New Zealand Law Commission
|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
New Zealand Law Commission |
|
[Database Search] [Name Search] [Previous] [Next] [Download] [Help]
150 THE LAW COMMISSION was asked to report on the appropriateness of the time limits in ss 15, 15A and 29A of the Act. Sections 15 and 15A regulate the time within which agencies are to answer requests for official information: we noted in the executive summary that non-compliance with the time limits is an issue of major importance. Section 29A governs the later stage of agencies’ responses to requirements for information by an Ombudsman considering a complaint. It is more convenient to consider s 29A in chapter 9, which examines the responsibilities of decision-makers towards the Ombudsmen.
151 The Act deals with the following matters relating to timing, each of which we consider:
152 The actions (or inaction) of agencies in relation to time limits can be the subject of a complaint to the Ombudsmen. Section 28(4) of the Official Information Act deems failure to comply with the 20 working-day time limit, or an extended time limit, to be a refusal of the request; s 28(5) treats undue delay in making information available in response to a request in the same way. Section 28(2) allows the Ombudsmen to investigate an agency’s extension of the time limit under s 15A of the Act. Section 28 does not, however, expressly include complaints about transfer of requests within the Ombudsmen’s jurisdiction. We return to this issue in paras 186–189.
153 Complaints to the Ombudsmen about non-compliance with the time limits are numerous. The annual reports of the Ombudsmen over the last 3 years show that “delays/deemed refusals” are easily the second largest category of complaints after refusals.100
154 As originally enacted, the Act contained no specific time limits. It simply required actions to be taken “promptly” and “as soon as reasonably practicable”.101 From the outset the Ombudsmen commented that delay could undermine the effect of the Act. Growing concern about delays, both at the initial stage and at the stage of complaint to the Ombudsmen, led in 1987 to the introduction of the time limit and extension provisions in ss 15, 15A and 29A.
155 The basic obligation upon agencies to make decisions on requests as soon as reasonably practicable reflects the concern of the Danks Committee, the Ombudsmen, Parliamentarians and others that a specific time limit might come to be seen as the norm.102 For many public sector agencies this seems to have become so, as the Ombudsmen pointed out in 1995:
There is a common misconception among public sector agencies that 20 working days is the norm within which to respond to a request for official information irrespective of the circumstances of the request and any urgency sought by the requester. That view is wrong under the Act. The essential obligation is to respond “as soon as reasonably practicable”. The 20 working-day time limit (subject to extension in certain defined circumstances under s 15A [s.14]) sets a statutory maximum on the period of time that can reasonably be said to be “as soon as reasonably practicable” in each case.103 (original emphasis)
156 Earlier, the Ombudsmen recorded that in the related area of agency responses to their own requests for information for review purposes, 32% were answered on the 19th working day or later.104 This year the Chief Ombudsman again expressed concern about the time agencies take to respond to requests in the course of an Ombudsman’s investigation.105
157 The Law Commission adds its voice to those statements of concern. Agencies have a basic obligation to make a decision on a request, and provide information to the Ombudsmen in the course of an investigation, as soon as reasonably practicable. That should be emphasised in all material concerning the Act including in-house information and information prepared by, among others, the State Services Commission and the Ministry of Justice. The 20 working-day period is an outside limit, not the rule, subject to the confined possibility of extension considered later in this chapter.
158 We consider that the basic obligation upon agencies should remain to deal with requests as soon as reasonably practicable. This requirement remains paramount notwithstanding the existence of a 20 working-day time limit.
159 The use of standard time limits can draw attention away from the appropriate response to urgent cases. Section 12(3) enables a requester to specify urgency in a request and the reasons for the urgency. The complaint provisions confirm that the intervention of the Ombudsmen might be sought well before 20 working days have expired: s 28(5). The Act gives agencies no express guidance, however, on how to take urgency into account.
160 In one case, which reflects a common scenario for an urgent request, the Chief Ombudsman was asked on 30 January 1985 for a report being prepared by a department for a meeting of a statutory board on 12 February. Part of the argument was that the report would be publicly available after its consideration by the board (s 18(d)). Since the board was planning to make a decision on the report on 12 February, later release would not support the purpose of effective public participation in the elaboration of policy (set out in s 4(a)(i)). Moreover the s 18(d) reason was administrative and practical, not substantive. Accordingly the Chief Ombudsman recommended that the paper be released on 11 February and that was effected by the department: (1986) 7 OCN 230.
161 But the Ombudsmen have also emphasised that in respect of urgent requests the relevant obligation upon agencies is to respond as soon as reasonably practicable even if this takes longer than requested:
Similarly, some users of the Act have wrongly assumed that a person making an urgent request can require a public sector agency to respond within a time frame fixed by that requester. While it will often assist a public sector agency to know at the outset the urgent time frame within which a requester prefers to receive the information requested, the sole obligation remains to respond “as soon as reasonably practicable”. Whether responding “as soon as reasonably practicable” will meet a requester’s specific time frame will depend on the circumstances of the particular case.106 (original emphasis)
162 The Ombudsmen have also issued guidelines for responding to urgent requests. While these emphasise that each case must be assessed on its merits, relevant factors in determining what is reasonably practicable in the context of urgent requests are:
163 There is some suggestion that the 20 working-day time limit for responding to requests is now generally too short, in the light of the increased workloads experienced by many agencies. The time limits are alleged to distort work flows by requiring agencies to give priority to requests over other work which they see as having greater priority. Should the limits be relaxed, and the statutory criteria changed to take better account of work flows?
