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APPENDIX D

Office of the Ombudsman Practice Guidelines No 1

Practice Guidelines No. 1 (Revised edition No. 2 – July 1994 – These guidelines replace the revised edition issued in May 1993)

OFFICIAL INFORMATION ACT 1982 and LOCAL GOVERNMENT OFFICIAL INFORMATION & MEETINGS ACT 1987

APPLICATION OF ADMINISTRATIVE PROVISIONS

1. Introduction

1.1 The following guidelines are designed to assist both holders of official information and requesters of such information. They are based on the experience of the Office in conducting investigations and reviews under both Acts over the past few years, and are designed to highlight the administrative provisions in both Acts for dealing with requests, and the interrelationship between those provisions and the substantive reasons for withholding official information. Whilst the tendency has been to concentrate on the prejudice which might result from the release of information, the first requirement is to clearly identify what specifically has been requested, whether the information at issue is held, and, if so, whether it can be retrieved without the administrative difficulties which the Act takes into account. These guidelines should not detract from the need to consider each case on its merits, but are designed to help the consideration process.

1.2 The sections referred to are those in the Official Information Act, with the equivalent provisions in the Local Government Official Information and Meetings Act in square brackets.

2. Requests

2.1 Section 12 – [s.10]

“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 specific 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.²¹²
(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.”

2.2 Under s.12 [s.10] “any person”, as defined in subs.(1) of that section, “may request a department or Minister of the Crown or organisation to make available to him or it any specified official information.”

2.3 Subsection (1A) was inserted into s.12 as a consequence of the enactment of the Privacy Act 1993. It clarifies that requests by or on behalf of a natural person for personal information about that person have to be considered under the Privacy Act not the Official Information Act. However, where a person requests in his or her own right personal information about another person, the request falls for consideration under the Official Information Act.²¹³

2.4 Section 12(2) [s.10(2)] requires that “official information requested shall be specified with due particularity in the request.” Thus the recipient of a request must first be able to identify the information requested. For example:

If the request is for all information held relating to the Treaty of Waitangi, does this mean all the information which specifically addresses Treaty issues, or does it mean all information in which Treaty issues are mentioned?

2.5 Section 13 – [s.11]

“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 the section or to direct his request to the appropriate Department or Minister of the Crown or organisation [or local authority].”

2.6 If the information requested cannot be identified, s.13 [s.11] of the Act imposes a duty on the recipient of the request to give reasonable assistance to the requester to make the request in a manner that is in accordance with s.12 [s.10] of the Act. Reasonable assistance requires more than stating that the request is not specific enough. In many cases requesters simply do not have sufficient knowledge of the precise nature of the information they are seeking, or the form in which it is or may be held, to be more specific. The fact that a request is for a large amount of information does not of itself mean that the request lacks due particularity.

2.7 The term “fishing expedition” now seems to have received general recognition in the vocabulary of those concerned with making decisions on requests for official information. It should be clearly understood that if a request is to be adjudged as a “fishing expedition” in its common parlance, this term is not recognised in the Act as a withholding reason and that the only defence is to process the request on the basis of not meeting the test of due particularity which is commented on in the paragraphs above.

2.8 If the requester is unable to clarify what information is wanted in such a way as to enable the recipient of the request to identify the information being sought, the request has not been made in accordance with s.12 [s.10] and the Act does not apply.

2.9 Once the request has been clarified and the recipient has identified the information sought, the administrative issues which need to be considered are:

2.9.1 Transfer of requests

Section 14 – [s.12]
“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 elates—
(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) It 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.”

* Where the recipient receives a request made in accordance with s.12 [s.10] of the Act, and the information requested is not held by the recipient and is believed to be held by some other Department, Minister or organisation, the request should be transferred within 10 working days to that Department, Minister or organisation (s.14(b)(i))[s.12(b)(i)]. Where, the information is held by the recipient, and the request is believed to be more closely connected with the functions of another Department, Minister or organisation, consideration should be given to whether the request should be transferred. Again, it should be transferred within 10 working days of receipt (s.14(b)(ii)[s.12(b)(ii)].

2.9.2 Refusal of requests

“18.[17.]
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:

Section 18(d) – [s.17(d)]

“(d) That the information requested is or will soon be publicly available.”

