Submission by the Office of the
Privacy Commissioner on the Law
Commission’s Review of the Official
Information Acts
7 February 2011
Table of Contents
Introduction
Page
Chapter 2
Scope of the Acts
4
Chapter 3
Decision-making
5
Chapter 4
Protecting good government
8
Chapter 5
Protecting commercial interests
9
Chapter 6
Protecting privacy
11
Chapter 7
Other withholding grounds
12
Chapter 8
The public interest test
14
Chapter 9
Requests – some problems
15
Chapter 10
Processing requests
21
Chapter 11
Complaints and remedies
27
Chapter 12
Proactive disclosure
33
Chapter 13
Oversight and other functions
35
Chapter 14
LGOIMA
37
Chapter 15
Other issues
38
2
Introduction
The Privacy Commissioner welcomes the opportunity to provide input to the Law
Commission’s Review of the Official Information Act and Local Government Official
Information and Meetings Act.
The official information statutes are important mechanisms for holding governments and
public bodies accountable. The entitlements that they confer to seek access to
government-held information are important to our democratic society. The OIA has been
highly successful in moving New Zealand governments from their ‘deeply engrained’
habit of secrecy (to use Sir Guy Powles’ phrase) to today’s more open practices – a
transition for which citizens can be grateful.
The Act has endured for 25 years with only modest change. It is timely in today’s more
information rich environment to have this thorough review. The OIA must work wel if the
various and important public interests reflected in it are to be properly reconciled and
given effect to.
The points of interaction between this review and the Privacy Act are greater than might
at first be apparent. The protection of requested information where privacy issues are
raised if citizens’ privacy is to be respected is the obvious point of interaction but by no
means the only one. In addition:
many of the statutory provisions in the Privacy Act 1993, particularly those
concerning requests for access to information and the complaints machinery, are
modeled upon the OIA and thus decisions to change, or not to change the OIA, may
raise mirror issues in the Privacy Act;
there is a direct connection between some of the law and processes in the OIA and
Privacy Act such as in relation to consultation between the respective review
authorities and agency liability for disclosure of personal information.
The submission offers a number of observations and suggestions based upon OPC’s
experience in working with the OIA and operating a similar information access law. In
addition, suggestions are made to strengthen the Act’s processes to fairly and more
efficiently protect the interests of third parties, particularly where their privacy is at risk.
OPC in this submission refers to either the Privacy Commissioner or the Office of the
Privacy Commissioner as the context warrants.
3
CHAPTER 2: SCOPE OF THE ACTS
Q1 Do you agree that the schedules to each Act (OIA and LGOIMA) should list
every agency that they cover?
No comment.
Q2 Do you agree that the schedules to the OIA and LGOIMA should be examined
to eliminate anomalies and ensure that al relevant bodies are included?
No comment.
Q3 Do you agree that SOEs and other crown entity companies should remain
within the scope of the OIA?
OPC supports SOEs continuing to be subject to the OIA. OPC agrees with conclusion of
the earlier 1989 parliamentary committee that removing the jurisdiction of the OIA would
result in a significant loss in public confidence in the government’s oversight of the
SOEs.
Q4 Do you agree that council control ed organisations should remain within the
scope of the LGOIMA?
OPC agrees that council control ed organisations should remain within the scope of
LGOIMA to ensure public accountability.
Q5 Do you agree that the Parliamentary Counsel Office should be brought within
the scope of the OIA?
No comment.
Q6 Do you agree that the OIA should specify what information relating to the
operation of the Courts is covered by the Act?
OPC agrees that the courts should be subject to some form of information access law as
an important component of accountability and transparency. The OIA appears
anomalous in applying to tribunals in their administrative capacity but not to courts. By
contrast, the access rights in the Privacy Act apply to any tribunal or court except ‘in
relation to its judicial functions’. Making a distinction between judicial and other
functions of courts has proved possible under the Privacy Act.
Q7 Should any further categories of information be expressly excluded from the
OIA and the LGOIMA?
OPC does not general y advocate expressly excluding further categories of information
from the OIA although that does remain an option for Parliament to fol ow in particular
cases in other legislation (as it did, for example, in relation to cockpit voice recordings in
the Transport Accident Investigation Amendment Act 1999). In particular, OPC does not
support the exclusion of ‘informal information’ or ‘third party information’ for although
difficulties can arise in both circumstances, the OIA adequately caters for those
difficulties. Exclusion of those two classes of information would create significant
anomalies that could undermine public accountability and transparency.
4
CHAPTER 3: DECISION-MAKING
Q8 Do you agree that the OIA and the LGOIMA should continue to be based on a
case-by-case model?
No comment.
Q9 Do you agree that more clarity and certainty about the official information
withholding grounds can be gained through enhanced guidance rather than
through prescriptive rules, redrafting the grounds or prescribing what information
should be released in regulations?
No comment.
Q10 Do you agree there should be a compilation, analysis of, and commentary on,
the casenotes of the Ombudsmen?
Inspired by the Ombudsmen’s practice of releasing case notes, OPC began releasing its
own case notes in 1996. OPC had a number of objectives in releasing case notes
including to provide some continuity with the personal access review regime operated by
the Ombudsmen from 1982 to 1993. Thus OPC has its own 14 year experience with
releasing case notes to draw upon in offering comments upon this question.
OPC agrees with a considerable amount of the discussion in this chapter when it
highlights the usefulness of case notes and the desirability of making suitable
arrangements so that they can most easily and useful y be accessed. However, we are
cautious about the enthusiasm for establishing these as a ‘system of precedent’, a
matter we return to at Q11.
OPC accepts that the approach that might be useful y taking for Privacy Act case notes
might not be appropriate for OIA purposes but offers these observations in case they
may be useful.
OPC has found case notes to be a valuable means for disseminating views that the
Commissioner has reached on interpretation of the provisions in the Privacy Act in real
cases. It has also been useful for il ustrating the operation of the machinery of the Act,
such as early resolution, settlement of cases after an opinion has been rendered and
dismissal of a matter for want of jurisdiction. People like to hear of real cases rather
than abstract formulations or hypothetical scenarios.
Case notes are usual y simplified versions of opinions rendered by the Privacy
Commissioner. Some of the facts, or some of the law, is usual y omitted or simplified for
the recounting of the case. Certain details have to be generalised lest least the
complainant’s identity be revealed.
Some years ago, OPC grappled with some of the issues discussed in the chapter in
relation to accessibility and comprehensiveness of the case note col ection.
Arrangements for availability of Human Rights Review Tribunal decisions under the
Privacy Act were also a consideration. OPC concluded that simply making case notes
available on the Privacy Commissioner’s website was not a final optimum solution but
instead there should be a on-line repository of case notes, and privacy cases, which
5
could be accessed central y and searched across different databases. This is now a
reality and New Zealand cases are available together with overseas privacy case notes
and judgments in the International Privacy Law Library hosted by the World Legal
Information Institute. Publication online became the norm with published and indexed
compilations ceasing to be a primary means of dissemination
A system of citation was essential for such an initiative. Accordingly, OPC facilitated
adoption of certain citation and dissemination standards for privacy case reports first by
the Asia Pacific Privacy Authorities Forum and later by the International Conference of
Data Protection and Privacy Commissioners. The centralised on-line database is hosted
by the World Legal Information Institute who are much more expert in electronic
dissemination of legal information than are privacy authorities.
