NZLII [Home] [Databases] [WorldLII] [Search] [Feedback]

New Zealand Law Commission

You are here:  NZLII >> Databases >> New Zealand Law Commission >> Report >> R40 >> 2 Large and broadly defined requests

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]


2 Large and broadly defined requests

OVERVIEW

56 THE LAW COMMISSION was asked to examine the adequacy of ss 12(2) and 18(f) of the Official Information Act, with particular reference to broadly defined requests and requests for large amounts of information.

57 Under s 12(2) a person seeking official information is to specify it “with due particularity”. In the words of the Danks Committee, any documents being sought should be “described in detail sufficient to enable experienced employees in departments or agencies familiar with the subject matter of the request to identify the record” in question (Supplementary Report, para 4.34). That obligation upon the requester is complemented by the duty on an agency under s 13(b) to give the requester reasonable assistance to help ensure compliance with s 12.58 As the Danks Committee said, the relevant officer might help in reformulating the request; the actual identification of the information sought might require further communication between the applicant and the officer (Supplementary Report, para 4.34).

58 Even if a request does comply with the requirement of due particularity, s 18(f) permits the agency to refuse the request if the information requested cannot be made available without “substantial collation or research”. The Danks Committee explained this ground for refusing a request as being:

that a person requesting information is not entitled to ask a department to assemble or analyse data for him. As the Ontario Commission says: (Vol 2, p 234) “the right to information does not embrace a right to require the Government to conduct research on matters of interest to citizens in order to provide answers to their questions”. (Supplementary Report, para 4.38)

59 It is implicit in s 18(f) that some collation and research may be required of an agency. Nevertheless, Ministers, departments and organisations continue to express concern about the number of broadly defined and time consuming requests, and in particular about these requests taking priority over urgent responsibilities.59 This chapter contains recommendations which provide a mechanism for refining broad requests. It recommends the enactment of a new provision requiring agencies to consider imposing a charge, or extending the time limit for responding to a request, as alternatives to refusing a request which involves substantial collation and research.60 Finally, it recommends express statutory provisions to deal with successive and repeat requests.

“DUE PARTICULARITY”

60 The Ombudsmen have said that the requirement of due particularity does not preclude a person asking whether an agency holds any information on a specified topic nor from requesting access to all information held in relation to that topic. Their 1995 Annual Report states that “a request meets the test of ‘due particularity’ if the information covered by the request can be identified by the recipient”.61 It follows that:

Lack of particularity cannot, therefore, be used as a means for refusing a request which is for a large amount of specified information. Where such a request is made, the legislation provides appropriate procedures for dealing with it, including provision for a charge to be made, extensions of the time limit, and refusal in an appropriate case where the information requested cannot be made available without substantial collation or research.62

61 Against that view are to be balanced the limits which are implied by the words “due” and “particularity”. The Danks Committee did not envisage individuals having the right to make vague or sweeping requests (Supplementary Report, 69).

62 The Ombudsmen have issued guidelines dealing with the administrative provisions of the Act (see appendix D). Those guidelines give advice to requesters as well as to agencies. They aim at having both parties consider not just the substantive prejudice that might result from the release of the information, but also administrative issues: what specifically has been requested; whether the agency holds the information; and whether it can be retrieved without the administrative difficulties which the Act takes into account. The guidelines suggest ways in which requesters can also facilitate the process, with an eye of course to their own advantage. The government guidelines on charging (considered in paras 119–120 and set out in appendix G) contain parallel advice:

63 The final three unfortunate consequences of defining a request too broadly emphasise the value of requesters also familiarising themselves with guides to the availability of information.63

64 It is important to stress that the failure to frame a request with due particularity is not a ground for refusing the request. The Ombudsmen’s view as to the obligations upon an agency faced with such a request was expressed in a case concerning a request to the Minister for State-Owned Enterprises. The request was for all documents prepared for the Minister since October 1990 regarding Treaty of Waitangi claims in general, and in particular those in relation to Railways Corporation land.64 The Minister’s office had advised that the major difficulty with the request was identifying with sufficient particularity the documents requested, due to the large volume of material relating to Treaty claims, although certain information was also likely to be protected under s 9(2). The Ombudsmen noted that where a requester was unable to identify the information at issue, “the appropriate course is to give reasonable assistance to the requester to identify the information sought”. This had not been done, and it was wrong to refuse the request before the required information had been identified. Later discussions with the requester and officials clarified the information sought; a fresh request was made, and the Ombudsmen’s involvement ceased.