* This provision is not stated to be a “good reason for withholding information”, but it is simply authority for refusing a request made under s.12. Given that the principle of availability set out in s.5 requires that “information shall be made available unless there is good reason for withholding it”, and s.18(d) is not a “good reason”, its use as a ground for refusal of a request should not undermine any of the purposes of the Act which are set out in s.4. The provision is seen as one which may be used, for example, to refuse to make available the text of a Ministerial speech before it has been delivered or to refuse a request for information contained in a readily available publication. However, it should not be used, eg, to delay release of information intended to be incorporated in other material which, although to be made public at a later date, may still require the making of other policy decisions. If such a refusal has the effect of preventing effective participation in the making or administration of laws or policies where the Act provides no good reason for withholding the information, it could be seen as inconsistent with the stated purposes of the Act. Grounds not in accordance with the perceived purpose of the provision do not provide a basis for refusal of a request in terms of s.18(d). Thus the incorporation of existing documentary information in some future publication is not considered to bring s.18(d) into play because s.16(2) requires such information to be made available in the way preferred by the person requesting it unless a specified exception applies. If the requested information is held, but the text of the future publication does not yet exist, the request for the held information is to be considered on its own merits and not on the basis of s.18(d). As to what is meant by “soon” in the context of s.18(d), this is a question of fact to be determined in the circumstances of the case.

Section 18(e) – [s.17(e)]

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

* Where the request is for a document(s) which, after taking all reasonable steps, cannot be located, s.18(e) [s.17(e)] might apply.

Section 18(f) – [s.17(f)]

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

* Where meeting the request would involve substantial collation and research, in assessing whether s.18(f) [s.17(f)] might apply the following factors have been identified as being relevant:

1. The difficulty of the work involved in locating, researching or collating the information.
2. The amount of documentation to be looked at.
3. The work time involved.
4. The nature of the resources available in money, facilities and numbers and skills of personnel.
5. The effect on other operations of the diversion of resources to meet the request.

Section 18(g) – [s.17(g)]

“(g) That the information requested is not held by the Department or Minister of the Crown or organisation [by the local authority] 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 local authority]; or
(ii) Connected more closely with the functions of another Department or Minister of the Crown or organisation [or local authority].”

* If the information is not held by the recipient of the request and the recipient does not believe that the information is or may be held by some other Department, Minister or organisation, s.18(g) [s.17(g)] might apply.

2.9.3 Documents

Section 16 – [s.15]

“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) Subsection 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 the Act and (in the case of the interests protected by section 9 of this Act) there is no countervailing public interest.”

* When considering a request of this type, before deciding whether or not s.18(f) [s.17(f)] might provide good reason for refusing it, consideration should be given to whether the information requested could be made available in a different form from that requested. If the information could be so made available, s.16 [s.15] might apply on the grounds that the actual process of making the information available in the form requested “would impair efficient administration”. If the information could not be made available in a different form, s. 18(f) [s.17(f)] might apply.

2.9.4 Time limits

Section 15(1) – [s.13(1)]

“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 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.”

* Decisions on requests must therefore be made and conveyed to the requester as soon as reasonably practicable, and in any event no later than 20 working days after the day on which the request is received. The 20 working days is the maximum time limit within which to respond to a request (subject to extensions in certain circumstances – see para 2.9.5 below). In this regard it should be noted that when the time limit was inserted in the Act in 1987 Parliament made it clear that the 20 working days should not be treated as the normal period within which to respond to a request, but should be the absolute maximum.

2.9.5 Extension of time limits

Section 15A – [s.14]

“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 permanent head of that Department or an officer or employee of that Department authorised by that permanent head 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 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.”

* If the request is for a large quantity of information or necessitates a search through a large quantity of information, or where consultations are necessary before a decision can be made, consideration should be given to whether it would be reasonable to extend the time limit to enable a decision to be made on release. The Act does not contemplate multiple extensions. Only one extension may be effected. Thus in extending the time limit, Departments, Ministers and organisations should set a realistic and “reasonable period of time having regard to the circumstances” within which they expect to be able to meet the request (s.15A) [s.14]. The requester must be notified within 20 working days after receipt of the request of the period of any extension, of the reason for the extension together with any other relevant information, and of the right to make a complaint to an Ombudsman about the extension.

(NB Separate procedures are provided in s.29A [s.29] for the extension of time requirements imposed by the Ombudsman).

2.9.7 Breach of time requirements

Section 28(4) & (5) [s.27(4) & (5)]

“(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.”

* If a decision on a request is not made within 20 working days, or within the extended timeframe notified, the request is deemed to have been refused and the requester has the right to ask an Ombudsman to investigate that deemed refusal.

“(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.”