Accordingly, if any of this experience is able to be translated to the OIA environment, it
might be worth considering:
divorcing the producer of the case reports, the Ombudsmen, from the entity tasked
with effective dissemination;
considering whether a dedicated national database is the place to start and stop or
whether it is better to get compatible centralised databases with the various bodies
operating similar FOI laws – a good starting point might be to upload the existing and
future Ombudsmen case notes to NZLII.
OPC notes that the issues paper places stress upon analysis of, and commentary upon,
case notes. OPC agrees with the importance of that task. OPC further notes that in
other situations this is not a role vested with the authors of judgments or opinions but
with dispassionate experts in academia or legal reporting. That may have more promise
than simply expecting the authority that has rendered the opinion to provide further
analysis of, and commentary upon, case notes it has released.
Q11 Do you agree there should be greater access to, and reliance on, the
casenotes as precedents?
As already mentioned, OPC is a keen supporter of case notes both from its own
experience. We have found this a useful way of disseminating information in the
absence of a system of release of ful opinions, determinations or judgments. However,
a case note system differs from a body of jurisprudence forming the basis of a system of
precedent as normal y understood in the common law system. For instance:
in the Ombudsmen’s case note system (and OPC’s), case notes are only released
on a selection of cases whereas in a system of judgments, al cases are available
albeit that some remain unreported while other find their way into official series;
the cases are selected for reporting by the Ombudsmen themselves (or OPC with
respect to our case notes) and not by any learned or independent council of law
reporting and are therefore subject to certain selection biases;
the Ombudsmen’s (and OPC’s) case notes simply reflect ‘opinions’ and not
determinations which obviously differs from judgments;
the Ombudsmen’s system is not subject to any meaningful appeal process and the
cases of judicial review are too infrequent to provide much judicial input or guidance
in contrast to a normal system of court reporting or precedent (or in OPC’s case with
the involvement of the Human Rights Review Tribunal).
6
The possibility of the Ombudsmen issuing determinations rather than merely opinions is
signaled in the discussion and we return that below (see Q75). In the event of that
happening the case for or against a precedent system may differ significantly from the
current position described and commented upon here. In such a system it might be
expected that al determinations be made public as is the case in jurisdictions such
Ontario and some Australian states.
Re-characterising the case note arrangements as ‘a system of precedent’ runs the risk
of losing some of the features of the New Zealand system that the discussion in the
issues paper professes to value, namely, the case by case consideration on the merits.
Applying precedent would seem to imply that the Ombudsmen would be bound by their
previous decisions.
Such a system would also run the risk, in the absence of any ability for appeal or
meaningful review, to become more inflexible and unaccountable. In the absence of a
higher court having meaningful supervision, the case notes might come to represent the
final word on any question of interpretation but without the merit that the common law
system usual y offers in terms of testing and re-testing legal argument though a hearing,
reasoned judgment and appeal process.
Q12 Do you agree there should be a reformulation of the guidelines with greater
use of case examples?
No comment.
Q13 Do you agree there should be a dedicated and accessible official information
website?
No comment.
7
CHAPTER 4: PROTECTING GOOD GOVERNMENT
Q14 Do you agree that the “good government” withholding grounds should be
redrafted?
No comment.
Q15 What are your views on the proposed reformulated provisions relating to the
“good government” grounds?
No comment.
8
CHAPTER 5: PROTECTING COMMERCIAL INTERESTS
Q16 Do you think the commercial withholding ground should continue to be
confined to situations where the purpose is to make a profit?
No comment.
Q17 If you favour a broader interpretation, should there be a statutory amendment
to clarify when the commercial withholding ground applies?
No comment.
Q18 Do you think the trade secrets and confidentiality withholding grounds
should be amended for clarification?
The tenor of the discussion is that the substance and drafting of the reasons for refusing
requests are largely satisfactory and that tinkering with the language is undesirable
given users familiarity with the Act. OPC accepts these sentiments up to a point. It
accepts that overal the reasons for withholding have worked wel and are, for the most
part, reasonably clear (although as noted in the paper there is scope for restructuring to
make the Act easier to use – see Q106). However, OPC suggests that where the
existing reasons for refusal can be improved, made clearer and easier to use through
amendment to wording that this should be done. The ‘trade secret’ reason for refusal
may be such an example.
OPC has recommended that a simple definition of ‘trade secret’ be inserted in to the
counterpart provision in the Privacy Act. Several years ago a suitable definition of ‘trade
secrets’ was inserted into s.230(2) of the Crimes Act which states:
‘…
trade secret means any information that:
(a) is, or has the potential to be, used industrial y or commercial y; and
(b) is not general y available in industrial or commercial use; and
(c) has economic value or potential economic value to the possessor of the
information; and
(d) is the subject of al reasonable efforts to preserve its secrecy.’
The provision in the Crimes Act has the merit of being quite plainly drafted. It is true that
the constituent elements of that definition can also be discerned from the Ombudsmen’s
guidance on the interpretation of the OIA. However, OPC takes the view that if it is
possible in a simple and clear way to outline the elements of the reasons for withholding
on the face of the statute, in the drafting of those reasons or in defined terms, then this
should be done. At the moment, a user of the statute has to look to external sources to
understand what is meant by ‘trade secret’. It is not possible to apply that part of the Act
without having that additional special knowledge.
Q19 Do you agree that the official information legislation should continue to apply
to information in which intel ectual property is held by a third party?
No comment.
9
Q20 Do you have any comment on the application of the OIA to research work,
particularly that commissioned by third parties?
No comment.
Q21 Do you think the public interest factors relevant to disclosure of commercial
information should be included in guidelines or in the legislation?
No comment.
Q22 Do you experience any other problems with the commercial withholding
grounds?
No comment.
10
CHAPTER 6: PROTECTING PRIVACY
Q23 Which option do you support for improving the privacy withholding ground:
Option 1 – guidance only, or;
Option 2 – an “unreasonable disclosure of information” amendment while
retaining the public interest balancing test, or;
Option 3 – an amendment to align with principle 11 of the Privacy Act 1993 while
retaining the public interest test, or;
Option 4 – any other solutions?
OPC considers that option 2 offers some promise and may be worth further exploring.
Option 3, although conceptual y sound and offering a clearer way of reconciling the two
information statutes, may be an unnecessarily radical change from what has gone
before.
OPC considers that the current formulation of the reasons for withholding, whether
reformed by option 2 or not, can work satisfactorily but considers that some supporting
changes wil help make it work optimal y. Additional guidance, as suggested in option 1,
may be useful but is insufficient alone. Training of officials is an essential although
never-ending task to back this up. Changes to processes to give the affected individuals,
to whom the information relates, a voice and place in the process are also important
(see Q56).
Q24 Do you think there should be amendments to the Acts in relation to the
privacy interests of:
(a) deceased persons?
(b) children?
OPC is interested to hear of the responses received to consultation on these two
questions as the issues are also relevant in the Privacy Act context.
Q25 Do you have any views on public sector agencies using the OIA to gather
personal information about individuals?
OPC does not support the OIA being used as a ‘back door’ for intra-government
information disclosure of personal information.
11
CHAPTER 7: OTHER WITHHOLDING GROUNDS
Q26 Do you agree that no withholding grounds should be moved between the
conclusive and non-conclusive withholding provisions in either the OIA or
LGOIMA?
No comment.
Q27 Do you think there should be new withholding grounds to cover:
(a) harassment;
(b) the protection of cultural values;
(c) anything else?