65 The Law Commission considers that the difficulties arising under the due particularity requirement of s 12(2) can usually be handled through the administrative measures mentioned in the preceding two paragraphs and the Ombudsmen’s Practice Guidelines which appear in appendix D. Section 12(2) itself should not be amended. However, our emphasis on administrative measures does lead us to propose:

66 In its present form the Act imposes no obligation on the requester to specify the purpose of the request. Neither does it expressly allow a requester to do so. The Act makes no express reference whatsoever to the “purpose” of the request. An agency may implicitly take the purpose of a request into account, however, in refusing a request under s 18(a) because there is good reason for withholding the information by virtue of ss 6, 7 or 9. For example, s 9(2)(a) allows withholding to “protect the privacy of natural persons”, and s 9(2)(ba) allows protection of information so as not to disclose a trade secret or unreasonably prejudice the commercial position of the supplier or subject of the information: either provision may apply (or not) according to the apparent purpose of the request.

67 Although a requester may currently specify the purpose of the request, the Act does nothing to encourage this practice so that information that might otherwise properly be withheld is released.

68 A potential risk of expressly allowing a requester to specify a purpose for seeking official information is that where a requester does not disclose a purpose, the agency may try to use that as a ground for refusing the request – either expressly or tacitly – or for imposing unjustifiable conditions on the use of information. The virtue of the present system is that this reaction is generally not open to the agency.

69 Accordingly, if the Act is amended to expressly allow a requester to specify the purpose, the legislation must make clear that a requester who chooses not to do so is not in a worse position than before the amendment. The language we have used in our proposed s 12(4) (see para 73) would send a message to agencies that they may not require a requester to specify a purpose for which he or she seeks the information, or refuse a request because no purpose is specified. In short, the amendment is intended to have a one way operation only – to facilitate the flow of additional information, but not to reduce the present flow.

70 We also emphasise that a specified purpose is irrelevant to the grounds for refusing requests in s 18(b)–(h). These grounds are not based on there being good reason for withholding the information. In particular, a specified purpose cannot be relevant to whether any of the “administrative reasons” in s 18(d)–(f), or our proposed s 18A,65 apply. Section 24(1) of Australia’s Freedom of Information Act 1982 (Cth) takes the same approach (see paras 90–91).

71 A stated purpose for seeking the information might anticipate an obvious question the agency may have of the requester, and facilitate the processing of the request. It would make it easier for agencies to impose conditions on the use and publication of information which may otherwise be properly withheld. In turn, it could help agencies overcome criticisms that information is too often withheld on a mistaken assumption, for example, that the requester will make released information publicly available. For example, the family of a deceased officer in the armed forces might request information from the officer’s file to find out how he or she died. An agency in these circumstances might be willing to release certain information to family members but not to the general public, and so might impose conditions on the use and publication of the information. We would anticipate requesters choosing to specify the purpose of the request if they thought it to their advantage, as in the example just mentioned.

72 Finally, we note that the Ombudsmen’s jurisdiction under the Act includes the power to investigate not only refusals, but also the form in which information is released and conditions imposed on its use: s 28(1)(b) and (c). This would help to prevent agencies from imposing, in reliance upon a purpose specified by the requester, unjustified conditions on the use of information.

73 We recommend that s 12(2) remain unchanged, but that a further subsection be added to section 12 as follows:

(4) The person making the request may, but is under no circumstances obliged to, specify the purpose for which the information is sought, and a department, Minister of the Crown or organisation shall have regard to this purpose in determining whether to make the information available, in what form and on what conditions, but may not rely on the failure to specify a purpose as a ground for refusing the request.

A wider duty to assist?

74 Section 13 is not drafted particularly clearly. It imposes a duty to give reasonable assistance “to make a request in a manner that is in accordance with” s 12 or to direct the request to the appropriate agency. But in practice, compliance with s 12 is likely to mean only that the request is stated with due particularity (s 12(2)) and specifies any reasons for urgent treatment (s 12(3)). Why is the duty to assist no wider? A request may still comply with s 12 and yet, for example, be refused because it involves substantial collation and research. The relevant officer may know that the information requested is not held in the particular manner specified in the request – but is recorded in another manner. Section 13 imposes no obligation to consult, or consider consulting, with the requester in these circumstances.

