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Endnotes

^[1]These provisions require that a request specify the information with due particularity, and allow refusal of a request if the information cannot be made available without substantial collation or research.

^[2] Those grounds concern availability or imminent availability of the information to the public, the non-existence of the document in question, and substantial collation or research.

^[3]Jospin, opening address to International Statistical Institute conference, Paris, 1989, supplied by Len Cook, Government Statistician.

^[4] Sections 12_19, 24_27, and 28_34.

^[5] The definition in s 2 is extensive: to summarise, "official information" means any information "held" by departments, Ministers in their official capacity, or organisations. Thus information supplied directly by one Minister to another without the involvement of officials, is official information if held in the latter Minister's official capacity, although there may of course be reasons for withholding the information under the Act. For convenience we have generally used the word agency throughout the report to refer to the Minister, department, organisation or local authority involved.

^[6]We explore this further in chapters 1 and 3 (paras 52_55 and 121_123).

^[7]There was until the mid-1980s a tradition of governmental involvement in many aspects of life including commercial operations, transport, and utilities such as electricity and telecommunications: Taylor, "The Laws of New Zealand and Australia" in Bell and Bradley (eds) Governmental Liability: A Comparative Study (UK National Committee of Comparative Law, London, 1991).

^[8]The State-Owned Enterprises Act 1986, Crown Research Institutes Act 1992, and Health and Disability Services Act 1993 established separate bodies, substantially distinct from the Crown, with greater autonomy in the performance of their functions than their predecessors.

^[9]It no longer applies where the function has been privatised; but note the exception in s 41C of the Penal Institutions Act 1954 which provides that for the purposes of the Ombudsmen Act 1975 and the Official Information Act, every contract penal institution "shall be deemed to be part of the Department of Justice".

^[10]This has coincided with a substantial increase in the use of parliamentary questions, the administrative impact of which is similar to the use of the Official Information Act.

^[11]Under s 32 of the Act _ see chapter 10.

^[12]Statement of Coalition Government Policy, 11 December 1996, Policy Area: State Services.

^[13]See further, chapter 6.

^[14]Under the Official Information Amendment Act 1987.

^[15]Section 31 states:

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.

^[16]See ss 16(1) and (1A) of Ombudsmen Act 1975, which specify that an oral complaint should be put in writing as soon as practicable.

^[17] These are that disclosure might prejudice the security, defence, or international relations of New Zealand, or the investigation or detection of offences; involve the disclosure of the deliberations of Cabinet; or involve the disclosure of proceedings of Cabinet, or of any committee of Cabinet, relating to matters of a secret or confidential nature, and which would be injurious to the public interest.

^[18]The movement towards greater openness, which culminated in the enactment of the Official Information Act in 1982, is described in appendix C.

^[19]Committee on Official Information (hereafter the Danks Committee), Towards Open Government: General Report (1980), paras 20_21.

^[20]But note s 2(5) of the Act which provides that information held by an independent contractor engaged by an agency in its capacity as contractor, is deemed to be held by that agency for the purposes of the Act.

^[21]1990 AJHR I.22A.

^[22] Baumann, "The Official Information Act in Respect of State-Owned Enterprises", in The Official Information Act (Legal Research Foundation, Auckland, 1997), 43.

^[23]It may be presumed that Parliament views such controls as desirable, given its power to privatise SOEs and thereby free them from such controls as it sees fit (as indeed it has done, for example, with Telecom and Air New Zealand).

^[24]Office of the Ombudsman, Practice Guidelines, No 3 (1993) (see appendix F).

^[25]Donnelly, "The Official Information Act in the Corporatised World", in The Official Information Act (Legal Research Foundation, Auckland, 1997), 55_56.

^[26]See paras 4.11 and 5 of the report cited at fn 21.

^[27]Dyall and Keith, "Let the People Speak" in The April Report: Report of the Royal Commission on Social Policy, Vol III, Part I, Future Directions (Royal Commission on Social Policy, Wellington, 1988), 365, 369_379.

^[28]Law Commission, Annual Report (NZLC R32, 1994), 4_7.

^[29]Legislative Change: Guidelines on Process and Content (LAC, Report 6, rev ed, Wellington, 1991), 7.

^[30](Cabinet Office, Department of the Prime Minister and Cabinet, Wellington, August 1996), paras 4.13_4.21, 4.41_4.43, and 5.18_5.22.

^[31]Shroff, "Behind the Official Information Act: Politics, Power and Procedure", in The Official Information Act (Legal Research Foundation, Auckland, 1997), 19_20.

