, Marie Shroff, was "a strong believer in the battler, the little man, the ordinary citizen and his or her rights".[13]

The Act[edit]

Scope[edit]

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 schedules to the Act or the Ombudsmen Act 1975). This includes almost all government agencies, including ministries, intelligence agencies, hospitals, universities, schools, crown entities, and state-owned enterprises. Some non-government agencies are also included, such as certain officers of parliament. The Act does not apply to the courts, the Parliamentary Service, quasi-judicial agencies such as the Independent Police Conduct Authority and Inspector-General of Intelligence and Security, or to local government (which is covered by the Local Government Official Information and Meetings Act 1987).[14]

The Act applies to "information", regardless of form, not just documents, and includes "not only recorded data but also knowledge of a particular fact or state of affairs held by officers in a named organisation or Department in their official capacity".[15] This technology-neutral definition has allowed the Act to cope with the significant changes in information technology since the 1980's.[10] Information held in an official capacity by employees, and information held by subcontractors, subsidiary companies, and unincorporated advisory bodies is all captured by the Act.[16]

Request process[edit]

The Act creates a regime by which people can request and receive information held by government officials and bodies. Any person in New Zealand, or any New Zealand citizen or permanent resident, can lodge a request.[17] Requests must specify the information they are seeking with "due particularity" and can be made in any form and communicated by any means.[18] They can be made online,[19] and there is no requirement for requesters to provide reasons for their request, or even their real name.[20]

Agencies subject to the OIA have a statutory duty to provide reasonable assistance to requesters,[21] and must transfer requests for information held by other bodies to the appropriate agency so that the request can be answered.[22] Agencies must make a decision on whether to release requested information as soon as reasonably practicable, with an upper limit of 20 working days after receiving the request,[5] though this time-limit can be extended for large or complex requests.[23] Organisations may charge for responding to large requests, but this is very rare. Any charge set must be reasonable.[24]

Withholding grounds[edit]

The guiding principle of the New Zealand Act is the principle of availability which states: "That information shall be made available unless there is good reason for withholding it".[4] "Good reason" is defined in the Act, and is split into two categories: "conclusive reasons", which are not subject to a public interest test, and "other reasons", which must be balanced against the public interest in release. Conclusive reasons for agencies to withhold information include:[25]

  • releasing the information would compromise the national security or international relations of New Zealand. An additional clause protects the security and international relations of dependent territories such as Tokelau and states in free association such as the Cook Islands and Niue.[26]
  • the information requested was supplied by another government in confidence
  • releasing the information would compromise the maintenance of the law, (including but not limited to the prevention, investigation, and detection of offences, and the right to a fair trial.)
  • releasing the information would endanger a person's safety
  • releasing the information would cause severe economic damage.

Other reasons to withhold information include:[27]

  • 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";

These reasons must always be balanced against the public interest in release. The Ombudsman has extensive guidance available on public interest factors which may apply to any particular request, including transparency, participation, accountability, and the administration of justice.[28] Only limited withholding grounds apply to requests for internal rules affecting decisions,[29] or to requests by individuals for the reasons for decisions about them.[30]

Finally, official information requests can also be refused for administrative reasons. These include:[31]

  • releasing the information would contravene another Act of Parliament
  • releasing the information would constitute contempt of court or Parliament
  • releasing the information would require substantial collation or research
  • the requested information is already publicly available or will soon be made publicly available.
  • the requested information does not exist or cannot be found.
  • the requested information is not held by the requested agency.
  • the request is frivolous or vexatious, or the information requested is trivial. (e.g. a request to verify that MP David Seymour is not a hologram.)[32]

Requests may be refused only in part, and information made available as redacted documents.[33] Where any part of a request is refused, agencies are required to provide reasons, 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.[6]

Oversight[edit]