75 Section 16(1) of the Act indicates that information comprised in a document may be made available in a number of specified ways, including by:

Any one of these methods may be acceptable to the requester, even though the information was requested in a different form. Usually, communication between the agency and the requester can reveal this.

76 A scenario which has been raised is where a requester is given a printout of the information requested, but then requests a copy of the information on computer disk. Is the agency under an obligation to provide the information in this form? Information on disk falls within the definition of “document” in s 2, as “any information . . . stored by means of any . . . computer”, and is therefore within the scope of s 16(1). Section 16(2) requires the agency to make the information available in the way preferred by the requester unless to do so would impair efficient administration, be contrary to a legal duty in respect of the document, or prejudice the interests protected by ss 6 or 7, or s 9 where there is no countervailing public interest.

77 But in this scenario the information has already been made available to the requester, so does s 16(2) still apply? On a strict construction of the Act, no, because the agency has already responded to the request in its original terms. Nevertheless, acting within the spirit of the Act suggests the agency could provide the information on disk.66

78 The outcome of an Ombudsman’s investigation may often be that the information is released in a form other than that requested, but which is acceptable to both parties. The Act ought expressly to encourage and facilitate such an outcome in the first instance.

79 Moreover, the Act implicitly allows the release of information subject to conditions, although there is no express power to impose conditions.67 The Ombudsmen generally regard conditions as justified only where the information might otherwise properly be withheld under the Act. Communication with the requester again allows an agency to determine whether the release of information on certain conditions is likely to be acceptable to the requester.

80 In practice many or even most agencies seek to clarify difficult requests through dialogue with the requester. But some do not, or seek to shelter behind the technical withholding grounds in s 18(e) and (f), when a dialogue would allow the request to be refined to specify information which the agency would have no objection, on substantive grounds, to releasing.

81 One way of prompting all agencies to adopt the dialogue with requesters which we encourage, and which was suggested by one respondent to a draft of this report, would be to impose an obligation upon agencies to assist in reformulating requests which are likely to be refused under s 18(e) or (f) or to be the subject of extensive charges. In Australia s 24 of the Freedom of Information Act 1982 (Cth) allows agencies to refuse requests on the grounds that the work involved would substantially and unreasonably divert the agency’s resources from its other operations. The Australian Law Reform Commission (ALRC) recently recommended that s 24 should be reformulated to emphasise the importance of agencies’ consulting with applicants about their requests. There is currently an obligation to consult with the applicant in s 24(6) before refusing a request under s 24(1) – see para 91. The ALRC considered that reformulation of the provision to place greater stress on the consultation requirement, while “relatively minor . . . would have a symbolic and educative effect”.68

82 We favour an express obligation upon agencies to consider consulting with a requester before relying on s 18(e) or s 18A which we propose replace s 18(f) (see para 108). As a matter of practice agencies should also consult the requester if they will release the information requested at a substantial charge. We accept that it would be impracticable, however, to impose a requirement to this effect in the Act.

83 Accordingly, the Law Commission recommends that section 13 be redrafted as follows:

13 Assistance
Every Department, Minister of the Crown and organisation shall owe the following duties to a person who has made or wishes to make a request under this Act:
(a) To assist that person to specify the requested official information with due particularity;
(b) To assist that person by directing his or her request to the appropriate Department, Minister of the Crown, organisation or local authority;
(c) Where that person asks for his or her request to be treated as urgent, to assist him or her to specify the reasons for seeking the information urgently, if those reasons are not already specified in the request;
(d) Where a request for information is likely to be refused under section 18(e) or section 18A of this Act, to consider consulting with that person and, if asked by that person, assist him or her in reformulating the request;
(e) Where the Department, Minister of the Crown, organisation or local authority wishes to release information which is the subject of a request in a form other than that specified in the request, or on conditions, to consult with that person before releasing the information.

“SUBSTANTIAL COLLATION OR RESEARCH”

84 Section 18(f) permits (but does not require) agencies to withhold information if it “cannot be made available without substantial collation or research”. The Ombudsmen’s guidelines (see appendix D) mention five relevant factors:

85 Once again the Ombudsmen stress the other administrative provisions of the Act, especially those in s 16 which enable the information to be made available in another form, if the form requested would impair efficient administration.