^[32]Shroff.

^[33]See Legislation Advisory Committee, Legislative Change: Guidelines on Process and Content (LAC, Report 6, rev ed, Wellington, 1991), para 43.

^[34]Especially s 9 (2)(g)(i) of the Act _ see chapter 6.

^[35]1995 AJHR I.18A, 33, 36.

^[36]Working under Proportional Representation: A Reference for the Public Service (State Services Commission, Wellington, 1995), 45.

^[37]This increased number of smaller parties could itself be attributed, at least partially, to the imminence of the MMP election.

^[38]Working under Proportional Representation, 29.

^[39]Belgrave, "The Official Information Act and the Policy Process", in The Official Information Act (Legal Research Foundation, Auckland, 1997), 27.

^[40]See also Voyce, "Providing Free and Frank Advice to Government: Fact or Fiction?", in (1997) 20 Public Sector, 9, 14, who notes suggestions that free and frank advice was conveyed informally and not recorded, or "destroyed on the instructions of Ministers not wanting it to be known that they were acting contrary to the advice they had received . . .".

^[41]Voyce, 31.

^[42]For example, s 9(2)(ba).

^[43]See Sixth Compendium of Case Notes of the Ombudsmen (1985), 124. (Case Notes of the Ombudsmen are hereafter referred to as OCN and are preceeded by the year and number of the compendium.) See also (1989) 9 OCN 87, and Report of the Ombudsmen for the year ended 30 June 1994, 26, 1994 AJHR A.3.

^[44](1997) 10 PRNZ 304. The decision contains a discussion of caucuses in general and their absence of any special legal status.

^[45]See appendix C of A New Zealand Guide to International Law and its Sources (NZLC R34, 1996) .

^[46]See LAC, Legislative Change: Guidelines on Process and Content (LAC, Report 6, rev ed, Wellington, 1991), appendix E; and A New Zealand Guide to International Law and its Sources.

^[47]McGee, "Parliament should have final say over treaties"; Herald, 4 June 1997, A15. See also McGee, "Treaties _ A Role for Parliament?" in (1997) 20 Public Sector, 2, and McKay, "Treaties _ A Greater Role for Parliament?" in (1997) 20 Public Sector, 6.

^[48]Nottage, "The GATT Uruguay Round 1984_1994: 10 years of Consul-

tation and Co-operation" in (1994) 3 Ministry of Foreign Affairs and Trade Record, 16.

^[49]Section 9(2)(d): Prejudice to the substantial economic interests of New Zealand; and s 6(e)(vi): Serious damage to the New Zealand economy by prematurely disclosing economic or fiscal policy decisions relating to the entering of overseas trade agreements.

^[50]Section 16 enables investigation of "matters of administration" either on complaint or on the Ombudsmen's own motion. The annual reports of the Ombudsmen also provide an opportunity to comment more generally on agencies' compliance with the Act.

^[51]See in particular s 13(1)(e) which provides for monitoring compliance with the public register privacy principles, and s 13(1)(m) which provides for inquiring into any governmental practice or procedure which might infringe on individual privacy.

^[52]Alexander, "System `wastes money'", Sunday Star Times, 11 May 1997, A9. See also Liddell, "The Official Information Act 1982 and the Legislature: A Proposal", in The Official Information Act (Legal Research Foundation, Auckland, 1997), 6, for a proposal to extend the Act's coverage to the legislature. As to the application of the Local Government Official Information and Meetings Act to local authority trading activities, see para 11.

^[53]Financial review of the 1995/1996 performance and current operations of the State Services Commission, 1997 AJHR I.20A 295, 301_302.

^[54]Open government: a review of the federal Freedom of Information Act 1982 (Australian Law Reform Commission, ALRC 77, and Administrative Review Council Report 40, 1995), para 6.4.

^[55]Policy Framework for Government Held Information (State Services Commission, Wellington, 1997). The scope of government-held information is defined as that held by the executive government, both published and unpublished, which has been collected or created at taxpayers' expense.

^[56]We refer to this paper in more detail in chapter 3.

^[57]Although consistent with s 5 of the Official Information Act, this is not to be confused with the "principle of availability" set out in that section.

^[58]One practical question in the application of that duty to assist, is whether the circumstances of the applicant should be relevant _ consider the position of a requester for instance in the Opposition research unit in Parliament who is very knowledgeable about the operation of government. The assistance might be of particular importance at the time of a general election: see the "Guidelines for release of official information prior to an election" (State Services Commission, Wellington, 1993), para 15.