Most decisions made under the Act can be appealed to the Ombudsman, including decisions to withhold or charge for information, or extend a request deadline.[34] Failure to respond to a request (known as "deemed refusal") can also be appealed. Decisions to transfer requests are not specifically mentioned, and so can only be investigated where they are made by agencies, using the Ombudsman's general jurisdiction under the Ombudsmen Act 1975. Transfer decisions by Ministers can not be appealed or investigated.[35]

If they find a complaint is justified, the Ombudsman can make formal recommendations, including to release information.[36] These recommendations are legally binding upon agencies, imposing a public duty to implement them.[37] Initially such a recommendation could be overturned by a Minister giving a directive in writing, but in 1987 the Act was amended[38] so that vetoing an Ombudsman's decision required an order in council.[39] No Ombudsman's decision has been vetoed since the amendment was passed.[40]

In addition to the complaints procedure under the OIA, the general procedures of government agencies (but not Ministers) in handling OIA requests are subject to the Ombudsman's jurisdiction under the Ombudsmen Act 1975. This has led to a series of "practice investigations", aimed at improving general OIA practice across government.[41]

Other provisions[edit]

The Act originally contained provisions for individuals to access and correct personal information about themselves. These provisions were replaced by the Privacy Act 1993, but a legacy provision still covers corporate entities.[42]

The Act requires the Ministry of Justice to produce a directory of official information, setting out the functions, structure, contact details, and information held by each agency subject to the Act.[43]

The Act provides immunity from civil and criminal proceedings for good faith decisions to release information under the Act. This includes immunity from defamation, breach of copyright, and breach of confidence, and covers the crown, public servants, and the original authors of any information released.[44]

The Act initially included the creation and functions of an Information Authority, charged with managing the implementation of the Act. These provisions expired in 1988, and the authority was dissolved.[45]

Impact[edit]

Initially dismissed as a "nine day wonder" by Prime Minister Rob Muldoon, the OIA has since been recognised as a significant constitutional measure.[46] It has significantly changed the culture of government, leading to a culture of openness under which a great deal of information is made public as a matter of routine.[47] The expectation of eventual public scrutiny is also believed to have significantly improved the quality of advice to government.[47][48]

Approximately 45,000 requests are made under the Act each year, with over 90% of them answered within statutory timeframes.[7] The Act is routinely used by political parties, journalists, lobbyists and individuals to gain a wide range of information, from government policy and statistics to information about decision-making, and "useful - and even embarrassing - information is regularly released".[49] However there has been constant friction between requesters complaining that information is disclosed reluctantly and state agencies concerned about the time and cost of meeting requests.[50] There is evidence that there are significant differences in treatment between uncontroversial and politically sensitive requests,[8] and frequent claims in the media that the law is being violated.[51][52][53] Then-Prime Minister John Key admitted explicitly delaying the release of information to suit the interests of the government,[54] while in another case the New Zealand Security Intelligence Service was found to have provided a speedy release to a blogger in order to embarrass the leader of the opposition.[55]

Proposals for reform[edit]

The OIA has been reviewed repeatedly over its lifetime, and there have been several suggestions for reform.[56]

In 1992 the New Zealand Law Commission conducted a limited review of the operation of the Act, and specifically its time limits, the processes around large and broadly defined requests, charging provisions, and the ability of the executive to veto release.[9] The review did not report back until 1997 due to the transition to MMP and recommended reducing the time limit for requests to 15 working days as well as a number of technical and administrative reforms. A few of the latter were implemented via a Statutes Amendment Bill in 2003, but core recommendations were not.