86 Several agencies take the view that s 18(f) covers both an initial process of determining what to release, if anything, and a later process of physically locating the information and releasing it once the initial determination has been made. The Ombudsmen take a different view on the premise (with which we agree) that those two processes in fact occur in reverse order. They consider that on receipt of a request, agencies should ask themselves whether they can identify what information is being sought (s 12(2)), whether they hold it (s 18(e) or (g)) and, if so, whether they can extract and compile the information (s 18(f)). Once agencies have established that there are no administrative problems in processing a request, the next step is to consider whether there is any reason to refuse the request in part or in whole because of the likely result of disclosure of the information. The Ombudsmen consider that s 18(f) relates logically only to the first stage of assembling the information; if s 18(f) does not apply, then the question of whether the information needs to be withheld can properly be considered.

87 The principle of availability is fundamental. Closely connected to it is the obligation upon an agency to respond to requests in accordance with the Act. But that is not the agency’s only function. As the Danks Committee indicated, staff resources, especially at the senior level where the essential decisions will have to be made, and financial considerations have to be weighed (Supplementary Report, para 4.40). The significance of financial and resource issues has been heightened by the disciplines of the Public Finance Act 1989: there is now a much greater emphasis on the precise identification of how public money is spent. The Danks Committee added that balancing the need for making information available with the cost of doing so does not amount to “an argument of ‘administrative convenience’; still less ought it to be used as an excuse for withholding information that is awkward or embarrassing”.

88 An early case illustrates the balance. The request was for information about several aspects of applications by public servants for leave without pay to take up paid employment in the private sector: the general criteria, the numbers considered, and the success rate and the duration of the leave granted. The State Services Commission responded to the first aspect of the request, essentially by stating that each case was decided on its merits, approval was rare, and was subject to stringent conditions, but referring to s 18(f) it refused to supply the information about actual cases. The Chief Ombudsman accepted that the refusal was justified. The State Services Commission had argued that the search would be a very extensive one, would probably not be complete, and would probably not produce a firmer answer to the question concerning general criteria than that already given. Moreover, on the matter of the substantive grounds for refusal, to provide the details of the one successful case discovered would identify the person concerned and would involve unwarranted disclosure of that person’s affairs.69

89 This case illustrates how the power conferred by s 18(f) can be and is used. It also suggests that, in some cases, it is difficult or even artificial to try to distinguish a process of identifying what information falls within the scope of the request, from one of locating or collating the relevant information.

Australia’s Freedom of Information Act

90 Provisions like s 18(f) are to be found in other freedom of information legislation. As noted above, in Australia, s 24(1) of the Freedom of Information Act70 (FOI Act) allows a Minister or agency to refuse a request without processing it if satisfied that processing it would substantially and unreasonably interfere with the performance of the Minister’s functions or “substantially and unreasonably divert the resources of the agency from its other operations”.71 The Act makes it explicit that the Minister and agency can have regard to the resources that would have to be used in:

91 No regard is to be had to any charge for processing the request or to any reasons the requester may have for making the request. Section 24(6) contains the important control that s 24(1) cannot be used to refuse access to documents unless the Minister or agency gives notice of that intention; it gives the applicant a reasonable opportunity to consult with an appropriate officer with a view to making the request in a form which would remove the ground for refusal. The Law Commission supports a similar approach, as is apparent from our previous recommendation in para 83.72 It would be one control on any temptation to abuse such a ground. Appropriate guidelines to ensure fair application of such a power would provide another control.

The scope and wording of s 18(f)

92 In considering s 18(f) the first issue is whether it covers the process of determining what information falls within the scope of the request. The Ombudsmen’s guidelines (see appendix D) do not expressly address the point. The expression “collation and research”73 is to be interpreted in accordance with its purpose: Acts Interpretation Act 1924, s 5(j).74 We consider that the actual process of identifying what information comes within the scope of the request is necessarily covered by the word “research”; “collation” must bear its standard dictionary definition of bringing together material, especially for comparison. In other cases only collation of the relevant material itself will allow the information falling within the scope of the request to be identified. The Ombudsmen’s guidelines should be updated to state expressly that s 18(f) (or the new s 18A we propose in its place – see para 108) covers the process of determining what information falls within the scope of the request.