^[59] These requests are sometimes referred to as "fishing expeditions", although the Ombudsmen regard this expression as inappropriate for official information requests. Unlike court processes, requests need not have a defined purpose.

^[60]See also chapter 3, which concerns charging, and chapter 4 which considers time limits including the power to extend those limits.

^[61]Report of the Ombudsmen for the year ended 30 June 1995, AJHR A.3, 34.

^[62]Report of the Ombudsmen for the year ended 30 June 1989, AJHR A.3, 32.

^[63]For instance, the Directory of Official Information published bi-annually by the Ministry of Justice. We also note that some agencies have taken specification of information they hold to a higher level of detail, eg, "What's where: a stocktake of justice sector information" which details information held on databases in the justice sector.

^[64](1993) 10(2) OCN 17.

^[65]See para 108.

^[66]An agency may prefer to download the information onto a new disk rather than supply the original disk, which might contain additional information. It would in our view be entitled to charge for the cost of the new disk and time spent downloading the information.

^[67]Section 15(1) of the Act refers to decisions as to the manner in which a request is to be granted, while s 28(1)(c) makes it a function of the Ombudsmen to review "conditions on the use, communication, or publication of information made available".

^[68]Open government: A review of the federal Freedom of Information Act (ALRC 77, 1995), para 7.14.

^[69](1984) 5 OCN 137: see also (1993) 10(2) OCN 54.

^[70]As enacted by s 15 of the 1991 Amendment Act. See also Australian Senate Standing Committee on Legal and Constitutional Affairs, Freedom of Information Act 1982: Report on the Operation and Administration of the Freedom of Information Legislation (AGPS, Canberra, 1987), 104_119.

^[71]The Australian Law Reform Commission in ALRC 77, para 7.15, decided against legislative definition of this phrase. It noted however decisions of the Administrative Appeals Tribunal indicating that the resources to be taken into account were those of the relevant line area of an agency, rather than those of the entire agency.

^[72]Our proposed s 13(d) imposes only a requirement to consider consulting with the requester where refusal is likely under ss 18(e) or 18A.

^[73]We note that the provision would be better expressed sequentially _ research usually precedes collation of material.

^[74]See also Commissioner of Police v Ombudsman [1988] 1 NZLR 385 (CA).

^[75]See, for example, Re Shewcroft and the Australian Broadcasting Corporation (1985) 7 ALN 307, 308.

^[76]Freedom of information (ALRC DP 59, 1995), para 4.19.

^[77]ALRC 77, ARC 40, para 7.18.

^[78]Freedom of Information and Protection of Privacy Act 1993 (British Columbia) s 62. See also s 53 of the Freedom of Information and Protection of Privacy Act 1994 (Alberta) which provides:

If the head of a public body asks, the Commission might authorise the public body to disregard requests under section 7(1) that, because of their repetitious or systematic nature, would unreasonably interfere with the operations of the public body or amounted to abuse of the right to access.

^[79]ALRC 77, ARC 40, para 7.18.

^[80]See ss 4 and 5.

^[81]In the Report of the Ombudsmen for the year ended 30 June 1990, AJHR A.3, 21, the Ombudsmen observed:

Departments and Ministers often see the Official Information Act as being legislation externally applied to their operations. In fact the Act prescribes a departmental or Ministerial function and must rank within the department or Ministry alongside other legislation which prescribes functions for the organisation to perform.

^[82] Department of Justice, Memorandum on charging for requests under the Official Information Act 1982 (Department of Justice, Wellington, 1992) (see appendix G).

^[83]State Services Commission, Wellington, 1997; see paras 52_54.

^[84]Note that some forms of dissemination may not see distribution costs increase with the number of customers served _ for example, the internet.

^[85]The guideline concerning anti-competitive behaviour states that the Minister responsible for an agency "should ensure that it does not cross-subsidise any contested non-core activity from its core output budget, and does not unduly withhold information, or charge more than its cost of dissemination, to protect that activity from actual or potential competition". These goals are consistent with the Official Information Act, but it should also be noted if non-core information outputs are produced by the private sector in place of government agencies, the amount of information which falls within the definition of "official information" within s 2 of the Act could be reduced.

^[86]Para 2.3.

^[87]See Office of the Ombudsman, Practice Guidelines No 1, para 2.9.8 (see appendix D).

^[88]See, for example, Report of the Ombudsmen for the year ended 30 June 1990, AJHR A.3, 20.

