Dear Statistics New Zealand,

This is a request for information under the Official Information Act.

On 12 April 2022, the department refused the Council’s request of 8 February 2022 (correspondence for which can be found here: https://fyi.org.nz/request/18491-stats-n...).

Please provide the Council with the following information:

1. A list of all email communications to and from any Statistics New Zealand employee, secondee or contractor and any Customs New Zealand employee, secondee or contractor for the period 1 May 2018 – 30 April 2022. This list should include the sent or received date, the email account it was sent from or received by, the subject line and the filenames of any documents attached to the email. Under section 16 of the OIA, our preferred means of receiving this information is in tabular form in spreadsheet or CSV format.

2. The contents of all emails identified by Statistics NZ in the list generated when responding to item 1 above that relate to the following topics:
a. Data sharing
b. Data ethics
c. Data security
d. Transparency
e. Data governance
f. Data management
g. The writing or circulation of advice, a paper, memo or guidance on ‘security vs transparency’

3. The attachments to any of the emails meeting the criteria identified in items 1 and 2 above.

4. All email communications received by any Statistics NZ employee, secondee or contractor from an employee, secondee or contractor of the NZ Security Intelligence Service in the period 1 April 2019 to 30 April 2022 relating to any of the terms identified in item 2 above.

5. All notes or other written material held by Statistics NZ of meetings any of its employees, secondees or contractors have had with any employees, secondees or contractors of the NZ Security Intelligence Service for the period 1 April 2019 to 30 April 2022 relating to any of the terms identified in item 2 above.

The Council looks forward to receiving the requested information as soon as reasonably practicable and no later than 20 working days after receipt of this request. Should the department need to discuss or clarify any aspect of the request, please contact the Council by replying to the email address from which this request was received.

Under section 16 of the OIA, our preference for receiving this information is by email response to the address from which the department received this request. Also under section 16 of the OIA, our preference is to receive this information as searchable documents not image-only PDFs. Further under section 16, our preference is for the information not to be watermarked with ‘released under the OIA’ or similar text. The only permitted reasons for not complying with the Council’s section 16 preferences are set out in section 16(2) of the Act.

Under section 19(a)(ii) of the OIA, if the department withholds any information under sections 6 or 9 in its response to this request, we further request that the department provide the Council with the grounds underpinning the reasons for withholding that it cites.

Nāku noa, nā

Andrew Ecclestone
Deputy Chair
New Zealand Council for Civil Liberties

Kia ora Ruth,

Thank you for your response.

Unfortunately Statistics NZ's understanding of when the OIA request was received is deficient.

Please refer to the Ombudsman's guide to requests made online:
https://www.ombudsman.parliament.nz/reso...

On pages 5-6 the following guidance from the Ombudsman is relevant:

"Where an agency has designated a particular information system (like an email address, Twitter account, or Facebook page) for the purpose of receiving electronic communications, those communications will be taken to be received at the time they enter the information system, not when they come to the agency’s attention.[6]

So whenever the email, tweet or post enters the system, that’s when it’s received. Use that date as the day of receipt for the purpose of calculating the maximum 20 working days for responding to an official information request. This is so regardless of whether the email, tweet or post was received outside business hours. The definition of ‘working day’ in the OIA and LGOIMA makes no reference to business hours.[7] Use the online calculator on our homepage to help calculate maximum response times.

[6] See s 214 of the Contract and Commercial Law Act 2017.
[7] See s 2 OIA and LGOIMA."

Consequently, Statistics NZ received the Council's request on 2 May 2022 and, according to the Ombudsman's online calculator, the 20th working day is Monday 30 May 2022.

Ngā mihi,

Andrew Ecclestone
Deputy Chair
New Zealand Council for Civil Liberties

Kia ora Kelsey,

The Council is working on a draft reply to your email regarding refinement or clarification of its request. We will respond substantively soon.

Yours sincerely,

New Zealand Council for Civil Liberties

Dear Statistics New Zealand,

Thank you for the email of 6 May 2022 from Ms Schaumann.

It appears that the department is considering refusal of the Council’s request under section 18(f) of the OIA, on the grounds of substantial collation or research in relation to part 1 of our request (since Ms Schaumann refers to both communication with Customs NZ and the number of emails which may be within the scope of the request).