With respect to (a), OPC considers that there may be merit in harassment forming a
stand alone reason for refusal. While harassment is incorporated into section 9(2)(g),
chapter 4 explained that the various reasons touching upon protecting good government
are not always easy to apply. While public officials may be satisfactorily protected from
harassment by section 9(2)(g), there remains the risk of harassment to individuals
identified in government held information that is released. It is true that the risk of
harassment can be indirectly considered through the privacy provisions, but OPC
wonders whether a stand alone ground would be clearer and more effective.
OPC has no comment on paragraphs (b) and (c).
Q28 Do you agree that the “wil soon be publicly available” ground should be
amended as proposed?
OPC supports the redrafting which neatly seems to address the existing provisions’
shortcomings as recounted in the issues paper.
Q29 Do you agree that there should be a new non-conclusive withholding ground
for information supplied in the course of an investigation?
OPC accepts that it may be useful for a new reason for refusal based on information
supplied in the course of an investigation to be introduced. However, OPC notes that it
currently interprets the equivalent ‘maintenance of the law’ reason for refusal in the
Privacy Act in a more liberal way than the paper suggests is the practice of the
Ombudsmen under the OIA. OPC has, for example, in some recent complaint
investigations al owed the Health and Disability Commissioner to withhold information
from requesters under section 27(1)(c) of the Privacy Act so long as that
Commissioner’s investigation is active.
Under the Privacy Act, if requesters do not accept the Privacy Commissioner’s opinion
supporting the refusal they can take the matter to the Human Rights Review Tribunal to
seek access to the information.
Q30 Do you have any comments on, or suggestions about, the “maintenance of
law” conclusive withholding ground?
The Law Commission recognises there are counterpart issues in the Privacy Act and
OPC notes with approval that it wil not make a final decision on the ‘maintenance of the
12
law’ exception until it takes similar decisions in relation to the Privacy Act review. Under
the Privacy Act the ‘maintenance of the law’ formulation is used not only as a reason to
refuse an access request but also as the basis for exceptions to four of the information
privacy principles.
13
CHAPTER 8: THE PUBLIC INTEREST TEST
Q31 Do you agree that the Acts should not include a codified list of public interest
factors? If you disagree, what public interest factors do you suggest should be
included?
No comment.
Q32 Can you suggest any statutory amendment which would clarify what “public
interest” means and how it should be applied?
No comment.
Q33 Do you think the public interest test should be contained in a distinct and
separate provision?
No comment.
Q34 Do you think the Acts should include a requirement for agencies to confirm
they have considered the public interest when withholding information and also
indicate what public interest grounds they considered?
No comment.
14
CHAPTER 9: REQUESTS – SOME PROBLEMS
Q35 Do you agree that the phrase “due particularity” should be redrafted in more
detail to make it clearer?
No comment.
Q36 Do you agree that agencies should be required to consult with requesters in
the case of requests for large amounts of information?
Requests for large amounts of information can occur in the privacy arena too. OPC
general y finds that an informal approach by agencies works wel – agencies can, and
often do, consult with Privacy Act requesters. Our experience coincides with what is said
in para 9.16: consultation can assist a great deal in helping to refine the clarity and
scope of a request, to the benefit of both agency and requester. It can save a lot of time
and unnecessary expenditure, and it can prevent confusion. It is therefore strongly in the
agency’s interests to consult. The same wil be true under the OIA. It is unclear what
additional benefit there would be amending the statute to create an obligation to consult.
Q37 Do you agree the Acts should clarify that the 20 working day limit for
requests delayed by lack of particularity should start when the request has been
accepted?
No comment.
Q38 Do you agree that substantial time spent in “review” and “assessment” of
material should be taken into account in assessing whether material should be
released, and that the Acts should be amended to make that clear?
The reason for refusal relating to “substantial col ation and research” appears to relate to
the retrievability of the information – that is, the viability of processing the request in the
first place. If the information is not retrievable – at least without unreasonable use of
resources – the organisation effectively cannot provide the information and should be
entitled to refuse the request accordingly. A comparison with section 29(2) of the Privacy
Act may be useful here.
“Review and assessment” refer to a quite different part of the process – that is, once the
information has been retrieved, the organisation needs to consider it against any
reasons for refusing the request. It is less clear that the time spent considering the
information, no matter how substantial, should be a reason for refusing the request
altogether.
Any request for a large amount of information is likely to involve “substantial” time on
review and assessment. Extending the withholding ground as suggested could open the
door for organisations to refuse requests for large quantities of information. This would
be undesirable in principle.
Instead organisations should (as they currently do, at least in part) have flexibility in how
they handle requests involving substantial review and assessment. The ability to seem
extensions of time is particularly important. Al owing reasonable cost recovery if the
15
organisation has to spent substantial time on review and assessment might also be a
possibility.
Q39 Do you agree that “substantial” should be defined with reference to the size
and resources of the agency considering the request?
Any definition would need to be reasonably flexible. Creating a distinction between large
and smal organisations, or ‘rich’ and ‘poor’ organisations, is probably fraught with
difficulty. Simply because an organisation is large does not mean that a request is
automatical y more manageable. OPC experience suggests that large organisations can
sometimes have particular difficulties with information retrieval. For instance, they may
hold information in a wide variety of centres (including overseas). Instead, the Law
Commission’s suggestion of adding “and would place an unreasonable burden on the
resources of the [organisation]” seems sensible.
Q40 Do you have any other ideas about reasonable ways to deal with requests
that require a substantial amount of time to process?
No comment.
Q41 Do you agree it should be clarified that the past conduct of a requester can be
taken into account in assessing whether a request is vexatious?
From OPC experience with the equivalent provision in the Privacy Act, we agree that
past conduct can sometimes be relevant in determining whether a request is vexatious.
However, care is needed as past conduct is not necessarily determinative of whether the
current request is vexatious. For instance, a requester may in the recent past have made
persistent requests, al of which have been refused for good reasons. If the current
request has the same characteristics as the earlier requests, this may indicate the
requester is actual y acting in bad faith.
We are not sure whether a legislative change is in fact required to clarify this point, but if
it is, then the Commission’s suggestion is sensible.
Q42 Do you agree that the term “vexatious” should be defined in the Acts to
include the element of bad faith?
A different and clearer term or phrase might be preferable to ‘vexatious’ if one can be
found. However, the formulation noted in para 9.33 (“no reasonable person could
properly treat it as … having been made in good faith”) sets a threshold that could be
almost unreachable. While the threshold should remain high (and objectively testable),
we suggest instead be something like “a reasonable person is entitled to view the
request as made in bad faith” be considered.
16
Q43 Do you agree that an agency should be able to decline a request for
information if the same or substantially the same information has been provided,
or refused, to that requester in the past?
The question bundles together two proposals, both of which may have merit but should
perhaps be examined separately. The proposals are that an agency should be able to
decline a repeat request for the same information because either:
the request has previously been refused: or
the request has previously been granted.
Repeat requests wil involve some resource on the part of the agency. Many agencies
may find repeat requests unproblematic while some agencies on occasion might find the
resultant cal on resources substantial, either because of large and complex requests or
because they get a large number of repeat requests. The proposal has potential
administrative advantages in making the decision to refuse a request a more
straightforward process and, in those cases where the information would otherwise have
to be made available again, wil save some resource in terms of the task of making the
information available a second time.
