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New Zealand Law Commission - Government Responses |
Last Updated: 5 January 2017
Government Response to Law Commission Report on
The Public’s Right to Know: Review of the Official Information
Legislation
Presented to the House of Representatives
4 February 2013
Government Response to Law Commission Report on
The Public’s Right to Know: Review of the Official Information
Legislation
Introduction
The government has carefully considered the Law Commission’s Report The
Public’s Right to Know: Review of the Official Information Legislation (NZLC
125) (the Report) tabled in the House of Representatives on 25 July 2012. The
government responds to the Report in accordance with
Cabinet Office circular CO
(09) 1.
The government wishes to thank the Law Commission for the comprehensive and
detailed report, which is a major contribution to this
important
area.
Law Commission Report
The Law Commission notes in its report that:
“our initial impressions were that the Official Information Act 1982
and Local Government Official Information and Meetings
Act 1987 are
central to New Zealand’s constitutional arrangements and that their
underlying principles are sound and that
they are fundamentally working well.
These have been confirmed as the review has progressed... However, the
Commission has
reached the view that much could be done to improve the operation
and efficiency of the official information legislation, through
a mix of
legislative and non-legislative means.” (para 1.33 - 1.34, pg
25).
The Law Commission’s major recommendations include:
A new Act – redrafting the Official
Information Act 1982 (OIA) completely and potentially combining the
OIA and
the Local Government Official Information and Meetings Act 1987 (LGOIMA)
New Ombudsmen guidelines – including case
reports, commentary and comprehensive guidance
Statutory creation of a new oversight office –
establishing a high-level government leadership role for official
information
Proactive release – agencies to take
reasonable steps to make information available to the public
Extending the OIA – to include the
administration of the courts, the Offices of Parliament, Parliamentary Counsel
Office, Office of the Clerk and Parliamentary Service, and the Speaker
New commercial protections – including
competitive positions, financial interests and relationship with the public
sector
Notifying third parties – a duty to notify parties prior to release of official information (this relates to both commercial protections and privacy).
Response
The government recognises that the Official Information Act 1982 (OIA) is an
Act of constitutional importance that provides the necessary
checks and balances
to ensure New Zealanders can participate effectively in government and the
democratic process. The Local Government
Official Information and Meetings Act
1987 (LGOIMA) fulfils a similar role for local government.
The official information legislation is designed to promote accountable
governance through transparency and balanced freedom of information
about public
sector actions and decisions. The government supports these aims and has
carefully considered the Law Commission’s
detailed report and
recommendations.
Having considered the Law Commission’s findings, the current fiscal
environment and the range of other urgent government priorities,
the government
response is focused on priority recommendations rather than on major reform of
the official information legislation.
The Law Commission has identified a range of measures to improve the workings
of both Acts. This response targets the major recommendations
of the Law
Commission’s Report. Due to the range of other urgent legislative
priorities currently being undertaken, the government
is not in a position to
undertake a full reform of the OIA or LGOIMA at this time. Recommendations for
legislative amendment to
the OIA that have been identified by the government as
a priority will be progressed in the context of other relevant work programmes
and form part of the following response:
The Law Commission recommends improved education and
guidance, including: improving the current Ombudsmen’s guidelines,
creating a case notes directory, and creating an analytical commentary to
accompany the case notes. The Ombudsmen have already
made significant progress
in planning to implement these recommendations. The government supports the work
that the Ombudsmen are
undertaking to progress the Law Commission
recommendations regarding guidance.
The Law Commission recommends extending the OIA to the Offices of Parliament, Parliamentary Counsel Office, the Office of the Clerk and Parliamentary Service, and the Speaker of the House. The government does not agree with the Law Commission’s recommendation and supports the status quo. New Zealand has an open Parliament by international standards and Parliament currently makes a great deal of information available. Parliament has processes for developing rules around access and use of information and this is more likely to achieve the desired balance between access to information and the proper functioning of Parliament. This approach is consistent with the approaches taken in the Australian and Canadian federal parliaments and the US Congress. The Law Commission recommended that the OIA be extended to include administrative and financial information of the Offices of Parliament (excluding any audit,
assurance work, inquiry or investigation by them). Given the proposed
exclusion of the substantive aspects of the work undertaken
by the Offices of
Parliament, the existing scrutiny provided through the Parliamentary estimates
and financial review processes is
considered appropriate. This scrutiny is
publically accessible and provides transparency in the work and spending of the
Offices
of Parliament.
The Law Commission recommends extending
the OIA to the administrative functions of the courts. This would
include
information about expenditure, resources and statistical information about court
cases. Not included in any potential
extension would be any
information about specific court cases, judicial communications, or information
about judges’ performance
and functions. The Law Commission consulted
extensively with the judiciary to achieve broad agreement as to the substance of
this
amendment. The government agrees that the administrative functions
of the courts should be covered by the OIA and intends
to progress this
recommendation as part of courts-related policy work in the context of the
current review of the Judicature Act
1908.
The Law Commission recommends that new commercial
protections be provided where material prejudice to competitive positions
or
financial interests could result, and to clarify how the legislation applies to
the commercially sensitive information of companies
in commercial relationships
or interacting with the public sector. The government considers these
recommendations are an important
issue for business and intends to progress work
in this area.
The Law Commission recommends the statutory creation
of a new oversight office. The Office of the Ombudsman currently
provides
specific training and education to agencies subject to the Act, as well as
publicly available information and guidance.
The government considers that the
oversight provided by the Ombudsmen is effective, including responsibility for
complaints and
guidance, and that government departments and agencies should
continue to look to the Office of the Ombudsman for guidance.
The Law Commission recommends that
consideration be given to combining the OIA and LGOIMA into one Act. The
government
does not consider that work to consider combining the two Acts should
be progressed. The Law Commission notes that the arguments
are ‘finely
balanced’.
A number of the Law Commission’s recommendations relate to the relationship with the Privacy Act 1993. Most of these do not recommend major legislative change, but improved guidance or clarifying legislative amendment may be appropriate. These recommendations for legislative amendment to the OIA will be progressed in the context of the review of the Privacy Act 1993.
The Law Commission makes a number of recommendations to clarify existing provisions and to make minor or technical legislative changes. The government will assess these recommendations for inclusion in appropriate legislative vehicles (such as the Statutes Amendment Bill) as they become available.
While major legislative reform of the official information legislation will not be progressed at this time, the government will keep the operation of the official information legislation under review and consider whether it will progress any of the remaining recommendations, as competing priorities allow.
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URL: http://www.nzlii.org/nz/other/lawreform/NZLCGovResp/2013/125.html