^[89]Section 15(1) authorises a charge only in the context of a decision to release, while s 15(1A) allows a charge only for the supply of official information under the Act.

^[90]Finnis, Natural Law and Natural Rights (Clarendon Press, Oxford, 1980), 270.

^[91]Also vital in this respect are the Ombudsmen's case notes.

^[92]The alternative would impose an excessive charge on the first requester, of which the agency and later requesters would be able to take advantage.

^[93] Moreover, a private competitor of an agency which is subject to the Act can request official information held by that agency. The Act may allow the information requested to be withheld, however, especially under the provisions concerning the protection of trade secrets, commercial positions, confidences and commercial activities, and the prevention of disclosure or use of information for improper gain or improper advantage: s 9(2)(b), (ba), (i) and (k). Parliament has confirmed that SOEs are to remain subject to the Act and to the Ombudsmen Act. With the later concurrence of the government, Parliament rejected the arguments of commercial disadvantage (see paras 5_7). The same arguments as were adopted by the select committee can be made in respect of those Crown entities (eg, Crown research institutes and Crown health enterprises) which are subject to the Act while their competitors are not.

^[94] This point was highlighted to us by the Ombudsmen in their submissions.

^[95]See Memorandum on charging for requests under the Official Information Act 1982 (Department of Justice, Wellington, 1992), paras 7.2 to 7.4 (see appendix G).

^[96]Hansard advances, 12 June 1997, 2323.

^[97]We have, however, spoken to, amongst others, the Office of the Prime Minister and the Cabinet Office regarding this issue.

^[98]The resources of Opposition research units should be sufficient to enable requests for information to be made with the care and attention required to meet the requirement of due particularity in s 12(2), and to not fall foul of s 18(f). On the government side, the practice of departments referring large numbers of "political" requests to Ministers' offices should be acknowledged by adequate staffing and resourcing of those offices to allow processing of requests within the time-frames set out in the Act.

^[99] See also the Local Government Official Information and Meetings Act 1987 s 13(1).

^[100]In the year ending 30 June 1996, 211 of the total 1165 Official Information Act complaints related to "delays/deemed refusals"; 823 complaints related to refusals: Report of the Ombudsmen for the year ended 30 June 1996, AJHR A.3, 75.

^[101]For the Danks Committee's reasons for standards rather than rules regarding time for responding to requests, see Towards Open Government: Supplementary Report, paras 4.43 to 4.48.

^[102]Towards Open Government: Supplementary Report, para 4.43, and Report of the Ombudsmen for the year ended 30 June 1995, AJHR A.3, 35 (quoting the Hon Paul East MP, 478 NZPD 7075).

^[103]Report of the Ombudsmen for the year ended 30 June 1995, AJHR A.3, 35.

^[104]Report of the Ombudsmen for the year ended 30 June 1988, AJHR A.3, 21.

^[105]Oral statement by Sir Brian Elwood at the Legal Research Foundation seminar on the Official Information Act, 25_26 February 1997.

^[106]Report of the Ombudsmen for the year ended 30 June 1995, AJHR A.3, 35.

^[107]Office of the Ombudsman, Practice Guidelines No 8 (Wellington, May 1995), para 5.1: Current approach of the Ombudsmen to the provisions of the Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987 which are relevant where the person making a request for official information asks that the request be treated as urgent.

^[108]For example, the Act has been described as being of limited use to the daily newspaper or radio journalist, if departments and others under the Act use time limits in s 15 to delay replying to a request until 20 days later, rather than respond "as soon as reasonably practicable" as required under that section _ or simply ignore the time limits: see Morrison, "The Games People Play: Journalism and the Official Information Act", in The Official Information Act (Legal Research Foundation, Auckland, 1997), 31_34.

^[109]Report of the Ombudsmen for the year ended 30 June 1990, AJHR A.3, 30.

^[110](1987) 477 NZPD 6905.

^[111]Sections 4 and 5 of the Act: see paras E5_E6.

^[112]Access to Information Act 1985 (Canada), ss 7 and 9(1); Freedom of Information and Protection of Privacy Act 1987 (Ontario), ss 26 and 27(1).

^[113]ALRC 77, ARC 40, para 7.10.

^[114]See also the report of the Government Administration Committee: Financial review of the 1995/96 performance and current operations of the State Services Commission, 1997 AJHR I.20A, para 47.

^[115](1987) 477 NZPD 6903.