OPC takes the view that some expenditure of resources is an inevitable part of the
information access process and a worthwhile price to pay for the benefits that an access
regime provides. However, repeat requests do not necessarily provide public benefits
corresponding to the expenditure of resources. In particular, two major purposes of the
official information legislation – to make information available to requesters and to
provide accountability for the organisation’s actions – may already have been fulfil ed by
appropriately processing the original request.
The first part of the proposal would enable agencies to decline a request on the basis
that the same or substantial y the same information has been refused to that requester in
the past. Although not mentioned in the question, the issues paper makes clear that the
proposal would be as recommended by the Law Commission in 1997 which includes a
proviso ‘that no reasonable grounds exist for that person to request the information
again.’ Obviously the proviso is critical since there wil be many circumstances where
requesters may reasonably anticipate a department wil now be able to release the
information in accordance with the legislation. For example, a request while an
investigation is ongoing might be refused while a similar request made at a later stage
could be granted. Another example might be information refused for reasons of privacy
while an individual is alive might perhaps be treated differently after that person’s death.
With the proviso just mentioned, OPC would support the proposal. OPC suggests that
thought be given to the supporting legal and administrative machinery and guidance if
the potential savings in processing time in relation to requests and review of requests
are to be achieved. For example, it might be useful for a genuine requester who thinks
the circumstances have changed to explain why it is reasonable to request the
information again. Ideal y, if the objectives of this change are to be achieved, the
process of handling the request can be focused upon what has changed and that might
warrant reconsideration. If nothing has changed the proposed provision would
presumably al ow a new refusal to be notified quite quickly.
There would also be some other implications to work through to make sure that the new
arrangements work properly. For example, if a requester did not take the first request on
17
review to the Ombudsmen on its substantive merits, but does take the second refusal on
review, wil the review by the Ombudsmen presume that the refusal was correct and
focus only upon the reasonableness of repeating the request? That might be an efficient
approach in keeping with the objectives of this proposal but there may be objections to
doing so. However, if the Ombudsmen looks at the ful merits, there may be some
difficulties for the agency depending on how recently they considered the first request. If
the agency has to be prepared for a ful reconsideration by the Ombudsmen on the
review, there may not be significant resource savings in using this new shortcut reason
for refusal.
The second part of the proposal would empower the agency to refuse a request based
upon the fact that the same information had previously been given to the requester. This
was not in the original 1997 proposal but has been bundled into the question. The cited
precedent for this approach is the Criminal Disclosure Act. Criminal proceedings have,
in the past, been a context in which there have been a number of repeat requests in a
setting which the stakes are high and the administrative burdens have been said to be
substantial. The criminal justice repeat request issue has now been satisfactorily dealt
with by that other statute.
OPC does not oppose the proposal that a requester that has already been supplied with
the information could be refused if asking a second time for the information. After al , the
OIA has already performed its purpose by making information available on the first
occasion and it appears that the subsequent requests might represent a cost on the
public purse without corresponding public benefit. While there wil sometimes be good
reasons to make a repeat request, that possibility is protected by the proposed caveat
that a refusal is subject to there being no reasonable grounds for requesting the
information again.
As a matter of practice, there may be some chal enges in operating the proposed
arrangements. OPC does not see those administrative difficulties as insuperable nor a
reason to shy away from making the proposed change. However, they should be
anticipated and managed in the legal and administrative machinery and in the guidance
to agencies. For example, if the administrative benefits of the proposal are to be
realised then a relatively generous interpretation of ‘substantial y the same’ information
may need to be taken. Similarly, some thought might need to be given to the possibility
of requesters getting around the new reason for refusal by asking for the information in
another capacity (e.g. rather than as an individual as the ‘president’ of an un-
incorporated action group) or by asking a friend to make the same request. OPC has no
particular suggestions in relation to these and similar issues with the proposal but
suggests that they be considered.
Q44 Do you think that provision should be made for an agency to declare a
requester “vexatious”? If so, how should such a system operate?
We do not believe that an organisation receiving a request should itself be able to
declare a requester vexatious (with the effect that it would be able to refuse to deal with
that requester altogether). However, it is worth considering whether a suitable process
exists or can be created to declare a person vexatious fol owing which requests need not
be actioned except perhaps with leave.
18
Given the purposes of the official information legislation, including enhancing democratic
participation, it would be an extreme measure to bar a person from making official
information requests altogether. Such power should not be left in the hands of an
Executive body, particularly one that is affected by the requester’s behaviour and
therefore arguably biased. That measure should only be taken after proper consideration
by a suitably impartial body such as the Ombudsmen or a judicial body. Perhaps this is
a role that could be conferred on the Human Rights Review Tribunal? The HRRT has an
existing specialism in information access law under the Privacy Act.
Q45 Do you agree that, as at present, requesters should not be required to state
the purpose for which they are requesting official information nor to provide their
real name?
The motive for asking for information is general y not relevant – official information
should be available to any requester unless there is a proper basis for withholding it. The
availability of information is a fundamental purpose of the legislation and requiring a
motive (on which an organisation might then make a judgment) could compromise that
purpose.
Similarly, under the Privacy Act, motive is not general y relevant to access requests.
It would also be impractical to require requesters to state their purpose – if they wished
to lie, it would be easy for them to do so. And it does not seem desirable to introduce a
range of enforcement mechanisms to ensure that requesters tel the truth. Instead, it
seems best to retain the current informal system where an agency can ask the requester
why they need the information – by way of being able to handle the request helpful y –
and most requesters are happy to volunteer the information.
Similar issues might arise with requiring requesters to provide their real name.
Q46 Do you agree the Acts should state that requests can be oral or in writing and
that the requests do not need to refer to the relevant official information
legislation?
Requesters should not need to refer to the legislation. They should not need to be
familiar with the official information or privacy legislation – it is enough to know that they
can ask for information. Organisations with greater knowledge of the statutory
requirements should provide al reasonable assistance. It is not uncommon for
requesters to be uncertain whether their request fal s under the OIA or the Privacy Act
and it does not matter if they cite the wrong Act or neither Act. Complaints on review
can be transferred between the Ombudsmen and OPC. Requiring requesters to refer to
the specific legislation would be off-putting for many, would be unnecessarily
bureaucratic and would elevate form over substance.
It is up to the agency to determine what legislation applies to the request and to deal
with it accordingly.
If there is confusion on the point, then we agree that it might be helpful to specify that
requests can be oral or in writing. A specific statement in the Act would help address the
19
practice of some officials to fob off requesters or deliberately disregard some requests
where the OIA is not explicitly cited in the request.
Q47 Do you agree that more accessible guidance should be available for
requesters?
For the law to work optimal y it would be desirable for al parties – both those that make
and respond to requests – to understand some aspects of the law and its operation
(although requesters should not be expected to become expert). Most of the discussion
on the shortcomings of the OIA has tended to focus upon the need to better educate
officials. While that must be a priority, this question does raise a useful point about the
possible need for guidance for requesters.
There might be several types of guidance that could contribute to the objectives of the
OIA. The nature of that guidance may affect the choice of entity that can best offer it.
For example:
guidance on interpretation of the law suitable for requesters could perhaps be a role
vested with the same body that has the task of offering interpretational guidance to
organizations;
guidance on where to direct particular requests would need a good knowledge of
information held across government;
guidance on how to frame a request could be approached in terms of easing the
administrative burden on officials or, alternatively, in terms of ensuring that requests
are effective even in the face of uncooperative departments. Advice tendered by an
experienced investigative journalist may differ from that of the Ombudsmen or SSC
on that last topic.
