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APPENDIX B

Sections of the Official Information Act 1982 discussed in the report

PART I PURPOSES AND CRITERIA

4 Purposes

The purposes of this Act are, consistently with the principle of the Executive Government’s responsibility to Parliament,

(a) To increase progressively the availability of official information to the people of New Zealand in order

(i) To enable their more effective participation in the making and administration of laws and policies; and

(ii) To promote the accountability of Ministers of the Crown and officials,

and thereby to enhance respect for the law and to promote the good government of New Zealand:

(b) To provide for proper access by each person to official information relating to that person:

(c) To protect official information to the extent consistent with the public interest and the preservation of personal privacy.

5 Principle of availability

The question whether any official information is to be made available, where that question arises under this Act, shall be determined, except where this Act otherwise expressly requires, in accordance with the purposes of this Act and the principle that the information shall be made available unless there is good reason for withholding it.

6 Conclusive reasons for withholding official information

Good reason for withholding official information exists, for the purpose of section 5 of this Act, if the making available of that information would be likely

(a) To prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or

(b) To prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by

(i) The government of any other country or any agency of such a government; or

(ii) Any international organisation; or

(c) To prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or

(d) To endanger the safety of any person; or

(e) To damage seriously the economy of New Zealand by disclosing prematurely decisions to change or continue Government economic or financial policies relating to

(i) Exchange rates or the control of overseas exchange transactions:

(ii) The regulation of banking or credit:

(iii) Taxation:

(iv) The stability, control, and adjustment of prices of goods and services, rents, and other costs, and rates of wages, salaries, and other incomes:

(v) The borrowing of money by the Government of New Zealand:

(vi) The entering into of overseas trade agreements.

7 Special reasons for withholding official information related to the Cook Islands, Tokelau, or Niue, or the Ross Dependency

Good reason for withholding information exists, for the purpose of section 5 of this Act, if the making available of the information would be likely

(a) To prejudice the security or defence of

(i) The self-governing state of the Cook Islands; or

(ii) The self-governing state of Niue; or

(iii) Tokelau; or

(iv) The Ross Dependency; or

(b) To prejudice relations between any of the governments of

(i) New Zealand;

(ii) The self-governing state of the Cook Islands;

(iii) The self-governing state of Niue; or

(c) To prejudice the international relations of the Governments of

(i) The self-governing state of the Cook Islands; or

(ii) The self-governing state of Niue.

9 Other reasons for withholding official information

(1) Where this section applies, good reason for withholding official information exists, for the purpose of section 5 of this Act, unless, in the circumstances of the particular case, the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available.

(2) Subject to sections 6, 7, . . . 10, and 18 of this Act, this section applies if, and only if, the withholding of the information is necessary to

(a) Protect the privacy of natural persons, including that of deceased natural persons; or

(b) Protect information where the making available of the information

(i) Would disclose a trade secret; or

(ii) Would be likely unreasonably to prejudice the commercial position of the person who supplied or who is the subject of the information; or

(ba) Protect information which is subject to an obligation of confidence or which any person has been or could be compelled to provide under the authority of any enactment, where the making available of the information

(i) Would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied; or

(ii) Would be likely otherwise to damage the public interest; or

(c) Avoid prejudice to measures protecting the health or safety of members of the public; or

(d) Avoid prejudice to the substantial economic interests of New Zealand; or

(e) Avoid prejudice to measures that prevent or mitigate material loss to members of the public; or

(f) Maintain the constitutional conventions for the time being which protect

(i) The confidentiality of communications by or with the Sovereign or her representative;

(ii) Collective and individual ministerial responsibility;

(iii) The political neutrality of officials;

(iv) The confidentiality of advice tendered by Ministers of the Crown and officials; or

(g) Maintain the effective conduct of public affairs through

(i) the free and frank expression of opinions by or between or to Ministers of the Crown or members of an organisation or officers and employees of any Department or organisation in the course of their duty; or

(ii) The protection of such Ministers, members of organisations, officers, and employees from improper pressure or harassment; or

(h) Maintain legal professional privilege; or

(i) Enable a Minister of the Crown or any Department or organisation holding the information to carry out, without prejudice or disadvantage, commercial activities; or

(j) Enable a Minister of the Crown or any Department or organisation holding the information to carry on, without prejudice or disadvantage, negotiations (including commercial and industrial negotiations); or

(k) Prevent the disclosure or use of official information for improper gain or improper advantage.