^[116]Requests by individuals (as opposed to corporate personalities) relating to personal information are now dealt with under the Privacy Act 1993.

^[117]Keith, Resolution of Disputes under the Official Information Act 1982, Information Authority Occasional Paper 1 (Information Authority, Wellington, 1984), para 3.2(1).

^[118]See generally Eagles, Taggart and Liddell, Freedom of Information in New Zealand, (OUP, Auckland, 1992), 612.

^[119]The State Services Commission guidelines identify requests from the Opposition and Opposition research units, recognised interest groups, or the news media, as warranting consultation with the Minister, especially where the information is particularly sensitive: Release of Official Information: Guidelines for Co-ordination (State Services Commission, Wellington, 1992).

^[120]Cabinet Office Manual (Cabinet Office, Department of Prime Minister and Cabinet, Wellington, 1996), para 6.22. But contrast with the option suggested by the State Services Commission in The Public Service and Official Information (State Services Commission, Wellington, 1995):

Where the views of departments and Ministers after consultation are contrary (that is, one thinks the information should be released and the other does not), then it is competent for the chief executive to advise the Minister that the chief executive intends to consult with the State Services Commissioner, or seek an opinion from, say, the Crown Law Office, before responding to the request. In other words, in some special circumstances, it may be appropriate to seek an impartial opinion from a third party. Such a referral should be made by agreement without breaching the constitutional duty to follow a Minister's direction. (10_11)

^[121]Sections 32(a) and 41; and see some statutes relating to particular departments: eg, the Forests Act 1949 s 4A which confers powers of delegation upon the Secretary of Forestry.

^[122]See Office of the Ombudsman, Practice Guidelines No 3 (appendix F).

^[123] Wyatt Co (NZ) Ltd v Queenstown_Lakes District Council. That case concerned the provisions of the Local Government Official Information and Meetings Act 1987. Jeffries J stated that the applicant should have been aware that the confidentiality clause in the contract between the applicant and the council was subject to s 7 of that Act which "effectively excludes contracts on confidentiality preventing release of information" (191).

^[124]See, for example, Hon JK McLay, The Official Information Act 1982: A User's Viewpoint, NZIPA Seminar 8 October 1990.

^[125]See para E6.

^[126]Such as the convention under s 9(2)(f)(iv): (1984) 5 OCN 52, 59.

^[127]Belgrave, "The Official Information Act and the Policy Process", in The Official Information Act (Legal Research Foundation, Auckland, 1997), 26_27.

^[128]The better view is that oral information is still covered by the Act, however: the definition of "official information" in s 2 refers to "any information", and is not confined to documents. See discussion in fn164

^[129]Voyce, "Providing Free and Frank Advice to Government: Fact or Fiction?", in (1997) 20 Public Sector, 9; Shroff, "Behind the Official Information Act: Politics, Power and Procedure", in The Official Information Act (Legal Research Foundation, Auckland, 1997), 19_20.

^[130]Voyce, 14_15.

^[131]Statement of Coalition Government Policy, 11 December 1996, Policy Area: State Services: see para E17.

^[132]As proposed in particular by the State Services Commission: see paras 51_54.

^[133]Belgrave, "The Official Information Act and the Policy Process", in The Official Information Act (Legal Research Foundation, Auckland, 1997), 27.

^[134]Sometimes with associated public processes: eg Acts and Regulations Publication Act 1989; article 102 of the United Nations Charter. See also Legislation and its Interpretation: Statutory Publications Bill (NZLC R11, 1989).

^[135]Office of the Ombudsman, Practice Guidelines No 2, Current Approach of Ombudsmen to section 9(2)(f)(iv) and section 9(2)(g)(i) of the Official Information Act 1982, paras 3.4, 3.5; original emphasis (see appendix E).

^[136]See, for example, (1993) 10(2) OCN 42.

^[137]Office of the Ombudsman, Practice Guidelines No 2, para 3.6 (see appendix E).

^[138](1984) 5 OCN 52, 60. A computer search of the statute book also suggests that the phrase tendering advice is used very rarely and very specifically; the only other reference we have found is in the statement of the duties of the Chief of Defence Staff and of the Secretary for Defence in relation to Ministers. Many more provisions refer to giving advice, informing and recommending, with a much wider range of participants in the processes _ wider, that is, than officials and Ministers.