It may also be useful to inform people of their rights of access and to encourage them to
use them, a role for civil society perhaps.
20
CHAPTER 10: PROCESSING REQUESTS
Question 48 - Do you agree the 20 working day time limit should be retained for
making a decision?
No comment.
Question 49 - Do you agree that there should be express provision that the
information must be released as soon as reasonably practicable after a decision
to release is made?
No comment.
Question 50 – Do you agree that, as at present, there should be no statutory
requirement to acknowledge receipt of an official information request but this
should be encouraged as best practice?
No comment.
Question 51 – Do you agree that ‘complexity of the material being sought’ should
be a ground for extending the response time limit?
OPC supports this proposal.
Question 52 – Do you agree there is no need for an express power to extend the
response time limit by agreement?
No comment.
Question 53 – Do you agree the maximum extension time should continue to be
flexible without a specific time limit set out in statute?
No comment.
Question 54 – Do you agree that handling urgent requests should continue to be
dealt with by Ombudsmen guidelines and there is no need for further statutory
provision?
No comment.
Q55 Do you agree there should be clearer guidelines about consultation with
ministerial offices?
No comment.
Question 56 – Do you agree there should not be any mandatory requirement to
consult with third parties?
Please see our answer to Q71 (where we draw together strands of several of our
answers and make some suggestions for reform of the processes as they concern
21
protection of privacy). The question of consultation with affected third parties is just one
of the parts of the process that need to be considered, albeit an important one.
The merits of consultation with third parties might be seen in two somewhat different
contexts:
status quo – under the current arrangements, third parties have no rights in the
process and thus consultation can mainly be viewed from the perspective of how
useful it is to the persons that are accorded a role in the current processes, namely the
requester, department and the review body. OPC’s view is that with the current
processes that consulting with third parties – for example people whose privacy might
be affected by release of official information – is best practice. In situations involving
privacy, we encourage organisations, and the Ombudsmen on review, to consult the
individuals concerned wherever possible. While occasional y consultation might create
difficulties or slow up the process, in our experience it usual y works wel and delays
are far more commonly caused by departments and the review process than these
third parties. Consultation can often improve the process. Sometimes it speeds the
release of information where no objection is encountered or, where the third party has
concerns, it helps to focus the issues and enable the department to better understand
the sensitivities;
if the OIA process were to be reformed to give third parties a recognised place in the
process - consultation wil carry the same advantages and disadvantages as with the
current processes but serve the additional purpose of giving effect to third parties’
rights and providing them with a meaningful way of protecting their interests.
OPC takes the view that there should be provision expressly in the statute for interested
third parties to be consulted with a process for those views to be taken into account by
the organisation making the decision on release and in relation to review processes
(which should include a right for the interested third party to take the matter on review to
the Ombudsmen).
Question 57 – Do you agree there should be a requirement to give prior notice of
release where there are significant third party interests at stake?
Please see our answer to Q71 in which we try to tie together strands from our answers
to several questions.
The issues paper in essence offers two options to provide improvements over the status
quo in relation to protecting third party interests, notably the protection of privacy and
trade secrets. These seem to be:
a process whereby the third party has a right to be notified by the department of a
request, to make a submission to the department before a decision is taken on the
release of the information and to take the matter on review to the Ombudsmen if the
department decides that it does intend to release the information (this is a brief
characterisation of the model described at 10.42);
the Law Commission’s favoured approach that the third party be given notice after
the department takes its decision to grant the request, but before the information is
actual y released, to provide a smal window of opportunity for the affected third party
to informal y influence the department, ready itself for the release or perhaps take
judicial review proceedings (described at 10.47).
22
OPC favours the option whereby the third party having a clear interest in the matter of
release is accorded a proper opportunity to be heard in the process. This seems only
fair. It could go some considerable distance to make the process of protecting privacy
and trade secrets in such cases a meaningful reality. The other option does not seem a
very credible response to the issue of protecting privacy in accordance with the objects
of the Act.
OPC takes the view that the process should be coupled with a right for the interested
third party to take the matter on review to the Ombudsmen. This recognises the
strength of the current processes and seems a logical adjunct to the proposed reform
whether it be a consultation process as OPC favours, or the more restricted notification
requirement, that the Law Commission currently favours. Judicial review is an important
administrative law safeguard and interested parties should, of course, be able to avail
themselves of such judicial processes. However, judicial review is not wel geared
towards information access questions and, given the expense, having that as the only
review option wil deny effective protection to most individuals that wish to protect their
privacy. Judicial review also cannot substitute for the role of substantive appeal rights.
Nor does it provide a meaningful opportunity to be heard by the decision-maker
Q58 How long do you think the notice to third parties should be?
No comment.
Question 59 – Do you agree there should be provision in the legislation to al ow
for partial transfers?
If the agencies are truly confused about their ability to transfer a request in part, then it
might be useful for the legislation to clarify that they can.
However, we are surprised that any difficulty might arise. Our view is that section 14 (like
section 39 of the Privacy Act) is broad enough to encompass partial transfers –
particularly when coupled with the requirement in section 13 (section 38 of the Privacy
Act) to provide assistance to requestors. It is therefore not clear that legislative change is
necessary.
We do not have any experience in our own jurisdiction indicating a change is necessary.
However, OIA requests may more commonly involve multiple agencies than Privacy Act
requests do.
Q60 Do you agree there is no need for further statutory provisions about transfer
to ministers?
No comment.
Q61 Do you have any other comment about the transfer of requests to ministers?
No comment.
Question 62 – Do you think that whether information is released in electronic form
should continue to depend on the preference of the requester?
23
We think that the requester should be able to continue to specify his or her preferred
method of receiving the information (with the existing caveats al owing the organisation
some flexibility where acceding to such a request is not appropriate).
Releasing information in electronic form may increasingly suit both agencies and
requesters. There is nothing to stop an agency from suggesting that this may be a
convenient form in which to release the information.
However, the requester may have good reasons to prefer another format or be unable to
make use of the information in electronic format. The requester’s entitlement to receive
the information should not depend on the equipment or programs that they have
available, or on their technical capability, or the preferences of others.
We also mention that there might be cases where a department may prefer to release
information in a format, including on occasion a non-electronic format, to protect privacy
or some legitimate governmental interest. The arrangements should remain flexible to
accommodate that.
Question 63 – Do you think the Act should make specific provision for metadata,
information in backup systems and information inaccessible without specialist
expertise?
If the volume of requests involving this type of information is high, or if agencies are
unsure how to manage them, it may be useful to include a specific provision. We are
unsure, though, that this is necessary at this time.
If a provision were to be included, the Privacy Act’s approach might be worth considering,
though it could be too broad to work successful y in the OIA environment. The Privacy
Act links access entitlements to the retrievability of information. If information is not
readily retrievable, a request may be refused.
It is important, however, that ready retrievability is not read down too much. Agencies
need to have good information management systems – they should be expected to be
able to retrieve most types of records on request.
Question 64 - Should hard copy costs ever be recoverable if requesters select
hard copy over electronic supply of the information?
No comment.
Question 65 – Do you think that the official information legislation needs to make
any further provision for agencies to place conditions on the re-use of information,
or are the current provisions sufficient?