164 The Commission is also mindful, on the other hand, of frustration among requesters over the time taken by agencies to process requests. It acknowledges criticisms that some agencies cynically use the 20 working-day rule, extension and transfer provisions, and finally recourse to the Ombudsmen, to delay the release of information until it is of no or little use to the requester.108 As much as ever, information is “a perishable commodity”:109 stale information is often useless to the requester. Submissions to the Law Commission from user groups framed the issue in terms of reducing time limits.
165 The opinion of the Minister in charge of the 1987 measures which introduced the time limits was that in all normal circumstances 20 working days would be sufficient time and was a reasonable period.110 Foremost in the debate over time limits must be the principle of availability and the emphasis on the utility of timely information for participation and accountability.111 Time limits in other jurisdictions are also relevant:
166 The Ombudsmen’s practice in handling complaints about delay has been, in the first instance, to make informal inquiries about the reasons for the delay. If a response to a request is forthcoming the complainant is notified of that fact. No further steps are taken by the Ombudsmen unless further complaint of delay is received. If the matter becomes the subject of review and further information is requested by the Ombudsmen’s Office, an investigating officer contacts the agency to remind it of the time limit for responding to requests (s 29A) and its power to request an extension if necessary. A bring-up procedure is in place to effect this (see para 337).
167 While there are significant delays in responding to official information requests, there are competing arguments whether reducing time limits will improve matters. Underlying non-compliance with time limits are both the ability and willingness of agencies to handle requests more quickly. There are numerous factors which affect the ability to respond to a request quickly, including an agency’s staff and other resources; familiarity with the matters which form the subject of the request; information technology and document management systems; competing work priorities; and, in the case of some agencies, the large number of other official information requests to be processed. Willingness to process requests promptly, on the other hand, relates more to the organisational culture of the relevant agency, knowledge and understanding of the Act, and whether the purposes of the Act are endorsed, particularly by senior management. Reducing time limits will not necessarily change these factors.
168 It may also be argued that shorter time limits will simply increase the incidence of non-compliance, and the number of complaints to the Ombudsmen about delay. Or they may prompt agencies to use the extension power in s 15A more often.
169 Nevertheless, the Law Commission considers that shortening the time limits would prompt some agencies to reconsider their approach to handling official information requests and, in particular, to take more seriously the obligation to respond as soon as reasonably practicable. Some of the arguments against reducing time limits appear to us to reject change because it will be unable to eliminate the problem of delay in responding to requests. This is of course correct – but we consider shortened time limits would help lessen the problem. Some causes of delay might be addressed through the practices and legislative amendments we recommend in relation to voluminous requests (see chapter 2).
170 Shorter time limits are justified for another reason. Since the 20 working-day limit was set, advances in information technology and records management, and in particular the storage of documents on-line rather than in manual filing systems, have reduced the time which is needed to make some forms of official information available. There is force in this argument, even if some agencies have yet to complete the technological advances which would allow documents to be retrieved more readily. Effective information management policies, allowing new technology to be used to best effect, are vital if technology is to reduce time spent in processing requests.
171 The Australian Law Reform Commission concluded, in relation to the time limit for processing requests under the Freedom of Information Act 1982 (Cth):
The Review agrees that it is reasonable to expect agencies to take advantage of technological developments to improve their FOI administration. However, it considers that it would be premature to reduce the 30 day period immediately because some agencies do not yet have the facilities to store all documents electronically. Instead, it recommends that in three years the time limit should be reduced to 14 days. 113
172 For the same reasons, we consider that inconsistent implementation of information technology across the public sector, with attendant improvements in the ability to process official information requests, should only delay, rather than rule out, a reduction of the time limits. We consider that the State Services Commission could usefully monitor the progress of public sector agencies in implementing information technology and information management policies, with a view to reconsidering whether this might allow the time limits to be reduced in the future. However, as noted in chapter 1, there is a need for similar supervision to be exercised over the wider state sector including Crown entities and SOEs.114
173 Accordingly, the Law Commission recommends that the government review the 20 working-day time limit under s 15(1) in 3 years, with a view to reducing it to 15 working days. This would recognise that much information is now, or should be, more readily retrievable than when the 20 working-day limit was set, because of developments in information technology and information management. In the meantime, the government should adopt a 3-year strategy aimed at improving the ability of all agencies, through information technology and better information management, to respond to requests under the Act.