* If a decision is made and the requester notified within the statutory time limit that the information will be made available, but there is then an unreasonable delay in actually supplying the information to the requester, the request is deemed to have been refused and the requester has the right to ask an Ombudsman to investigate that deemed refusal. For example, if the requester is advised within the statutory time limit that the information will be made available upon payment of a charge, once the charge has been paid, the information should be released as soon as reasonably practicable thereafter. There is not a further timeframe of 20 working days from the time the requester pays the charge.

2.9.8 Charges

Section 15(1A) & (2) – [s.13(1A) & (2)]

“(1A) Subject of 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.”

* Section 13(2) of the Local Government Official Information and Meetings Act is the equivalent provision but is worded differently. It provides :

“(2) Any charge for the supply of official information under this Act shall not exceed the prescribed amount.”
“Prescribed amount” is defined in s.2(1) of the Act as follows :
“in relation to any document or copy of any document provided pursuant to this Act, means the amount determined in accordance with regulations made under this Act.”

No regulations have been made determining the “prescribed amount.”

Subsection 3 of s.13 provides :

“(3) Where no such amount is prescribed, 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 and to any costs incurred pursuant to a request of the applicant to make the information available urgently.”

* The Ombudsmen have consistently taken the view that charges cannot be fixed for time spent deciding on whether or not or to what extent information can be made available. The charging guidelines issued by Cabinet provide a reasonable basis for assessing charges, not only by departments and organisations subject to the Official Information Act, but also by local authorities subject to the Local Government Official Information and Meetings Act. At a general level, the Ombudsmen have taken the view that charges assessed in accordance with the guidelines are reasonable. However, there may be factors in a particular case which warrant waiver of the charges or some other departure from the guidelines. The role of an Ombudsman when reviewing charges is to form a view as to whether the charge was reasonable in all the circumstances of the request.

* Where a Department, Minister or organisation decides that information requested can be made available, but that charges assessed in accordance with the Cabinet guidelines are likely to be substantial, the standard practice which an Ombudsman would expect to be followed is for the requester to be advised of the likely charges before the request is processed and invited to decide whether he or she wishes the request to proceed on this basis, or whether he or she wishes to modify the request.

3. Assistance to requesters

3.1 Having regard to the purposes of the Act and to the principle of availability of information and to the fact that there is no obligation to refuse a request, it is incumbent on the recipients of requests to take all reasonable steps to assist requesters, eg:

• By helping them to specify their requests with due particularity, for example, by clarifying the types of documents held in the area of interest to the requester, or providing file lists, indexes, etc.
• By advising requesters in advance where charges are to be levied, together with an estimate of the likely amount so that the requester can consider whether to proceed with the request or to modify it.
• Where the information is held in a different form from that requested, by advising the requester of that fact and explaining what would be involved in providing the information in the form requested so the requester can decide whether to proceed with the request or ask for the information in the form in which it is held.
• By responding promptly where a request is unclear. In this regard, the Act contemplates that a preliminary assessment of a request will be completed within 10 days (s.14 [s.12] refers). Thus, where a holder requires clarification of a request, it is reasonable to expect that to occur within a similar time frame.
• In cases where information requested cannot be located after reasonable efforts have been made to find it, although the request might be refused in terms of s.18(e) [s.17(e)], the department or organisation concerned might wish to offer to continue searching for the document, but to charge the requester for the further research. Such a charge would not be a charge in terms of s.15 [s.13] of the Act, but an administrative arrangement, if accepted by the requester, on a cost recovery basis. Such a charge would not be reviewable under the Official Information Act, but might be the subject of a complaint under the Ombudsmen Act.

4. Requesters

4.1 Requesters should endeavour to specify the scope of the information they are seeking as clearly as possible. Requests for large amounts of information are likely to result in processing delays, charges or possibly refusals on the grounds specified in s.18(f) [s.17(f)], “that the information cannot be made available without substantial collation and research.”

4.2 Requesters might find it useful as a preliminary to a request to take advantage of the provisions of Part III of the Act to find out what information a particular Department or organisation holds. The Official Information Directory, which is available through public libraries, is a useful starting point. Requests for departmental file lists may also provide a starting point to assist requesters in identifying where the information they are seeking is likely to be found.

4.3 Frequently requesters request a large amount of information because they have insufficient knowledge of the precise nature of the information they are seeking or of the form in which it may be held. In such cases, requesters may be able to clarify the issues more promptly if they provide the Department, Minister or organisation to which they have addressed their request with a contact telephone number and invite the recipient of the request to telephone them if clarification is required.