The possibility of releasing information on conditions is somewhat problematic as the law
is written at present. The OIA does not create machinery for imposing conditions nor
real y anticipate a role for conditions to be imposed upon release. However, the Act
does anticipate that the Ombudsmen might handle a complaint relating to the imposition
of conditions. This presumably is a supervisory role to prevent agencies introducing
24
non-statutory barriers to access rather than to role intended to give legitimacy to the
imposition of conditions. (The position under the Privacy Act is similar.)
It is clear that the OIA anticipates the various interests, such as privacy, to be protected
by the refusal of a request (subject, of course, to countervailing public interests).
An advantage of a regime for imposing conditions is perhaps perceived to includes an
enhanced ability to make more final y grained decisions on refusal – perhaps al owing for
the release in certain circumstances where otherwise a blanket refusal would be
necessary. If the relevant interest, such as privacy, can thus be protected it appears on
its face to be a ‘win:win’ for both transparency and accountability. Similarly one might
imagine that the ability to make more finely grained decisions on release would also
translate into the cases where there is good reason to refuse a request because of
privacy but there are countervailing public interests. Perhaps in some such cases those
countervailing public interests can be served in a way that the privacy interest can be
protected by a condition.
Accordingly, OPC welcomes exploration of the possible role of conditions on release in
the OIA (and if a good solution can be found, a counterpart provision in the Act says
regime and the Privacy Act). However, we are of the view that it wil essential for the
conditions to be effective and enforceable. A simple promise by a requester to do or
refrain from doing something of itself is not enough. The regime must be effective to
ensure that conditional release does not become a figleaf for releasing information when
meaningful protection of privacy should demand its withholding.
If conditions were seen as having a useful place in the OIA regime, we consider tat least
the fol owing issues might need to be satisfactorily addressed:
the scope of conditions, where they are appropriate and where they are not;
the form of conditions, how they can be framed and imposed;
participation in framing the conditions, whether the requester can insist on
unconditional release or nothing, whether third parties affected by the conditions are
to be consulted;
review of conditions by the Ombudsmen, before or after release;
redress for affected persons in the case of breach of a condition;
incentives for compliance with conditions and sanctions for non-compliance;
clarifying responsibility for enforcing and upholding conditions (is it a role for the
department concerned, the Ombudsmen or an aggrieved third party?).
OPC does not underestimate the chal enge in crafting a suitable regime. We see no
value in unenforceable conditions which provide only an il usion of protection of the
relevant interests (or conversely an unreasonable barrier to access). However, we think
that if an appropriate effective and enforceable regime for conditions can be devised,
this may offer benefits for the objects of OIA as wel as the appropriate protection of
interests such as privacy.
It is possible that the Privacy Act might have some part to play in crafting a ful y effective
and enforceable regime. It could only be part of any regime since it covers only personal
information and is focused on resolution of complaints and civil redress and thus does
not provide the incentives, sanctions and enforcement regime that might be necessary.
However, if release on conditions is part of the future OIA regime, it would be desirable
25
in cases of release on conditions intended to protect privacy, for the Privacy Act to
reflect the conditional nature of the release and possibly provide redress in cases of
breach.
Question 66 – Do you agree there should be regulations laying down a clear
charging framework for both the OIA and the LGOIMA? (also question 67)
We have no particular view on this question in the official information context. However,
we do mention that any new charging framework could have an indirect effect on
charging under the Privacy Act. While public sector agencies cannot charge a requester
for access to his or her personal information, private sector agencies can and
occasional y do charge. Those private sector agencies are aware of the guidelines for
charging under the OIA and would be equal y aware of any new framework.
Q67 Do you have any comment as to what the framework should be and who
should be responsible for recommending it?
No comment.
Q68 Do you agree that the charging regime should also apply to political party
requests for official information?
No comment.
26
CHAPTER 11: COMPLAINTS AND REMEDIES
Q69 Do you agree that both the OIA and LGOIMA should set out the ful
procedures fol owed by the Ombudsmen in reviewing complaints?
No comment
Q70 Do you think the Acts provide sufficiently at present for failure by agencies to
respond appropriately to urgent requests?
No comment.
Q71 Do you agree with the existing situation where a person affected by the
release of their information under the OIA or the LGOIMA cannot complain to the
Ombudsman?
Briefly, in relation to this question, OPC takes the view that there should be provision for
persons affected by the release of information to take a complaint. By itself, a complaint
to the Ombudsmen after the event is not an effective reform and seems incomplete. We
consider that in addition to the possibility of complaint or redress where information has
been released that should have been withheld, there is a need for integrated reforms
dealing with the process for agencies to consult with affected third parties and for the
possibility for review of a decision to release to be taken to the Ombudsmen, before
release and not merely after the event.
Since these various issues interrelate, we take the opportunity to offer a longer and more
general response. This answer draws upon some of the issues touched upon in
questions 56, 57, 58, 65, 71, 72, 75, 76, 77, 79 and 82.
In OPC’s view the OIA has numerous strengths and is a key law encouraging both
accountability and transparency, virtues that are essential to a modern, vibrant and
democratic society. However, our view is that the processes are somewhat deficient in
giving effect to the protection of the rights and interests of third parties whose
information are held by government bodies and need enhancement. (The issues of
concern to OPC relate, of course, to protection of personal information and privacy.
However, counterpart issues arise with trade secrets and commercial y confidential
information entrusted by businesses with public bodies. Although not discussed in detail
in this answer, our proposals with respect to privacy cases should probably also be
applied to cases involving request for trade secrets.)
At the outset, we emphasise a fundamental point that the objective of a freedom on
information law must be to successful y ensure
both the release of information where
appropriate
and the protection of interests identified as needing protection. The OIA is
not successful if it simply ensures the release of information notwithstanding competing
interests such as privacy. The OIA explicitly provides that the Act’s purpose includes ‘to
protect official information
to the extent consistent with…the preservation of personal
privacy.’ In OPC’s view the scheme of the OIA has deficiencies in relation to protecting
third party interests.
27
The shortcomings of the OIA processes would appear to include:
not providing an entitlement, nor in many cases even an opportunity, for affected third
parties to be consulted on a decision that may significantly affect their interests;
the absence of an obligation even to tel significantly affected third parties that there
has been a decision to release information or that information has been, or is about to
be, released;
the absence of a process for affected third parties to request the review of a decision
to release information before the release is made;
an imbalance in such cases since the requester, but not the affected party, can
participate in the process;
no statutory consequences for wrongful release of information and, in particular, no
opportunity for affected third parties to complain about information wrongly released or
to seek redress for harm caused by the release;
the lack of meaningful appeal or review on the merits of an Ombudsmen
determination.
The reform that OPC recommends would add the fol owing elements to current OIA
processes:
an obligation upon departments to give notice to the individual concerned where there
are significant third party interests at stake (i.e. release wil substantial y affect the
privacy of an identified individual);
the affected individual would have a right to make a submission to the department in
relation to the request;
if the department proposes to release the information, the affected individual would be
given the right to take the matter on review to the Ombudsmen and the information
would not be released in the meantime;
in cases where the department withholds requested information and the requester
takes a complaint to the Ombudsmen, the Ombudsmen would be obliged to give
notice to the affected individual concerned where there are significant third party
interests at stake and provide an opportunity to be heard;
the Ombudsmen’s opinions would be re-characterised as determinations and be
binding (subject to the outcome of any appeal);
where the Ombudsmen determines that the information must be released, the affected
individual may appeal the determination to the HRRT where there significant third
party interests at stake;
the Cabinet veto would be dropped but there would be a provision for a department,
with Cabinet approval, to appeal to the HRRT where the Ombudsmen determines that
information must be released.