^[139]The Australian and Canadian statutes (Freedom of Information Act 1982 (Cth), Access to Information Act 1982 (Canada)) use terms such as: accounts of consultation or deliberations; memoranda presenting proposals; records reflecting communications or discussions between Ministers or on matters relating to the making of government decisions or the formulation of government policy; background explanations, analyses of problems or policy opinions submitted by a Minister for consideration by the Executive Council; and matters in the nature of or relating to opinion, advice or recommendation, obtained, prepared or recorded, or consultation or deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the government.

^[140] The references to members of organisations (added in 1987) and to their employees relate to the organisations listed in the schedules to the Ombudsmen and Official Information Acts. These are public bodies _ most are Crown entities _ which have a separate legal identity and are to be compared with the departments of state (listed in the schedule to the Ombudsmen Act).

^[141]See, for example, (1985) 6 OCN 123, (1986) 7 OCN 246, (1987) 8 OCN 82 (statutory procedure), (1989) 9 OCN 147, (1993) 10(2) OCN 33; see also State Services Commission, Guidelines for release of information prior to an election (State Services Commission, Wellington, 1993), para 17.

^[142]Report of the Ombudsmen for the year ended 30 June 1988, AJHR A.3, 22.

^[143]For example, along the lines set out in para 231.

^[144]See Danks Committee, Towards Open Government: General Report paras 47_51; Towards Open Government: Supplementary Report, 67.

^[145]Section 9(2)(ba): note that an obligation of confidence is not in itself sufficient to ensure protection; prejudice to future supply of information must also be demonstrated, and the continued supply must be in the public interest. See also Wyatt Co (NZ) Ltd v Queenstown_Lakes District Council [1991] 2 NZLR 180.

^[146]Defined as an employee in any part of the state services, but not including any chief executive or member of the senior executive service. Although compare State Sector Act s 56(4).

^[147]Who is the chief executive of the department of state known as the State Services Commission: s 4.

^[148]We might note here that the usage of the words across the statute book provides confirmation for a completely orthodox and narrow reading to be given to official in this report.

^[149]This would extend the protection of express free and frank opinions to all organisations as well as individuals.

^[150]Commissioner of Police v Ombudsman [1988] 1 NZLR 385, 391, and 411 (CA).

^[151]Some states for instance adopt the position that information which they provide to other governments should retain the protection which they would themselves provide.

^[152]See s 9(1) of the Act.

^[153]Taylor, Judicial Review: A New Zealand Perspective (Butterworths, Wellington, 1991), para 9.05.

^[154]Wright and Greengrass, Spycatcher, the candid autobiography of a senior intelligence officer (Melbourne, Heinemann, 1987).

^[155] Charter of the United Nations, article 102. See generally A New Zealand Guide to International Law and its Sources (NZLC R34, 1996), for the publication of treaties to which New Zealand is a party; and also New Zealand Consolidated Treaty List as at 31 December 1996; Part 1 (Multilateral treaties), (Ministry of Foreign Affairs and Trade, Wellington, 1997).

^[156]See, for example, McGee, McKay, above fn 47. The Law Commission is currently drafting a report on this topic.

^[157]For the text of s 31, see fn 15.

^[158]Section 20(1) states:

Where the Attorney-General certifies that the giving of any information or the answering of any question or the production of any document or paper or thing

(a) Might prejudice the security, defence, or international relations of New Zealand (including New Zealand's relations with the Government of any other country or with any international organisation), or the investigation or detection of offences; or

(b) Might involve the disclosure of the deliberations of Cabinet; or

(c) Might involve the disclosure of proceedings of Cabinet, or of any committee of Cabinet, relating to matters of a secret or confidential nature, and would be injurious to the public interest;

an Ombudsman shall not require the information or answer to be given or, as the case may be, the document or paper or thing to be produced.

^[159]See principle 6 and Part IV of the Privacy Act.

^[160]Which include requests for access to information about a person other than the requester.

^[161]Official Information Act s 24(1)(b); Privacy Act, principle 6(1) and s 29(2)(a).

^[162]That is, under Part II rather than Part IV of the Act.

