1. I don’t quite understand why an aggregation (e.g. a spreadsheet) of “Flights flown by airline name” would prejudice the commercial position of the airlines or prejudice the supply of similar information, when this information is public on airport websites in the form of arrivals and departures.

2. There might be an obligation of confidence, but I’m not fully satisfied that she had made this out in the letter. It’s very easy to claim that an interest needs protecting without actually checking.

3. I don’t quite know what you mean by “Flights flown due to cancellations, by airline name”. If a flight was meant to be cancelled, but it flew anyway, then that would be serious.

4. I am not sure what you mean by “Flight plans filed”, but I guess Airways would.

5. When I went to the link she provided it said that they can supply “historical and current flight data” and that FIDS (Flight Information Display System) “uses data direct from our air traffic management system to automatically update flight arrival and departure information”. So surely if they can provide this information to the public, they can provide it to you. Oh, but wait, “The hourly rate for data sales work is $180 per hour, with a minimum charge of $720 (excluding GST) applicable to all sales.” And maybe that is why they refused your request?

1. Back on 10 April 2017 I questioned the accuracy of the response by Airways NZ to refuse to make available to you information that which you had asked for about flights flown in 2016. Airways NZ claimed releasing this information would prejudice the commercial position of the airlines and that there as an obligation of confidence. It appears you appealed their decision to the Ombudsman, and that the Ombudsman have ruled in your favour.

2. Therefore Airways NZ was wrong to refuse you the information you sought. In their letter of 12 Jan 2018, they made no admission that their decision was incorrect. You were delayed by nine months while the case was before the Ombudsman because of their refusal to provide the information.

3. In their 12 Jan 2018 letter, they now say that they are prepared to make the information available to you in light of the Ombudsman’s ruling, but that you will have to pay $828 for it ($720 + GST $108). They estimate it will take four hours to extract and compile the data. They have effectively quoted to you their standard minimum charge rate, as set out on their website at http://www.airways.co.nz/products-and-se.... Interestingly, they have also asked for your direct email address and phone number, so as to avoid publishing the flight data to www.fyi.org.nz. I suspect the reason for this is they wish to retain the right to keep charging others for the data they are providing to you.

4. Airways NZ are entitled to charge for supplying information, but that the charge must be “reasonable” (15(2) OIA). They can charge for the searching, retrieval, collation, and formatting of the data. (Guide: Charging June 2017, p. 6). A charge will be reasonable if it follows the charging guidelines on the Ministry of Justice website. The Charging Guidelines specify standard charges of:

- $38 per half hour of staff time in excess of one hour; and

- $0.20 per page for photocopying in excess of 20 pages

“An agency may be justified in charging higher rates for staff time where staff with specialist expertise that are not on salary (ie, contractors) are required to process the request, in which case a rate not exceeding their actual rate of pay per hour may be charged.” (Guide: Charging June 2017, p. 6)

5. In calculating the charge, Airways NZ would need to have correctly understood what information you actually want. During the complaint to the Ombudsman, was it clarified what information you actually wanted? The reason I ask is that your original request (17 Mar 2017) is different to how Airways NZ interpreted it (7 Apr 2017). In order to accurately calculate the charge, Airways NZ needs to be sure of what information you actually want.

6. If they do have an accurate understanding of the information you have requested, the next question is whether the charge is reasonable, given the Ombudsman’s guidance. Using the Charging Guidelines above, I have found the charge you were quoted to be unreasonable. According the Guidelines you should be charged $228 for the three hours of work (excluding the four hour which is not charged for). Compare this to the $828 “to extract and compile the data” and you can see a big price differential. (Both the $228 and $828 are inclusive of GST).