10 Information concerning existence of certain information

Where a request under this Act relates to information to which section 6 or section 7 or section 9(2)(b) of this Act applies, or would, if it existed, apply, the Department or Minister of the Crown or organisation dealing with the request may, if it or he is satisfied that the interest protected by section 6 or section 7 or section 9(2)(b) of this Act would be likely to be prejudiced by the disclosure of the existence or non-existence of such information, give notice in writing to the applicant that it or he neither confirms nor denies the existence or non-existence of that information.

12 Requests

(1) Any person, being

(a) A New Zealand citizen; or

(b) A permanent resident of New Zealand; or

(c) A person who is in New Zealand; or

(d) A body corporate which is incorporated in New Zealand; or

(e) A body corporate which is incorporated outside New Zealand but which has a place of business in New Zealand,

may request a Department or Minister of the Crown or organisation to make available to him or it any specified official information.

(1A) Notwithstanding subsection (1) of this section, a request made, on or after the date of commencement of this subsection, by or on behalf of a natural person for access to any personal information which is about that person shall be deemed to be a request made pursuant to subclause (1)(b) of principle 6 of the Privacy Act 1993, and shall be dealt with accordingly, and nothing in this Part or in Part V of this Act shall apply in relation to any such request.

(2) The official information requested shall be specified with due particularity in the request.

(3) If the person making the request asks that his request be treated as urgent, he shall give his reasons for seeking the information urgently.

13 Assistance

It is the duty of every Department, Minister of the Crown, and organisation to give reasonable assistance to a person, who

(a) Wishes to make a request in accordance with section 12 of this Act; or

(b) In making a request under section 12 of this Act, has not made that request in accordance with that section; or

(c) Has not made his request to the appropriate Department or Minister of the Crown or organisation or local authority,

to make a request in a manner that is in accordance with that section or to direct his request to the appropriate Department or Minister of the Crown or organisation or local authority.

14 Transfer of requests

Where

(a) A request in accordance with section 12 of this Act is made to a Department or Minister of the Crown or organisation; and

(b) The information to which the request relates

(i) Is not held by the Department or Minister of the Crown or organisation but is believed by the person dealing with the request to be held by another Department or Minister of the Crown or organisation, or by a local authority; or

(ii) Is believed by the person dealing with the request to be more closely connected with the functions of another Department or Minister of the Crown or organisation, or of a local authority,

the Department or Minister of the Crown or organisation to which the request is made shall promptly, and in any case not later than 10 working days after the day on which the request is received, transfer the request to the other Department or Minister of the Crown or organisation, or to that local authority, and inform the person making the request accordingly.

15 Decisions on requests

(1) Subject to this Act, the Department or Minister of the Crown or organisation to whom a request is made in accordance with section 12 or is transferred in accordance with section 14 of this Act or section 12 of the Local Government Official Information and Meetings Act 1987 shall, as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the request is received by that Department or Minister of the Crown or organisation,

(a) Decide whether the request is to be granted and, if it is to be granted, in what manner and for what charge (if any); and

(b) Give or post to the person who made the request notice of the decision on the request.

(1A) Subject to section 24 of this Act, every Department or Minister of the Crown or organisation (including an organisation whose activities are funded in whole or in part by another person) may charge for the supply of official information under this Act.

(2) Any charge fixed shall be reasonable and regard may be had to the cost of the labour and materials involved in making the information available to and to any costs incurred pursuant to a request of the applicant to make the information available urgently.

(3) The Department or Minister of the Crown or organisation may require that the whole or part of any charge be paid in advance.

(4) Where a request in accordance with section 12 of this Act is made or transferred to a Department, the decision on that request shall be made by the chief executive of that Department or an officer or employee of that Department authorised by that chief executive unless that request is transferred in accordance with section 14 of this Act to another Department or to a Minister of the Crown or to an organisation or to a local authority.