^[163] Section 18(e) of the Official Information Act is about "documents" while s 24(1)(b) of the Privacy Act refers to "information" _ an apparently wider term which is not limited to recorded, tangible information. The Danks Committee intended the word to have that wider meaning (Towards Open Government: Supplementary Report, 61_62, quoting the Shorter Oxford English Dictionary: "that of which one is apprised or told"). The Ombudsmen have acted on that wider view (eg, by asking those involved in the action to provide a written account; see, for example, (1984) 5 OCN 106). But judicial opinion on the matter is divided: for the broader view, see: Commissioner of Police

v Ombudsman [1985] 1 NZLR 578, 586, [1988] 1 NZLR 385, 402; for the narrower view, see: R (a police officer) v Harvey [1991] 1 NZLR 242. The narrower view, if applied generally to the Act would considerably constrain what we understand to be its purpose and scope. See Eagles, Taggart and Liddell Freedom of Information in New Zealand (OUP, Auckland, 1992), 20_28. Consider also the obviously broad scope of the word "information" as used in the criminal offences proposed by the Danks Committee (Towards Open Government: Supplementary Report, 93, 96, 98, 99), and later enacted in amendments to the Crimes Act 1961 and Summary Offences Act 1981.

^[164]Section 52(3) of the Official Information Act; s 44(2) of the Local Government Official Information and Meetings Act.

^[165]Note also that there are differences between the reasons for withholding personal information under the Official Information Act (and the Local Government Official Information and Meetings Act) and those under the Privacy Act. Compare also s 29(1)(g) of the Privacy Act with para (e) of the definition of "official information" in s 2 of the Official Information Act.

^[166]See Privacy Act s 29(2)(b) which, interestingly, applies more broadly in the sense that it refers to "the information" being non-existent or unable to be found.

^[167]That right to seek correction does not of course apply to general official information. See Official Information Act s 26; Privacy Act principle 7.

^[168]For instance, by the manner of release of the information, the charge made for it, or the time taken to reply to a request.

^[169]The provisions considered in this chapter do not distinguish between official information and personal information except in minor detail; whereas the provisions relating to the force of the Ombudsmen's recommendations and the Cabinet veto power, which we discuss in chapter 10, do make this distinction.

^[170]Privacy Act s 68, relating to complaints to the Privacy Commissioner, is to the same effect.

^[171]Section 18(1), and 18(3)_(5): see also Wyatt Co (NZ) Ltd v Queenstown_Lakes District Council [1991] 2 NZLR 180.

^[172]The original ss 19(3)_(4) were replaced by the current provisions under s 24(1) of the Official Information Amendment Act 1987.

^[173]See, for example, Aikman, "The New Zealand Ombudsman" (1964) 42 Can Bar Rev 399, 407.

^[174]Furthermore, s 11(2) of the Official Information Act makes it clear that s 11(1) does not affect either s 31 of that Act or s 20(1) of the Ombudsmen Act.

^[175]Corbett v Social Security Commission [1962] NZLR 878.

^[176]See CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA). See also M v Home Office [1994] 1 AC 377 (HL) and the "Scott Report" (Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions) 1995_1996, H.C. 115. See also [1996] Public Law, Autumn, which is devoted to the "Scott Report".

^[177]Section 4 of the Acts Interpretation Act 1924.

^[178]See especially ss 6(b), 9(2)(a)_(ba), (f)_(h), 10, 27(1)(a)_(c) and (g).

^[179]The rule protecting the sources of newspaper information in defamation cases does not appear to present a problem for access by the Ombudsman in terms of s 19(5). The protection provided by the rule exists only as a limit on interrogatories and discovery and not at the trial, and it is not a matter of privilege. Such information might be protected from disclosure to the requester on the ground of confidence (s 9(2)(ba)). Section 2(1) of the Privacy Act in fact excludes news activities of a news medium from its scope. That exclusion might reflect the opinion of the select committee which considered the continued application to SOEs of the Ombudsmen Act and the Official Information Act. It recommended that the good reasons for withholding personal information from the requester should be extended to include withholding where

• the disclosure would be likely to identify an accredited journalist's source; and

• the information was subject to an obligation of confidence; or

• release would prejudice further supply of information. (Report of the State-Owned Enterprises (Ombudsmen and Official Information Acts) Committee 1990 AJHR I.22A, para 12.7).

^[180]Under s 19(3)_(4) of the Ombudsmen Act.

^[181]See the New Zealand Bill of Rights Act 1990 s 25(d), and The Privilege Against Self-Incrimination (NZLC PP25, 1996).

^[182] [1988] 1 NZLR 385, 391, 404_405, 411. We would add that usually the facts are not in dispute, the emphasis being on the inferences to be drawn from them.

^[183]Report of the Ombudsmen for the year ended 30 June 1986, AJHR A.3, 12.

^[184]Report of the Chief Ombudsman on case W.2733, 1991 AJHR A.3A.

^[185]Reports of the Ombudsmen for the year ended 30 June 1996, AJHR A.3, 9, 14; and 30 June 1995, AJHR A.3, 10.