The Council has some difficulty in accepting that this course of action is available to the department, for two reasons.

First, from emails Council members have received from Stats NZ, it appears that the department uses Outlook as its email client and Exchange as its mail server software. The Council would therefore be surprised if the department is not using MS365.

If this is the case Stats NZ will have access to Microsoft’s e-Discovery tools (https://docs.microsoft.com/en-us/microso...).

The information provided by Microsoft about the e-Discovery functionality suggests that if Stats NZ does have access to these tools, it will be a straightforward task to compile the table of information concerning emails between Stats NZ and Customs NZ sought in part 1 of our request. It also suggests that it would be straightforward for the department to search within that set of emails for the search terms provided in part 2 of our request, and for the attachments requested in part 3.

As the Ombudsman notes on page 8 his guide to section 18(f) of the OIA (https://www.ombudsman.parliament.nz/reso...),

“Agencies are required to create and maintain public records in an accessible form so they can be used for subsequent reference. Failure to comply with this requirement can make it more difficult to find and bring together information requested under the OIA or LGOIMA. Where the difficulty involved in meeting an official information request arises because of an agency’s own administrative failings, it may not be reasonable to refuse it on the grounds of substantial collation or research.”

The guide also states (p 27) that:

“The question under section 18(f) is whether an agency *can* make the information available without substantial collation or research, not whether it *should* be able to do so...
However, if the Ombudsman is sufficiently concerned that poor record-keeping practices have hindered an agency’s ability to meet an OIA request, they can notify the Chief Archivist under section 28(6) of the OIA (section 27(6) of the LGOIMA). The Chief Archivist can then take that information into account in exercising their functions under the Public Records Act 2005.” [emphasis in the original]

Second, the department refers to the work required to “review all the search results”. The Ombudsman’s guide to section 18(f) of the OIA explains that,

“Collation or research can also include reading and reviewing information, and consulting on the request, but *only* to the extent that these tasks are necessary in order to find what has been requested and bring it together.” [emphasis in the original]

The information requested in parts 1-4 should be possible to locate and collate using the tools described above. We are unclear what manual review of the search results is necessary, until the department proceeds to the subsequent stage of processing the request, considering any possible grounds to depart from the principle of availability. The Ombudsman’s guide is clear that time for reading material at that stage of the process cannot be included in any calculation of whether ‘substantial collation or research’ is needed:

“Time required to make a decision on withholding or release of information that has already been found and brought together does not go toward establishing ‘substantial collation or research’. Where the following tasks relate to decision making on withholding or release, they should not be taken into account:
• reading, review and assessment; and
• consultation (including consultation with legal advisors, or affected third parties); and
• redacting information that an agency has decided there is good reason to withhold.
As the High Court noted in Kelsey v the Minister of Trade, making a decision on an official information request requires each piece of information to be assessed against the criteria for withholding, and while that may involve substantial effort:

‘That ... is the price Parliament contemplated when it passed the Act and is a challenge regularly encountered and addressed by public servants who are charged with ensuring requests for official information are dealt with in accordance with the Act’."

If it is not possible to locate and collate the information within the scope of the request using the tools mentioned above, we would appreciate a detailed explanation from the department as to why this is the case. The Council would then be willing to consider amending of the scope of the request, or separating provision of the information so that it could be provided in stages (page 19 of the Ombudsman’s guide refers).

Finally, the Ombudsman’s guide (p 16) indicates that agencies should consider carrying out “a sample exercise in order to be able to generate a reasonable estimate of the amount of work involved.” Please can you tell us whether the department has carried out a sample exercise, and if so, explain it to us (or provide the written results of it, whichever is the easier). We note that page 19 of the Ombudsman’s guide states that,

“Giving *specific details* about the volume of information involved, the estimated time required to make it available, and the impact on the agency’s other operations will help the requester to understand the magnitude of the task, and may make them more willing to accept or suggest practical solutions to address the agency’s difficulty in meeting the request.” [emphasis added]

Kind regards,

Andrew Ecclestone
Deputy Chair
New Zealand Council for Civil Liberties