93 The second issue is whether the wording of s 18(f) requires amendment. The process of identifying the relevant information can be a large and difficult one affecting an agency’s other operations. It can involve extensive consultation with those who provided relevant information. Section 9(1) of the Official Information Amendment Act 1987 inserted a new s 15A, which expressly recognises that those features of the process might justify an extension of time for handling the request:

(1) Where a request in accordance with section 12 of this Act is made or transferred to a Department or Minister of the Crown or organisation, the chief executive of that Department or an officer or employee of that Department authorised by that chief executive or that Minister of the Crown or that organisation may extend the time limit set out in section 13 or section 15(1) of this Act in respect of the request if
(a) the request is for a large quantity of official information or necessitates a search through a large quantity of information and meeting the original time limit would unreasonably interfere with the operations of the Department or the Minister of the Crown or the organisation; or
(b) consultations necessary to make a decision on the request are such that a proper response to the request cannot reasonably be made within the original time limit.

94 When that power of extension and the grounds were introduced along with the 20 working-day time limit, no change was made to the wording of the power of refusal in s 18(f). The two provisions are, however, closely linked: if other operations of the agency might require postponing the process of considering and responding to a voluminous request, they could logically, in extreme cases at least, require that that process not be undertaken at all or at least not be completed. In practice, an agency which has received a large or broadly defined request will face a choice between responding to it on time, extending the time limit for responding under s 15A(1), or refusing the request under s 18(f). Or the agency may extend the time limit and then refuse the request under s 18(f).

95 While the processes described in s 15A(1)(a) are accommodated within the reference in s 18(f) to “substantial collation and research”, the process of consultation described in s 15A(1)(b) is not. Should s 18(f) mention (substantial) “consultations necessary to make a decision on the request” as a further ground for refusing a request? We do not think so.

96 Any widening of the Act’s grounds for refusing requests must be approached cautiously in light of the purpose in s 4(a) to increase progressively the availability of official information. Section 15A(1)(b) is wide enough to include consultation concerning the withholding grounds which might apply to a request, for example, discussions with persons whose privacy might be affected under s 9(2)(a), or with a legal adviser about whether any of the withholding provisions might apply. Section 18(f), by contrast, is an administrative reason for refusing a request in that it relates to the accessibility of information itself, rather than its contents. We do not consider it appropriate to allow an agency to refuse a request because of the time or difficulty in making a substantive decision about whether it can withhold information. As we note in the following chapter, an agency is not allowed to charge for the time spent in deciding whether or not to release information, although it may charge for the process of identifying or locating that information. The same distinction should be made in the context of refusing requests.

97 There are two further points concerning the wording of s 18(f). First, it does not refer to an “unreasonable interference with the operations” of an agency, as does s 15A(1)(a). We do not think this point is crucial: as the Ombudsmen’s guidelines suggest, the underlying purpose of s 18(f) must allow these factors to be taken into account. The Ombudsmen themselves have developed a consistent approach to the interpretation of s 18(f), and the meaning of “substantial” in particular. Secondly, s 18(f) is silent about its relationship to s 15A(1), and vice versa, leaving open to argument when an agency should extend the time limit and whether it can simply rely on s 18(f) without considering the need for an extension.

98 While the second point also could be dealt with by considering the overall scheme of the Act (and no doubt would be if tested in court), the Law Commission considers it is best resolved through a new provision, s 18A, in place of s 18(f). A draft provision appears at the end of this chapter. That provision retains the phrase “cannot be made available without substantial collation and research”, except it reverses the order of “collation” and “research” in recognition of the order in which these processes usually occur. The Ombudsmen’s existing guidelines will continue to provide useful guidance as to the meaning of these words.

99 A new provision in place of s 18(f) is desirable for two further reasons. First, it would be easier under a new provision than as part of s 18(f) to impose on agencies an express requirement to consider fixing a charge for the information or extending the time limit for responding, before refusing a request under the “substantial collation and research” ground.