(5) Nothing in subsection (4) of this section prevents the chief executive of a Department or any officer or employee of a Department from consulting a Minister of the Crown or any other person in relation to the decision that the chief executive or officer or employee proposes to make on any request made to the Department in accordance with section 12 of this Act or transferred to the Department in accordance with section 14 of this Act or section 12 of the Local Government Official Information and Meetings Act 1987.

15A Extension of time limits

(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 14 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.

(2) Any extension under subsection (1) of this section shall be for a reasonable period of time having regard to the circumstances.

(3) The extension shall be effected by giving or posting notice of the extension to the person who made the request within 20 working days after the day on which the request is received.

(4) The notice effecting the extension shall

(a) Specify the period of the extension; and

(b) Give the reasons for the extension; and

(c) State that the person who made the request for the official information has the right, under section 28(3) of this Act, to make a complaint to an Ombudsman about the extension; and

(d) Contain such other information as is necessary.

16 Documents

(1) Where the information requested by any person is comprised in a document, that information may be made available in one or more of the following ways:

(a) By giving the person a reasonable opportunity to inspect the document; or

(b) By providing the person with a copy of the document; or

(c) In the case of a document that is an article or thing from which sounds or visual images are capable of being reproduced, by making arrangements for the person to hear or view those sounds or visual images; or

(d) In the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, by providing the person with a written transcript of the words recorded or contained in the document; or

(e) By giving an excerpt or summary of the contents; or

(f) By furnishing oral information about its contents.

(2) Subject to section 17 of this Act, the Department or Minister of the Crown or organisation shall make the information available in the way preferred by the person requesting it unless to do so would

(a) Impair efficient administration; or

(b) Be contrary to any legal duty of the Department or Minister of the Crown or organisation in respect of the document; or

(c) Prejudice the interests protected by section 6 or section 7 . . . or section 9 of this Act and (in the case of the interests protected by section 9 of this Act) there is no countervailing public interest.

(3) Where the information is not provided in the way preferred by the person requesting it, the Department or Minister of the Crown or organisation shall, subject to section 10 of this Act, give to that person

(a) The reason for not providing the information in that way; and

(b) If that person so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 6 or section 7 . . . or section 9 of this Act and (in the case of the interests protected by section 9 of this Act) there is no countervailing public interest.

18 Refusal of requests

A request made in accordance with section 12 of this Act may be refused only for one or more of the following reasons, namely:

(a) That, by virtue of section 6 or section 7 . . . or section 9 of this Act, there is good reason for withholding the information:

(b) That, by virtue of section 10 of this Act, the Department or Minister of the Crown or organisation does not confirm or deny the existence or non-existence of the information requested:

(c) That the making available of the information requested would

(i) Be contrary to the provisions of a specified enactment; or

(ii) Constitute contempt of Court or of the House of Representatives:

(d) That the information requested is or will soon be publicly available:

(e) That the document alleged to contain the information requested does not exist or cannot be found:

(f) That the information requested cannot be made available without substantial collation or research:

(g) That the information requested is not held by the Department or Minister of the Crown or organisation and the person dealing with the request has no grounds for believing that the information is either

(i) Held by another Department or Minister of the Crown or organisation or a local authority; or

(ii) Connected more closely with the functions of another Department or Minister of the Crown or organisation or of a local authority:

(h) That the request is frivolous or vexatious or that the information requested is trivial.

24 Right of access to personal information

(1) Subject to this Part of this Act, to sections 10 and 52 of this Act, and to subsections (2) and (5) of this section, every person has a right to and shall, on request, be given . . .  access to any personal information which

(a) Is about that person; and

(b) Is held in such a way that it can readily be retrieved.

(2) The right conferred by subsection (1) of this section may be exercised only by a person who is

(a) A body corporate which is incorporated in New Zealand; or

(b) A body corporate which is incorporated outside New Zealand but which has a place of business in New Zealand.

(3) Sections 12(3), 13 to 17, and 19 of this Act shall apply, with all necessary modifications, to a request made under subsection (1) of this section.

(3A) Where any person is given access to personal information under this section, that person shall be advised of that person’s right, under section 26 of this Act, to request the correction of that information.

(4) Nothing in this section requires, or imposes any responsibility on, any Department or Minister of the Crown or organisation to compile files or data banks of personal information.