7. Airways NZ has developed, and for the purpose of your request relied on, their own in-house charging fee structure. Here’s the official guidance from the Ombudsman about in-house charging structures, in the next three paragraphs:

“Agencies may develop their own charging policies ... . However, the application of an internal charging policy that is inconsistent with the Charging Guidelines, for example, by charging higher rates for staff time or photocopying, risks an Ombudsman’s finding on review that the charge in question was unreasonable (also see cases 176345 and 368207 and 307851).” (Guide: Charging June 2017, p.8)

“Agencies subject to the OIA are generally required to follow the Charging Guidelines (the Guidelines say they should be followed ‘in all cases unless good reason exists for not doing so’).” (Guide: Charging June 2017, p. 17)

“The blanket application of a charging policy (for example, by applying a ‘standard charge’) without regard to the circumstances of a particular case is unreasonable. Any internal charging policy must retain the flexibility to remit a charge in whole or part where that is warranted in the circumstances of the case. Specific regard must be had to the public interest in making the information available (see Remission in the public interest), and whether meeting the charge would be likely to cause hardship to the requester ... (Guide: Charging June 2017, p. 18)

8. Airways have proposed to charge you a set rate, rather than actually charging for the actual costs incurred as a result of your request. They have just applied the ‘going rate’ without due consideration to the costs incurred. Furthermore they have determined the time required to complete the tasks to make the information available, but have then incorrectly applied the appropriate charging cost.

9. If you have a commercial (i.e., profit seeking) motive, then full costs may be charged. If you do not have a commercial motive, they may not try to make a profit from charging.

10. Therefore, the charge proposed by Airways NZ is unreasonable and I recommend you complain to the Ombudsman noting that:

- Airways NZ has applied their ‘standard rate’ for data requests instead of applying the Ministry of Justice Charging Guidelines, which would properly calculate the actual costs involved in making the information available.

- Even if Airways NZ wishes to derogate from the Charging Guidelines and apply their own charge, the proposed charge ($828 incl GST) is exorbitant and excessive for the four hours of estimated time to be spent on the request.

- There is no mention by Airways NZ of contractors or specialist staff being required to justify a higher rate. In fact Airways NZ has a “data services team” that is dedicated to supplying data to customers. (https://www.airways.co.nz/products-and-s...)

- That your use of the data supplied will be non-commercial (if in fact it is). You might like to explain how you intend to use the data.

- The fact that Airways NZ has stated that they will “extract and compile” the relevant data strongly suggests that the data is “held” by Airways NZ and does not need to be created.

11. The last matter I want to address is the statement that “If you do not want to meet the costs of the data, then we will refuse to disclose the information under section 18(d) of the OIA as the information is publically available”. They then cite footnote 2 which states “Data which can be collated form [sic] information posted on a daily basis at New Zealand airports and on airport websites.”.

12. Notwthistanding that as an SOE the Airways is required to operate “as profitable and efficient as comparable businesses that are not owned by the Crown”, it is not justifiable to charge unreasonable amounts. Charging is meant to be a way of partially recovering costs, not about making money.

13. For financial year ending June 2016, Airways NZ returned a $9.0m dividend to the shareholding ministers ($4.0m in 2015); they are not short of cash. They earn 92% of their revenue from air traffic management and the sale of data is not a big revenue generator for them, yet they will impose on you an excessive cost for you to bear as a single individual.

14. The footnote claims that the data is publically available, yet this is incorrect. Flight data, as a type of data, is in the public domain. Airport arrival and departures is published for a short time on airport websites and physically on departure/arrival boards at the airport before being removed, as the information is ephemeral. There is no searchable database publically available for you to find “total number of flights flown, by airline name, for the year ending 2016”. You have asked for a total aggregate or compilation of flights in the 2016 year, not daily flights. The 2016 flight data, in aggregate form, is not publically available. If the data was publically available, then I am pretty sure you would have obtained it from that public source already!

15. While you could make enquiries with airports as to whether they retain historical flight information or contact airlines directly, this is a roundabout method and it does not seem sensible to do this when there is an agency subject to the OIA that holds this data.

16. From Airways NZ’s responses to-date, they are being most unhelpful. First they incorrectly withheld the information on the belief there would be prejudice (harm) to the airlines if the information was released, now they are incorrectly applying the Act and guidelines with respect to charging. For what is a fairly simple request, it is taking them a lot of time (and money) to deal with.

References

OIA
http://www.legislation.govt.nz/act/publi...

Ministry of Justice Charging Guidelines
https://www.justice.govt.nz/about/offici...

Charging A guide to charging for official information under the OIA and LGOIMA
http://www.ombudsman.parliament.nz/syste...

Ombudsman’s Official information guidelines
http://www.ombudsman.parliament.nz/resou...

Dividend payments
http://www.treasury.govt.nz/downloads/co...