100 Agencies familiar with the scheme of the Act should already regard s 18(f) as a provision of last resort, which must be considered in light of the obligation in s 13 to help requesters with the “due particularity” requirement, and the Act’s charging and extension provisions. We considered the option of simply emphasising, in this report, the relationship between these provisions without any amendment to the Act. But that may not be sufficient to change the approach of certain agencies which resort too readily to s 18(f) to refuse requests. Our proposed s 18A requires agencies to consider the ways the Act provides for dealing with large and broadly defined requests other than refusing them. We earlier recommended (at para 83) that agencies be required to consider consulting with a requester and, if asked, assist in reformulating the request, before refusing a request under s 18(f) or our proposed s 18A. As a matter of practice, agencies should also consult before releasing information at a substantial charge. The exercise of a redefined power of refusal under s 18A would remain subject to complaint to the Ombudsmen.

101 If our proposed s 18A is not enacted, we consider that agencies, having regard to the scheme of the Act and the true construction of ss 12, 13, 15A and 18(f), should as a matter of practice only refuse a request under s 18(f) after considering whether charging for the information or extending the time limit might allow the request to be granted.

102 The second reason for a new provision in place of s 18(f) is to deal with the cumulative effect of a series of requests, to which we now turn.

Cumulative requests

103 A survey of legislation in other jurisdictions raises the possibility of a separate provision dealing directly with numerous or repeated requests.75 Section 18(f) currently assumes a single request of an onerous nature. The Act does not expressly allow refusal of a large number of requests from the same requester, none of which on its own would warrant refusal under section 18(f), but which taken together involve “substantial collation or research”. We consider there should be a discretion allowing agencies to treat numerous requests about similar subject matter, received simultaneously or in short succession from the same person, as a single request for the purposes of refusing a request under the new s 18A which we propose.

104 The government’s charging guidelines (see appendix G, para 2.2) allow repeated requests from the same source in respect of a common subject made over intervals of up to 8 weeks, to be aggregated for charging purposes. We are not aware of widespread abuse of this provision: our proposed s 18A(3) would allow agencies to adopt a similar approach to refusing requests involving substantial research and collation. We do not see the proposed provision as allowing agencies to impose a “quota” on requests from regular requesters. The requirements that the requests concern similar subject matter and be received simultaneously or in short succession, focus the provision on the practice of dividing large requests into smaller parts, and prevent the number of requests, of itself, being a ground for refusal.

105 We note that there is already the power to refuse frivolous and vexatious requests under s 18(h) of the Act. The ALRC proposed for discussion an equivalent provision in Commonwealth legislation, observing that the power to refuse requests causing an “unreasonable diversion of resources” would not, for example, tackle repeated requests for information which the requester already knew was available for sale.76 It later rejected the idea, however, in favour of a narrower provision dealing with repeated requests (see para 107).77

106 In some Canadian provinces there are more far reaching provisions which enable the head of a public body to request authorisation from the Information and Privacy Commissioner to disregard requests which, “because of their repetitious or systematic nature, would unreasonably interfere with the operations of a public body”.78

107 We consider that the Act should deal with repeated or numerous requests directly rather than through s 18(h) which, while a necessary backstop provision in cases of last resort, can often aggravate a dispute between a requester and an agency if used to refuse a request. We propose that an agency be able to refuse a repeat request for information to which the applicant has already been refused access, providing there are no reasonable grounds for making it again. A withholding ground in these terms was recommended by the ALRC in its recent report.79 We have not had the benefit of others’ views regarding such a provision as it was not raised in our draft report. Nevertheless, a provision in these terms would in our view be unlikely to be opposed by those we have consulted.

108 Accordingly the Law Commission recommends:

(i) That the person making the request has already been refused access to the information requested, provided that no reasonable grounds exist for that person to request the information again.
18A Requests involving substantial research or collation
(1) A request made in accordance with section 12 of this Act may be refused if the information requested cannot be made available without substantial research or collation.
(2) In deciding whether to refuse a request under subsection (1) of this section, the Department, Minister of the Crown, or organisation shall consider whether fixing a charge under section 15 of this Act, or extending the time limit under section 15A of this Act, would enable the request to be granted.
(3) For the purposes of refusing a request under subsection (1) of this section, a Department, Minister of the Crown, or organisation may treat numerous requests about similar subject matter, received simultaneously or in short succession from the same person, as a single request.


NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/other/nzlc/report/R40/R40-2.html