(5) Nothing in this section gives any person the right to be given access to any personal information about him which is held by the Public Trustee or the Maori Trustee

(a) In his capacity as a trustee within the meaning of the Trustee Act 1956; or

(b) In any other fiduciary capacity.

27 Reasons for refusal of requests for personal information

(1) A Department or Minister of the Crown or organisation may refuse to disclose any personal information requested under section 24(1) of this Act if, and only if,

(a) The disclosure of the information would be likely to prejudice any of the interests protected by section 6 (a) to (d) or section 7 or section 9(2)(b) of this Act and (in the case of the interests protected by section 9(2)(b) of this Act) there is no countervailing public interest; or

(b) The disclosure of the information would involve the unwarranted disclosure of the affairs of another person or of a deceased person; or

(c) The disclosure of the information or of information identifying the person who supplied it, being evaluative material, would breach an express or implied promise

(i) Which was made to the person who supplied the information; and

(ii) Which was to the effect that the information or the identity of the person who supplied it or both would be held in confidence; or

(d)–(f) Repealed by s 7(1) of the Official Information Amendment Act 1993.

(g) The disclosure of the information would breach legal professional privilege; or

(h) The request is frivolous or vexatious, or the information requested is trivial.

(1A) No reasons other than one or more of the reasons set out in subsection (1) of this section justifies a refusal to disclose any personal information requested under section 24(1) of this Act.

(2) For the purposes of subsection (1)(c) of this section, the term “evaluative material” means evaluative or opinion material compiled solely

(a) For the purpose of determining the suitability, eligibility, or qualifications of the person to whom the material relates for the awarding of contracts, awards, or other benefits; or

(b) For the purpose of determining whether any contract, award, or benefit should be continued, modified, or cancelled; or

(c) For the purpose of deciding whether to insure any person or property or to continue or renew the insurance of any person or property.

28 Functions of Ombudsmen

(1) It shall be a function of the Ombudsmen to investigate and review any decision by which a Department or Minister of the Crown or organisation

(a) Refuses to make official information available to any person in response to a request made by that person in accordance with section 12 of this Act; or

(b) Decides, in accordance with section 16 or section 17 of this Act, in what manner or, in accordance with section 15 of this Act, for what charge a request made in accordance with section 12 of this Act is to be granted; or

(c) Imposes conditions on the use, communication, or publication of information made available pursuant to a request made in accordance with section 12 of this Act; or

(d) Gives a notice under section 10 of this Act.

(2) It shall be a function of the Ombudsmen to investigate and review any decision by which the chief executive of a Department or an officer or an employee of a Department authorised by its chief executive or a Minister of the Crown or an organisation extends any time limit under section 15A of this Act.

(3) An investigation and review under subsection (1) or subsection (2) of this section may be made by an Ombudsman only on complaint made to an Ombudsman in writing.

(4) If, in relation to any request made in accordance with section 12 of this Act, any Department or Minister of the Crown or organisation fails within the time limit fixed by section 15(1) of this Act (or, where that time limit has been extended under this Act, within that time limit as so extended) to comply with paragraph (a) or paragraph (b) of section 15(1) of this Act, that failure shall be deemed, for the purposes of subsection (1) of this section, to be a refusal to make available the official information to which the request relates.

(5) Undue delay in making official information available in response to a request for that information, shall be deemed, for the purposes of subsection (1) of this section, to be a refusal to make that information available.

31 Disclosure of certain information not to be recommended

Where

(a) The Prime Minister certifies that the making available of any information would be likely to prejudice

(i) The security or defence of New Zealand or the international relations of the Government of New Zealand; or

(ii) Any interest protected by section 7 of this Act; or

(b) The Attorney-General certifies that the making available of any information would be likely to prejudice the prevention, investigation, or detection of offences

an Ombudsman shall not recommend that the information be made available, but may recommend that the making available of the information be given further consideration by the appropriate Department or Minister of the Crown or organisation.

32 Recommendations made to Department or Minister of the Crown or organisation

(1) Where a recommendation is made under section 30(1) of this Act to a Department or to an organisation named in Part I or Part II of the First Schedule to the Ombudsmen Act 1975,

(a) A public duty to observe that recommendation shall be imposed on that Department or organisation from the commencement of the twenty-first working day after the day on which that recommendation is made to the Department or organisation unless, before that day, the Governor-General, by Order in Council, otherwise directs; and

(b) The public duty imposed by paragraph (a) of this subsection shall be imposed not only on the Department or organisation itself but also on

(i) The members of the organisation; and

(ii) Every officer and employee of that Department or organisation to whom that recommendation is applicable; and

(iii) Every body within that Department or organisation to whom that recommendation is applicable; and

(iv) Every statutory officer to whom that recommendation is applicable.