174 Not all requests can be answered in the prescribed period. A power of extension will be required for some large or difficult requests. How legislation expresses such a power presents several questions:
175 The Commission considers that the answers to the first and last questions should be as at present. That is to say, the agency which is handling the request should make the decision and give notice to the requester of the extension, the reasons for it, and the right to complain to an Ombudsman: s 15A(4). The Ombudsmen should also continue to handle complaints about extensions under s 28(2).
176 The generally, but not unanimously, accepted interpretation of s 15A is that the time for response can be extended only once – that action must be taken within 20 working days of receipt of the request: s 15A(3). The Commission agrees that the power should be limited in that way. The point has been made that something unforeseen might arise in the course of the extension requiring a further extension. But there is no evidence of this being a problem in practice. The Commission does not therefore propose any change to allow multiple extensions of the time limit for responding to requests.
177 The statutory grounds for extension under s 15A(1) are that:
178 The extension is to be for a “reasonable period of time having regard to the circumstances”: s 15A(2). The importance of the reference to consultation is emphasised by the discussion of that process in the Release of Official Information: Guidelines for Co-ordination issued by the State Services Commission (set out in appendix H). The guidelines stress the importance of a consistent and considered government response where requests relate to more than one department. One element in the guidelines relevant to the timing of a response is the suggested minimum of one week’s notice of the department’s intention to release notwithstanding the contrary opinion of those affected (para B1).
179 In their comments on consultation, the Ombudsmen have also emphasised the need for regard to be had to first, the real need for consultation, secondly, how quickly that need is established following receipt of the request, and thirdly, how quickly consultation can be completed. They consider that if the request is attended to promptly, it should be possible to undertake any necessary consultation within the 20 working-day limit. They also reinforce in this context the importance of clarifying at the outset exactly what information is requested through ss 12(2) and 13 of the Act.
180 Where the information relates to a third party, particularly where that third party has a vested interest in the information being withheld, there is no express statutory duty to consult the affected third party prior to release, as there is for instance in Canada and Australia. In fact, according to the Minister of Justice, the select committee when addressing this issue in 1986–1987 rejected that approach as both time-consuming and expensive. The Minister considered the system of informal consultation appeared to be working well, and that the case for change had not been made out.115 We return to that issue at paras 206–212.
181 The only change to s 15A which we propose is an additional ground for extension. Section 29A, regulating the extension of time for responses to the Ombudsmen’s requirements for information, sets out the two grounds from s 15A(1), and an additional ground:
(c) The complexity of the issues raised by the requirement are such that the requirement cannot reasonably be complied with within the original time limit.
182 The initial request for information may also of course present complex issues, quite distinct from the present statutory grounds relating to large amounts of information or the need for consultations. Consider for instance some of the issues arising from the requirements of effective government (chapter 6). Such complex matters might sometimes involve consultation, and that ground might accordingly be properly available for extension. But the Commission suggests that complexity should also be available as a distinct ground for extending the time limit. This should help encourage the proper consideration of requests at the outset.
183 Accordingly we recommend that complexity of the issues raised by the request should be added to the grounds for an extension of time under s 15A(1).
184 The provisions dealing with transfer of requests in s 14 of the Act fall outside the terms of reference we were given by the Minister of Justice. Accordingly we have not consulted widely in relation to s 14. One aspect of the section which is worthy of note, however, is that the time limit for transferring a request, 10 working days, is half the time limit for making a final decision on the request under s 15. Thus, if an agency delays considering an official information request until late in the 20 working-day period, it will automatically breach s 14 if it finds that the request should in fact be transferred to another agency.
185 This point has been used to argue in favour of a reduction of the time limit in s 15 to 10 working days. Equally though, it could be argued that the time limit under s 14 should be revised upwards to meet the s 15 time limit. From the requester’s point of view this would be unsatisfactory: delays caused by transferring requests are already a considerable source of frustration. Accordingly we do not propose any change to the time limit in s 14, but we do emphasise once again the importance of promptly considering all requests, not least so as to ensure that any transfer of the request can be made within time.
186 We mentioned in para 152 that s 28 does not expressly include complaints about transfers within the Ombudsmen’s jurisdiction, in contrast to other aspects of an agency’s handling of a request. There is no apparent reason for that exception. If the agency is subject to the Ombudsmen Act, the complaint could be handled under s 13 of that Act as a complaint relating to a matter of administration, but there is no reason to introduce that complication. Moreover, not all bodies which are subject to the Official Information Act are also subject to the Ombudsmen Act.
187 We think it desirable that complaints may be made about transfers, so that unreasonable conduct may be considered by the Ombudsmen who should be able, if necessary, to direct that the matter be resolved by a particular agency or by the Ombudsmen themselves.
188 It is noteworthy that s 35 of the Official Information Act provides for a general complaint jurisdiction for decisions taken under the Act in respect of personal information.116 We consider that s 28 should be amended to allow the Ombudsmen to review a decision to transfer a request under s 14, or a failure to comply with the time limits in that section. An amendment to s 30(1)(a) is also required so that the Ombudsmen can make an appropriate recommendation.
189 The Law Commission recommends that:
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/nzlc/report/R40/R40-4.html