Tēnā koutou,

On April 20 2020, NZ Police released its “Privacy and official information - Disclosure under the Official Information Act 1982 (OIA)” Police Manual chapter as of 30 January 2020 (ref IR-01-19-25383) [1].

In this document, a section titled “Minister’s Office consultation” states that some requests may need to be “sent to the Minister’s Office for consultation before it is sent to the requester” and that the person handling the request should “Allow five working days for the consultation”.

Today, an article published on stuff.co.nz [2] regarding a a case note published by Chief Ombudsman Peter Boshier in May 2022 [3] following a complaint made to his office under the OIA regarding this part of Police’s disclosure under the OIA policy said that:

“[NZ Police] allows 72 hours to alert its minister to any upcoming release of documents under the Official Information Act.”

“[Chief Ombudsman Peter] Boshier said police did not demonstrate that a 72-hour notification period was necessary, and three to five days “is likely to be unreasonable,” he added.”

“Police told the Ombudsman it has amended its practice.”

The case note also mentioned that:

“The reason for the delay was that Police had the practice of providing the Police Minister with a three-working day advance notice of decisions on certain requests.”

This has led me to believe that this policy has been updated at least twice since January 2020. First, to reduce the timeframe for consultation with the minister from five working days to three working days, and a second time following this complaint. I would like to request information about how this policy has changed since it was last released under the OIA.

Please release the following information regarding the “Privacy and official information - Disclosure under the Official Information Act 1982 (OIA)” chapter of the Police Manual:

1. For the version that was active on 30 January 2020:
1a. The date on which that version came into effect.
1b. The date on which that version ended.

2. For each version that came into effect after 30 January 2020:
2a. A copy of that version.
2b. The date on which the version came into effect.

3. The next planned review date for this document.

4. The licence under which this information is released.

If possible, I would prefer that the information be released under the Creative Commons Attribute 4.0 licence (CC BY 4.0) [4], which is recommended under the NZGOAL framework [5]. Cabinet has invited NZ Police to take NZGOAL into account when releasing copyright material and non-copyright material to the public for re-use [6].

Please provide this information in an accessible, searchable format without a watermark.

If any information needs to be withheld from the document, please ensure this is not done in a way that makes the surrounding content (such as other content on the same page) inaccessible.

Ngā mihi,
Mark Hanna

[1] https://fyi.org.nz/request/11064-oia-aut...
[2] https://www.stuff.co.nz/national/1291822...
[3] https://www.ombudsman.parliament.nz/site...
[4] https://creativecommons.org/licenses/by/...
[5] https://www.data.govt.nz/toolkit/policie...
[6] https://www.data.govt.nz/assets/Uploads/...

Kia ora Penni,

I’d prefer to communicate via email if that’s alright. Which parts of my request did you need to clarify?

I understand part 4 of my request, asking about the licence the information is released under, is perhaps not common. In case this is the part you wanted to clarify, here is a bit more explanation behind my intent for this part of my request.

When information released under the OIA is not released under an explicit licence, it is typically protected by default under the Copyright Act 1994. These rules technically prohibit certain actions, such as communicating the protected work to the public (s16(1)(f)). However, when it comes to information released under the OIA without specific licence restrictions I understand there is also essentially a convention that the exclusivity of these rights will not be enforced.

I intend to make any information released in response to this request available for others, such as academics and journalists, to reuse. For most intents and purposes, this unspoken agreement that copyright restrictions will not be enforced may be good enough, however I would prefer to be able to share any information released to me under a particular licence so everyone can understand exactly under what conditions it may be used. I think the CC BY 4.0 licence recommended by NZGOAL is a good fit for this as it requires attribution to NZ Police, a link to the licence, and a clear indication if any changes have been made (e.g. if annotations have been added, or the information has been converted into a different format).

I hope that’s useful clarification, but let me know if there are other parts of my request that you need clarified, or if this was unclear.

Ngā mihi,
Mark Hanna

Tēnā koe,

Thank you for your response following my complaint to the Ombudsman.