(2) Where a recommendation is made under section 30(1) of this Act to a Minister of the Crown, a public duty to observe that recommendation shall be imposed on that Minster from the commencement of the twenty-first working day after the day on which that recommendation is made to that Minister unless, before that day, the Governor-General, by Order in Council, otherwise directs.

(3) Where a recommendation is made under section 30(1) of this Act to an organisation named in the First Schedule to this Act,

(a) A public duty to observe that recommendation shall be imposed on that organisation from the commencement of the twenty-first working day after the day on which that recommendation is made to that organisation unless, before that day, the Governor-General, by Order in Council, otherwise directs; and

(b) The public duty imposed by paragraph (a) of this subsection shall be imposed not only on the organisation itself but also on

(i) Its governing body (if any); and

(ii) Its members; and

(iii) Every officer, employee, and body within that organisation to whom that recommendation is applicable; and

(iv) Every statutory officer to whom that recommendation is applicable.

(4) As soon as practicable after an Order in Council is made under this section, the Minister who recommended the making of that Order in Council shall give a copy of that Order in Council to the Ombudsman who made the recommendation.

(5) Nothing in this section

(a) Limits section 8 of the Judicature Amendment Act 1972; or

(b) Prevents effect being given to any interim order made under section 8 of the Judicature Amendment Act 1972 or to any declaration contained in any such interim order.

32A Requirements in relation to Order in Council

(1) Every Order in Council made under section 32 of this Act shall be published in the Gazette and laid before the House of Representatives as soon as practicable after it is made.

(2) Every Order in Council made under section 32 of this Act shall set out the reasons for which it is made and the grounds in support of those reasons.

(3) An Order in Council made under section 32 of this Act in relation to a recommendation made under section 30(1) of this Act may be made for all or any of the reasons for the decision reviewed by the Ombudsman (being reasons that were before the Ombudsman when the recommendation was made) but for no other reasons.

32B Right of review

(1) Where

(a) A recommendation is made under section 30(1) of this Act in respect of a request made under section 12 of this Act; and

(b) An Order in Council is made under section 32 of this Act in respect of that recommendation,

the person who made that request may apply to the High Court for a review of the making of that Order in Council.

(2) An application under subsection (1) of this section may be made on the ground that the Order in Council was beyond the powers conferred by sections 32 and 32A of this Act or was otherwise wrong in law.

(3) On an application under subsection (1) of this section, the High Court may

(a) Make an order confirming that the Order in Council was validly made; or

(b) Make an order declaring that the making of the Order in Council was beyond the powers conferred by sections 32 and 32A of this Act or was otherwise wrong in law.

(4) Unless the High Court is satisfied that an application brought under subsection (1) of this section has not been reasonably or properly brought, it shall, in determining the application and irrespective of the result of the application, order that the costs of the applicant on a solicitor and client basis shall be paid by the Crown, and such costs shall be paid out of money appropriated by Parliament for the purpose.

32C Appeals

Any party to an application under section 32B of this Act who is dissatisfied with any final or interlocutory order in respect of the application may appeal to the Court of Appeal; and section 66 of the Judicature Act 1908 shall apply to any such appeal.

33 Complainant to be informed of result of investigation

The Ombudsman who investigates a complaint made for the purposes of section 28(3) of this Act shall inform the complainant, in such manner and at such time as he thinks proper, of the result of the investigation.

34 Restriction on application for review

Where any person makes a request under this Act that official information be made available to him and a decision to which section 28(1) or section 28(2) of this Act applies is made in relation to that request, that person

(a) Shall not make an application under section 4(1) of the Judicature Amendment Act 1972 for the review of that decision; and

(b) Shall not commence any proceedings in which that decision is sought to be challenged, quashed, or called in question in any Court,

unless a complaint made by that person in respect of that decision has first been determined under this Part of this Act.