The Law Commission reviewed the Act again in 2012, and recommended expanding the scope of the Act to cover the parliamentary service and remove inconsistencies, replacing the Ombudsman with a specialist Information Commissioner, and expanding the Act to cover proactive release, as well as a number of administrative and technical changes. This was to be implemented through a rewritten Act, which would cover both central and local government.[57] The government adopted a number of minor technical reforms, but rejected any significant change.[58]

A review by Chief Ombudsman Beverley Wakem in 2015 focused on the implementation of the Act by government agencies. It found no evidence of political interference in the handling of requests but noted that nearly 80% of senior managers had never received any training in responding to OIAs and that most government agencies did not have proactive policies for the timely release of information.[59] It made numerous recommendations for improving agency OIA practices, but did not recommend any changes to the legislation itself.[60]

In 2018 the New Zealand Council for Civil Liberties made a number of recommendations for reform of the Act, including expanding coverage to Parliament, companies in which the government has majority control, and quasi-judicial agencies such as the Independent Police Complaints Authority; greater proactive release; limiting commercial and legal withholding grounds; and various measures to reduce political interference with the operation of the Act. They recommended oversight by a specialist Open Government Commission, and criminal penalties for officials who subvert the law by destroying, falsifying or hiding official information.[61]

See also[edit]

References[edit]