I understand that the reason you have provided explains, in part, the decision to release the information I have requested under a CC BY-NC-ND 4.0 licence rather than the CC BY 4.0 licence that is the primary one (but not the only one) recommended under NZGOAL:

“Police considers its decision is consistent with NZGOAL and its desire to enable easy access to Police policies for defence counsel and researchers, for example, as well as members of the public, while endeavouring to contain the circulation of potentially outdated or misleading versions.”

“It is in the public interest that, where published, there should be a single, authoritative, up-to-date, and non-adapted version of these specific data sources, and the Police website is the proper place to find Police Manual chapters and other policies.”

“Police took the view that it is contrary to the public interest to license copyright works to enable their republication in a modified form.”

Under part 24(e), NZGOAL 2.0 [1] does allow for the use of a BY Creative Commons licence more restrictive than the base CC BY 4.0 licence in several cases, including that it would:

“be contrary to the public interest, where it exists, in having a single, authoritative and non-adapted version of a specific data source”

If this risk of these documents being published with noted modifications is the only reason for not using the CC BY 4.0 licence, however, then I’m not sure why NZ Police did not choose to use the CC BY-ND 4.0 [2] licence. This licence does not permit the licensed work to be republished with noted modifications, but it does allow it to be used commercially. It is recommended in part 25 of NZGOAL 2.0 alongside the CC BY-NC-ND 4.0 licence NZ Police has used.

Regardless, I do appreciate and am grateful that NZ Police has made the choice to make the Police Manual chapters published on the police.govt.nz website available under a CC BY-NC-ND 4.0 licence.

However, NZ Police’s choice of licence for the purpose of proactively publishing these documents on their website is not the subject of my complaint to the Ombudsman, and NZ Police is of course able to use whichever licence they decide is appropriate for that purpose. Rather, my complaint regards my request that NZ Police release documents to me under the OIA using a CC BY 4.0 licence. I have asked for this with the understanding that this qualifies as stating my preference as to the way in which information should be made available, per section 16(2) of the OIA [3]:

(2) Subject to section 17, the department or interdepartmental venture or Minister of the Crown or organisation shall make the information available in the way preferred by the person requesting it unless to do so would—
(a) impair efficient administration; or
(b) be contrary to any legal duty of the department or venture or Minister of the Crown or organisation in respect of the document; or
(c) prejudice the interests protected by section 6 or section 7 or section 9 and (in the case of the interests protected by section 9) there is no countervailing public interest.

Section 16(3) of the OIA [3] obliges an agency to provide “the reason for not providing the information in that [preferred] way” in cases such as this.

The reason communicated to me in NZ Police’s most recent response was:

“Police took the view that it is contrary to the public interest to license copyright works to enable their republication in a modified form.”

However, this is not one of the reasons permitted for such a decision under section 16(2) of the OIA. Of course, the public interest can be relevant to such a decision, but only in that any countervailing public interest must be considered if the reason for not providing information in a requester’s preferred way would prejudice an interest protected by section 9 of the OIA.

I understand that NZ Police may hold the view that my request that information be released under a particular licence does not qualify as my stating a preference for a way in which information should be provided as per section 16(2). I note that NZ Police has said in its most recent response that:

“Police awaits the Ombudsman’s view on the application of section 16 of the OIA.”

I realise that this is not a typical way in which section 16 of the OIA is invoked. If NZ Police is correct that section 16 of the OIA is not applicable in this case, then I would agree that the decision to release information under a different CC licence is quite reasonable.

As it seems NZ Police and I disagree, I will write back to the Ombudsman asking him to form an opinion as to the applicability of section 16 of the OIA when it comes to requests such as this, where I have asked that information be provided under a particular licence.

In the meantime, if NZ Police would be able to provide me with a reason that is permitted under section 16(2) of the OIA as to why the information could not be provided under the CC BY 4.0 licence I requested, I would appreciate that information.

Ngā mihi,
Mark Hanna

[1] https://www.data.govt.nz/assets/Uploads/...
[2] https://creativecommons.org/licenses/by-...
[3] https://www.legislation.govt.nz/act/publ...