The proposal just described offers promise from OPC’s perspective. Amongst other
advantages:
it maintains some of the strengths of the existing system most notably having the
Ombudsmen undertaking access reviews in much the same way as the present;
it provides robust administrative and legal processes that are missing from the current
system in relation to cases where release would have a significant effect on third party
interests;
it provides stronger overal open government requirements transforming the
Ombudsmen’s powers from opinions to determinations;
it provides new accountability by making consultation with affected third parties
mandatory and providing for appeal;
28
it replaces the poorly regarded veto provisions which are perceived to introduce a
political element into the arrangements and are difficult to use with a more transparent
appeal process;
the use of the courts is avoided as the primary appeal authority but instead the
proposal draws in the HRRT which did not exist when the OIA was devised but which
has now had 17 years of information access law jurisdiction and expertise.
OPC believes that through inclusion of appropriate thresholds, time limits, exceptions
and processes, the process need not introduce undue delay.
It would be possible to adopt some elements of this proposal without taking the entire
package. For example, the proposal would offer some benefits without including
provision for appeal. However, we take the view that determinations on release where
there are significant third party interests at stake warrant an appeal process. That does
not seem a terribly remarkable proposition in most areas of law including with respect to
the Privacy Act.
In this proposal we have not suggested that requesters be given the opportunity to
appeal the Ombudsmen’s determinations to the HRRT. Instead, we took the view that
the appeal rights should be linked to the cases where the determination affects a party’s
rights or legal interests. The cases that we are concerned with where there are
significant third party interests at stake (i.e. privacy or the disclosure of trade secrets
entrusted to the government) and the third party should be empowered to participate in
determination of the extent of those interests. Similarly, a binding determination upon
the government affects the government’s interests and thus, with Cabinet approval,
departments should be able to appeal determinations. By contrast, the OIA does not
attempt to confer legal rights upon requesters to have access to information. Rather, the
OIA confers procedural entitlements upon requesters.
OPC would not be opposed to requesters being given appeal rights but do not see
conferring such rights as an essential feature of our proposal. Under our proposal, the
vast majority of cases that are not resolved to departmental level wil be final y
determined by the Ombudsmen. We anticipate that only a tiny proportion wil go on
appeal.
Obviously, that proportion would expand if unsuccessful requesters could also appeal.
We are confident that arrangements along the lines that we have proposed could be
successful y devised and work satisfactorily. Some care wil need to be taken in
devising thresholds and procedures in relation to third party consultation obligations.
There might need to be exceptions for certain cases, for instance, for reasons of
practicability. However, there are precedents for ‘reverse-FOI’ rights in other
jurisdictions and we expect that those matters can be satisfactorily dealt with.
Q72 Do you agree there should be grounds to complain to the Ombudsmen if
sufficient notice of release is not given to third parties when their interests are at
stake?
See answer to Q72.
Q73 Do you agree that a transfer complaint ground should be added to the OIA
and the LGOIMA?
29
No comment
Q74 Do you think there should be any changes to the processes the
Ombudsmen’s follows in investigating complaints?
As mentioned at Q71, OPC sees a useful role for third party consultation in appropriate
cases.
Q75 Do you agree that the Ombudsmen should be given a final power of decision
when determining an official information request?
There may be significant advantages in having the Ombudsmen provide determinations
of OIA requests rather than simply rendering opinions. A properly crafted legislative
scheme for Ombudsmen determinations may be better than the current arrangement
that effectively makes the Ombudsmen opinions enforceable rather than merely
persuasive yet without many of the legal safeguards one might normal y expect in a
process for making determinations affecting people’s interests.
OPC would wish to see enhancements of the processes to protect third party interests,
notably individuals whose privacy is at risk by the release of information. As discussed
in more detail at Q71, this should include notification to the individual, an opportunity to
be heard, an ability for the third party to complain to the Ombudsmen and an appeal
right.
In the counterpart review of the Privacy Act, OPC has supported a suggestion for OPC
to move to issuing determinations rather than simply rendering persuasive opinions.
However, that proposal is premised upon there being an appeal right to the Human
Rights Review Tribunal by the person whose interests are affected.
There is discussion earlier in the issues paper about the role of Ombudsmen case notes
and precedents (see Q8-11). OPC anticipates that if there is a move to a system of
making issuing determinations that some kind of formal document wil need to be issued
in each case, perhaps in the form of a complete opinion or some abbreviated short-form
determination. It may not necessary be the case that al matters taken on complaint to
the Ombudsmen would end in a determination since experience in other jurisdictions,
including OPC’s under the Privacy Act, suggests that a proportion of cases wil continue
to be resolved by consent without reaching that point. It may be that case notes have a
continuing useful educative role to play in reporting upon a selection those resolved
cases even if more vexed matters are dealt with by formal binding determinations.
Q76 Do you agree that the veto power exercisable by Order in Council through the
Cabinet in the OIA should be removed?
In some cases a veto could possibly be used to protect the privacy interests of third
parties when the Cabinet is of the view that an Ombudsmen determination has not
struck the right balance in relation to parties whose interests are significantly affected by
the release of information.
However, it seems more likely that vetos wil be
contemplated when other governmental reasons are perceived to be as risk. Vetos do
not provide a substitute for a process that enables the third parties to be heard before an
access decision upon release is made.
30
The existing veto process is extremely difficult to use from a political perspective. This
has made it of little use as a meaningful OIA mechanism as a useful final check on the
Ombudsmen’s decisions. The veto, rightly or wrongly, may be perceived as a potential
political weapon rather than a constitutional one or as a respectable part of the overal
OIA processes.
Accordingly, OPC suggests that the veto power be removed and replaced by appeal to
the Human Rights Review Tribunal. It could be provided that a department may only
appeal with Cabinet approval. This would align the new appeal threshold with the veto
threshold and would ensure that decisions to appeal were taken col ectively by Cabinet
rather than by an individual department. As a result appeals would be quite exceptional
and not routine.
It may wel be that Cabinet would be more wil ing to occasional y authorise the taking of
an appeal to the HRRT than it is to exercise a veto. This would be a healthy
development and benefit the OIA system more general y since no administrative review
body is infal ible. A fundamental tenet of the common law system is the judicial
oversight and guidance provided by an appeal process.
Q77 Do you agree that the veto power exercisable by a local authority in the
LGOIMA should be removed?
As with Q76, OPC suggests that if the veto is removed it might perhaps be replaced by
an appeal right to the HRRT on the resolution of a ful Council.
Q78 If you believe the veto power should be retained for the OIA and LGOIMA, do
you have any comment or suggestions about its operation?
No comment.
Q79 Do you agree that judicial review is an appropriate safeguard in relation to the
Ombudsmen’s recommendations and there is no need to introduce a statutory
right of appeal to the Court?
OPC does not see judicial review as a substitute for appeal on the merits. However,
OPC sees promise in using the specialist HRRT as an appeal body rather than the
regular courts.
Q80 Do you agree that the public duty to comply with an Ombudsman’s decision
should be enforceable by the Solicitor-General?
No comment
Q81 Do you agree that the complaints process for Part 3 and 4 official information
should be aligned with the complaints process under Part 2?