^[186]But not personal information _ see para 352.

^[187]A local authority may override the recommendation of an Ombudsman within 20 working days of the recommendation being made, by passing a resolution at a meeting of the local authority: Local Government Official Information and Meetings Act s 32. Sections 32_37 of that Act contain equivalent provisions to ss 32_34 of the Official Information Act, expressly requiring the local authority to publish its decision in the Gazette and set out reasons for the decision (s 33); providing the requester with a right of review of the decision with the benefit of a special regime as to costs (s 34); and specifying that a requester who has been refused information cannot seek judicial review of that decision without first lodging a complaint with the Ombudsmen.

^[188] Section 32B(3)(a). That power is unnecessary: an administrative decision stands unless it is upset. The court needs no power to confirm it.

^[189] It follows that this section of the paper relates essentially to access to official information in general and not to personal information.

^[190] These figures do not give the full picture since a greater number of complaints are resolved in favour of the applicant without a formal recommendation being required.

^[191]The Ombudsmen advise that there has been one instance of a local authority overriding the recommendation of an Ombudsman under s 32 of the Local Government Official Information and Meetings Act 1987.

^[192]For example, Commissioner of Police v Ombudsman [1988] 1 NZLR 385 (CA); Police v Tyson [1989] 3 NZLR 507; and R (a police officer) v Harvey [1991] 1 NZLR 242.

^[193]Television New Zealand Ltd v Ombudsman [1992] 1 NZLR 106.

^[194]Wyatt Co (NZ) Ltd v Queenstown_Lakes District Council [1991] 2 NZLR 180.

^[195]Keith, Resolution of Disputes under the Official Information Act 1982, Information Authority Occasional Paper 1 (Information Authority, Wellington, 1984), para 3.2(3).

^[196] See, for instance, the Cabinet Office Manual (Cabinet Office, Department of the Prime Minister and Cabinet, Wellington, 1996), paras 2.16 and 6.21; and see appendix H.

^[197]Two possible justified exceptions might be if the information in issue is said not to be official information, or the body is argued not to be subject to the Act _ but such issues, if not resolved by legislation, could and should be brought to court at a much earlier stage.

^[198]Report of the Ombudsmen for the year ended 30 June 1994, AJHR A.3, 29_30

^[199]Report of the Ombudsmen for the year ended 30 June 1995, AJHR A.3, 40.

^[200] See also LAC, Legislative Change: Guidelines on Process and Content (LAC, Report 6, rev ed, Wellington, 1991), para 154.

^[201]See R v Secretary of State for the Environment, ex p Ostler [1977] QB 122 (CA); Cheyne Developments Ltd v Sandstad (1986) 6 NZAR 65; and Taylor, Judicial Review: A New Zealand Perspective (Butterworths, Wellington, 1991), 3.13.

^[202]Which would still allow information to be withheld, contrary to the Ombudsman's recommendations, in exceptional cases.

^[203]There have been no reported cases in which this has occurred: but note Heron J's approval of a requester's right of enforcement in the Television New Zealand case: [1992] 1 NZLR 106, 122_123.

^[204]This passage was approved by Prichard J in the High Court in Hauraki Catchment Board v Rutherford [1982] 2 NZLR 578, 583.

^[205] The Supreme Court of Canada put that point in a neat formula: "constitutional conventions plus constitutional law equal the total constitution of the country": Reference re Amendment of the Constitution of Canada (1981) 125 DLR (3d) 1.

^[206] Tribunals and Inquiries Act 1958 (UK) (now 1992), Report of the Committee on Tribunals and Inquiries, Cmnd 218 (1958).

^[207] See especially the 1959 Declaration of Delhi and the other documents included in the International Commission of Jurists' publication, The Rule of Law and Human Rights _ Principles and Definitions (1966).

^[208] Conway v Rimmer [1968] AC 910.

^[209] Padfield v Minister of Agriculture and Fisheries [1966] AC 997.

^[210] Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

^[211] See a comparison of the 14 interests listed as protected in New Zealand in Towards Open Government; Supplementary Report, appendix 3, 115_118.

^[212] This amendment was inserted following the enactment of the Privacy Act 1993 and came into force on 1 April 1993

^[213]See Practice Guidelines No. 6 _ "Current Approach of the Ombudsmen to the Interface between sections 9(2)(a) and 27(1)(b) of the Official Information Act/sections 7(2)(a) and 26(1)(b) of the Local Government Official Information and Meetings Act and the Privacy Act" _ July 1994