  1. ^ "Official Information Amendment Act 1987 No 8, Public Act – New Zealand Legislation". www.legislation.govt.nz. Retrieved 2018-12-26.
  2. ^ "Official Information Amendment Act 2003 (2003 No 90)". www.nzlii.org. Retrieved 2018-12-26.
  3. ^ "Official Information Amendment Act 2015 No 29, Public Act Contents – New Zealand Legislation". www.legislation.govt.nz. Retrieved 2018-12-26.
  4. ^ a b OIA, section 5.
  5. ^ a b OIA, section 15.
  6. ^ a b OIA, section 19.
  7. ^ a b "Latest Official Information Act statistics released". State Services Commission. 5 September 2018. Retrieved 15 October 2018.
  8. ^ a b Steven Price (November 2005). The Official Information Act 1982: A Window on Government or Curtains Drawn? (PDF) (Report). New Zealand Centre for Public Law. p. 3. Retrieved 15 October 2018.
  9. ^ a b Review of the Official Information Act 1982 (PDF) (Report). New Zealand Law Commission. October 1997. pp. 145–148. Retrieved 15 October 2018.
  10. ^ a b Nicola White (20 June 2012). "Freedom of official information: From secrets to availability". Te Ara: the Encyclopedia of New Zealand. Retrieved 16 October 2018.
  11. ^ a b Towards Open Government: General Report (PDF) (Report). Office of the Ombudsman. December 1980. Retrieved 16 October 2018.
  12. ^ Towards Open Government: Supplementary Report (PDF) (Report). Office of the Ombudsman. July 1981. Retrieved 16 October 2018.
  13. ^ "The Official Information Act and Privacy" (PDF). June 2005.
  14. ^ "The OIA for Ministers and agencies: A guide to processing official information requests" (PDF). Office of the Ombudsman. June 2016. p. 5. Retrieved 17 October 2018.
  15. ^ Elwood, Brian; Satyanand, Anand (September 1998). "Application of Official Information Legislation to Non-documentary Information" (PDF). Ombudsmen Quarterly Review. Vol. 4 no. 3. Office of the Ombudsman. Retrieved 17 October 2018.
  16. ^ OIA, section 2.
  17. ^ OIA, section 12.
  18. ^ "Making official information requests: A guide for requesters" (PDF). Office of the Ombudsman. June 2016. Retrieved 16 October 2018.
  19. ^ "Requests made online: A guide to requests made through fyi.org.nz and social media" (PDF). Office of the Ombudsmen. April 2016. Retrieved 16 October 2018.
  20. ^ "Ombudsman may launch investigation into OIA saga". RNZ. 5 October 2018. Retrieved 16 October 2018.
  21. ^ OIA, section 13.
  22. ^ OIA, section 14.
  23. ^ OIA, section 15A.
  24. ^ "Charging: A guide to charging for official information under the OIA and LGOIMA" (PDF). Office of the Ombudsman. June 2017. Retrieved 16 October 2018.
  25. ^ OIA, section 6.
  26. ^ OIA, section 7.
  27. ^ OIA, section 9.
  28. ^ "Public interest: A guide to the public interest test in section 9(1) of the OIA and section 7(1) of the LGOIMA" (PDF). Office of the Ombudsman. June 2017. Retrieved 16 October 2018.
  29. ^ OIA, section 22.
  30. ^ OIA, section 23.
  31. ^ OIA, section 18.
  32. ^ "ACT leader: not a hologram". Stuff.co.nz. 10 March 2015. Retrieved 10 February 2016.
  33. ^ OIA, section 17.
  34. ^ OIA, section 28.
  35. ^ "Role of an Ombudsman on Review" (PDF). Office of the Ombudsman. Retrieved 16 October 2018.
  36. ^ OIA, section 30.
  37. ^ OIA, section 32.
  38. ^ Official Information Amendment Act 1987, section 18.
  39. ^ OIA, section 32(2).
  40. ^ Law Commission (2012), p. 250.
  41. ^ "Ombudsman seeking better OIA practices". Office of the Ombudsman. 6 April 2018. Retrieved 16 October 2018.
  42. ^ OIA, part 4.
  43. ^ OIA, section 20.
  44. ^ OIA, section 48.
  45. ^ OIA, part 6 and section 53.
  46. ^ "30 years of the OIA in NZ". Office of the Ombudsman. 1 July 2013. Retrieved 16 October 2018.
  47. ^ a b Nicola White (20 June 2012). "Freedom of official information - What has the Official Information Act achieved?". Te Ara - the Encyclopedia of New Zealand. Retrieved 16 October 2018.
  48. ^ Law Commission (1997), para E18.
  49. ^ Price (2005), pp 27-29.
  50. ^ Law Commission (1997), para E15.
  51. ^ "Listen to audio interview: Ex-govt lawyer's 'bury bad news' claim". New Zealand Herald. 19 September 2014. Retrieved 16 October 2018.
  52. ^ "Media body takes aim at Govt OIA delay tactics". RNZ. 17 December 2014. Retrieved 17 October 2018.
  53. ^ "David Fisher: OIA a bizarre arms race". New Zealand Herald. 23 October 2014. Retrieved 17 October 2018.
  54. ^ "PM admits Govt uses delaying tactics". RNZ. 16 October 2014. Retrieved 16 October 2018.
  55. ^ "Report into the release of information by the New Zealand Security Intelligence Service in July and August 2011" (PDF). Office of the Inspector-General of Intelligence and Security. 25 November 2014. Retrieved 17 October 2018.
  56. ^ Palmer, Geoffrey (2007). "A hard look at the New Zealand experience with the Official Information Act after 25 years" (PDF). www.lawcom.govt.nz. Retrieved 2018-12-26.
  57. ^ The Public's Right to Know: Review of the Official Information Legislation (PDF) (Report). New Zealand Law Commission. June 2012. Retrieved 15 October 2018.
  58. ^ "Government Response to Law Commission Report on The Public's Right to Know: Review of the Official Information Legislation" (PDF). NZ Government. 4 February 2013. Retrieved 16 October 2018.
  59. ^ "Official Information Act review finds no evidence of political interference". New Zealand Herald. 8 December 2015. Retrieved 17 October 2018.
  60. ^ Not a game of hide and seek: Report on an investigation into the practices adopted by central government agencies for the purpose of compliance with the Official Information Act 1982 (PDF) (Report). Office of the Ombudsman. December 2015. Retrieved 16 October 2018.
  61. ^ "A Better Official Information Act". New Zealand Council for Civil Liberties. 29 July 2018. Retrieved 16 October 2018.

Further reading[edit]

  • Access to Information (Graham Taylor and Paul Roth, LexisNexis NZ 2011)
  • Free and Frank: Making the Official Information Act 1982 work better (Nicola White, Institute of Policy Studies, 2007)

External links[edit]