No comment.
31
Q82 Do you agree that, rather than financial or penal sanctions, the Ombudsmen
should have express statutory power to publicly draw attention to the conduct of
an agency?
No comment.
Q83 Should there be any further enforcement powers, such as exist in the United
Kingdom?
The issues paper points to evidence of non-compliance and observers that ‘not al of the
conduct is blameless’. An inference is drawn of ‘game playing’. The report quotes an
informed commentator who speaks of ‘deliberate flout[ing] of the law’, ‘stone-wal [ing]’
and a lack of ‘good-faith’.
The approach suggested in the issues paper is simply to authorise the Ombudsmen to
report publicly on the conduct of the agencies. While obviously supporting the
Ombudsmen having such a power, surely they can make such reports already under
existing powers? The discussion would seem to suggest that stronger powers of the
type already vested in other FOI enforcement bodies might be warranted.
32
CHAPTER 12: PROACTIVE DISCLOSURE
Q84 Do you agree that the OIA should require each agency to publish on its
website the information currently specified in section 20 of the OIA?
OPC has no strong view as to whether the directory of OIA should continue to be
published although we can see some sense in moving to a system whereby departments
simply publish the same details on their own website. Such a change would seem to
accord with the way in which citizens now expect to locate and retrieve information.
Such a change in approach would probably also be more cost effective and timely to
compile and maintain.
In developing a reform option in this context, OPC would encourage the Law
Commission to take into account the counterpart directory provision in section 21 of the
Privacy Act in relation to agency holdings of personal information. OPC had
recommended that the provision for directories under the Privacy Act be dropped and
replaced by a similar reform as suggested here, namely that agencies be required to
publish some of the same details themselves. It is suggested that if a similar reform is
adopted in relation to the OIA that some thought be given to harmonising the
requirements so that public bodies conveniently can meet their dual obligations.
Q85 Do you think there should be any further mandatory categories of information
subject to a proactive disclosure requirement in the OIA or LGOIMA?
As mentioned in relation to Q84, there is provision in section 21 of the Privacy Act for
details of agencies’ personal information holdings to be published in a directory. Those
Privacy Act directories have never actual y been published. Given the expectations
upon public bodies to be transparent about their information handling, there might a case
to impose specific obligations on departments that do not apply to, say, private
companies. The classes of information set out in section 21 of the Privacy Act, in
relation to databases of personal information, may be of that nature.
Q86 Do you agree that the OIA and LGOIMA should require agencies to take al
reasonably practicable steps to proactively release official information?
The proposal does present some risks to privacy through mass or routine release of
personal information. If such releases were to be treated as being done ‘under the OIA’,
this could be quite problematic in terms of accountability for such disclosures under the
Privacy Act.
Q87 Should such a requirement apply to al central and local agencies covered by
the OI legislation?
No comment.
Q88 What contingent provision should the legislation make in case the
“reasonably practicable steps” provision proves inadequate? For example, should
there be a statutory review or regulation making powers relating to proactive
release of information?
No comment.
33
Q89 Do you think agencies should be required to have explicit publication
schemes for the information they hold, as in other jurisdictions?
No comment.
Q90 Do you agree that disclosure logs should not be mandatory?
No comment.
Q91 Do you agree that section 48 of the OIA and section 41 of the LGOIMA which
protect agencies from court proceedings should not apply to proactive release?
OPC agrees that there should be no statutory protection for agencies from court
proceedings in relation to proactive release of information. In particular, public bodies
should not be given carte blanche immunity from any Privacy Act liability for harm arising
from disclosing personal information, for instance by thoughtlessly posting it on the
internet.
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CHAPTER 13: OVERSIGHT AND OTHER FUNCTIONS
Q92 Do you agree that the OIA and the LGOIMA should expressly include a
function of providing advice and guidance to agencies and requesters?
No comment.
Q93 Do you agree that the OIA and LGOIMA should include a function of
promoting awareness and understanding and encouraging education and
training?
There would seem to be ample scope for improving the training arrangements relating to
the OIA regime. It wil be difficult to achieve the objectives of the legislation unless
officials are trained in their responsibilities under the Act. This can occasional y spil
over as a problem affecting the administration of the Privacy Act in cases where officials
fail to treat an OIA request properly and, instead of given proper statutory reasons for
refusal, as is required under the OIA, fob requesters off citing the Privacy Act.
Q94 Do you agree that an oversight agency should be required to monitor the
operation of the OIA and LGOIMA, col ect statistics on use, and report findings to
Parliament annual y?
If this proposal goes forward, thought should be given to the merit of similarly col ecting
statistics on public sector subject access requests.
Q95 Do you agree that agencies should be required to submit statistics relating to
official information requests to the oversight body so as to facilitate this
monitoring function?
Some effort would be required by organisations to produce statistics, and a coordinating
entity to compile and analyse the results. It wil be important to ensure that the value of
these statistics warrants the effort.
Q96 Do you agree that an explicit audit function does not need to be included in
the OIA or the LGOIMA?
No comment.
Q97 Do you agree that the OIA and LGOIMA should enact an oversight function
which includes monitoring the operation of the Acts, a policy function, a review
function, and a promotion function?
No comment.
Q98 Do you agree that the Ombudsmen should continue to receive and
investigate complaints under the OIA and the LGOIMA?
No comment.
Q99 Do you agree that the Ombudsmen should be responsible for the provision of
general guidance and advice?
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No comment.
Q100 What agency should be responsible for promoting awareness and
understanding of the OIA and the LGOIMA and arranging for programmes of
education and training for agencies subject to the Acts?
No comment.
Q101 What agency should be responsible for administrative oversight of the OIA
and the LGOIMA? What should be included in the oversight functions?
No comment.
Q102 Do you think an Information Commissioner Office should be established in
New Zealand? If so, what should its functions be?
No comment.
Q103 If you think an Information Commissioner Office should be established,
should it be standalone or part of another agency?
No comment.
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CHAPTER 14: LOCAL GOVERNMENT OFFICIAL INFORMATION AND MEETINGS
ACT 1987
Q104 Do you agree that the LGOIMA should be aligned with the OIA in terms of
who can make requests and the purpose of the legislation?
No comment.
Q105 Is the difference between the OIA and LGOIMA about the status of
information held by contractors justified? Which version is to be preferred?
No comment.
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CHAPTER 15 : OTHER ISSUES
Q106 Do you agree that the official information legislation should be redrafted and
re-enacted?
OPC tends to agree with the discussion relating to accessibility. Many of the OIA
provisions are reasonably clear but the structure is a barrier to simple understanding. In
relation to the personal access regime, the Privacy Act has inherited some of this undue
complexity, slightly il ogical ordering and difficult to find provisions. OPC has made
detailed proposals in the Privacy Act context for a complete recording of the reasons for
refusal in the Privacy Act with each reason receiving its own section and heading. A
similar approach might also be warranted in terms of the OIA.
If the opportunity were to be taken to redraft and re-enact the entire statute, that would
also offer an opportunity to simplify some of the other provisions or make other
improvements such as more informative headings (for instance the heading ‘documents’
is relatively uninformative in both section 16 of the OIA and the section 42 of the Privacy
Act).
Q107 Do you agree that the OIA and the LGOIMA should remain as separate Acts?
No comment.
Q108 Do you have any comment on the interaction between the PRA and the OI
legislation? Are any statutory amendments required in your view?
No comment.
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