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The right to information has become one of the fundamental rights of the twentieth century citizen. . . . All citizens must be in a position where they can understand and assess the policies followed by governments.3
E1 WE ARE OFTEN SAID TO LIVE in an information age. Access to information about government, in the late twentieth century, is a prerequisite to effective democracy and participation in it. In New Zealand, the Official Information Act 1982 has for 15 years been the principal means by which the public has secured access to this information.
E2 This report responds to a reference from the Minister of Justice to report on certain aspects of the Act, and comments on other important issues outside the terms of reference.
E3 We are satisfied that the Act generally achieves its stated purposes. This report identifies, however, a number of factors which inhibit the effective operation of the Act and as a result the wider availability of official information.
E4 The major problems with the Act and its operation are:
Neither these problems, nor the terms of reference, bring into question the underlying principles of the Act.
E5 There have been continuing calls both in New Zealand and elsewhere for government to be more accountable to citizens. In our recent report, Crown Liability and Judicial Immunity: A response to Baigent’s case and Harvey v Derrick (NZLC R37, 1997), we confirmed the principle that the state is under the law. But amenability to suit is only one way in which the state may be held accountable to the citizen. Another is to require the activities of government to be open to public scrutiny. The widespread acceptance of the principle of open government in New Zealand is largely attributable to the Official Information Act.
E6 The Act recognises open government through the principle that official information is to be made available unless there is good reason for withholding it (s 5). That principle is supported by s 4 of the Act:
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.
E7 The principle of open government is further supported, in a practical sense, by explicit statutory processes both for making the original decisions about the availability of official information and for reviewing those decisions.4
E8 The Act applies to a very wide range of public bodies including Ministers, government departments, and other listed bodies established to carry out public functions (see s 2(2)). Any “official information” held by these bodies is open to request.5
E9 The Act has made the open government principle central to the ethos of public administration. In the core public sector there is substantial and increasing recognition that, in most cases, official information will be released. In many cases the only issue is the timing of release. It is recognised that the Crown has no monopoly over official information – it belongs instead to the public.
E10 The Act now operates in a wider context of statutory and administrative provisions which have further enhanced the principle of openness. In 1987 the Local Government Official Information and Meetings Act extended the official information regime to local government. In 1993 the rights of access to personal information originally contained in Part IV of the Official Information Act were carried across to the Privacy Act, and were made available in respect of information held by any agency, whether in the public or the private sector. The Public Finance Act 1989 and the Fiscal Responsibility Act 1994 now ensure that significant information about public administration and the economy is made public as a matter of course, without recourse to the Official Information Act. The Cabinet’s recent acceptance of a policy framework developed by the State Services Commission in respect of government-held information generally, will ensure a continuation of this trend by administrative means.6
E11 Other changes have cast a different perspective on the Official Information Act, while also reinforcing its importance. Underlying the reshaping (and reduction) of the state from the mid-1980s was the belief that the range of state activity was too wide,7 and more particularly that the state was performing certain functions to which it was not suited. The commercialisation and privatisation of these functions have resulted in a sharp distinction between core Crown functions (including taxation, foreign affairs, defence, and policing) and others which are less clearly “public” functions and are carried out by the Crown, another public body, or the private sector.
E12 The Official Information Act continues to apply to state-owned enterprises and other Crown entities established as a result of these reforms,8 and also, by virtue of s 2(5), to those in the private sector performing functions contracted out by the Crown and public bodies.9 The principle of open government necessarily operates somewhat differently in those contexts, as opposed to the core state sector. The incorporating statutes of the new bodies impose obligations to act in a commercial manner, and some of them have perceived this as inconsistent with, and ultimately overriding, their obligations with regard to official information (see chapter 1, paras 5–11). Many public servants have now left those bodies and have been replaced by managers from the private sector often selected to introduce business practices and a commercial culture. This has resulted in a decline in knowledge within these bodies about the Official Information Act and understanding of its practical application.
E13 Throughout the changes to the public sector one thing has remained constant: reduction in the size of the state has not reduced calls for the state to continue to be accountable to the citizen, either in respect of those services which the Crown still provides, or in those areas in which it has only regulatory or supervisory responsibility. If anything, the call for accountability is louder than ever.
E14 In the core state sector, the wide acceptance of the Act has placed a burden on Ministers and departments. The Minister’s reference to the Law Commission was prompted, in part, by a burgeoning use of the Act to obtain large amounts of information concerning significant and difficult matters of policy development. Some Ministers were concerned about the impact of the Act on the quality of advice received from officials. More recently the proliferation of political parties and the advent of proportional representation have increased the use of the Act by members of Parliament and parliamentary research units as a means of securing information.10
E15 Increased use of the Act has resulted in friction between those requesters who complain that official information is disclosed reluctantly, belatedly, or not at all, and the holders of information concerned about the time and cost incurred in dealing with requests. This friction may be exacerbated by agencies failing to use the Act as flexibly as was intended, for example, by imposing conditions on the use of information instead of refusing a request altogether.
E16 The work of the Ombudsmen under the Official Information Act attracts general support. But there is uncertainty about how the public duty11 to comply with their recommendations is to be enforced when an agency simply ignores them, as has occurred recently.
E17 This report takes account of the statement in Schedule A of the Coalition agreement of the present government, that the Official Information Act should be reviewed to increase the availability and transparency of official documents.12 The Law Commission’s conclusions and recommendations are consistent with the sentiment expressed in that statement.
E18 Since 1982 there has been a fundamental change in attitudes to the availability of official information. Ministers and officials have learned to live with much greater openness. The assumption that policy advice will eventually be released under the Act has in our view improved the quality and transparency of that advice.13
E19 The report acknowledges the impact which the Act can have on the policy process and the workloads of some officials and ministerial staff. The Commission considers that while changes in the administration of the Act and to some of its procedural provisions are capable of easing the administrative burden, the withholding provisions of the Act currently strike the correct balance between the principle of openness and the interests of effective government (see further chapter 6). Most criticisms of the Act are relatively specific and turn upon the tensions arising from competing – sometimes incompatible – interests.
E20 We have divided our recommendations and conclusions into two groups: those which respond to the major problems we have identified, and therefore warrant immediate consideration to improve the operation of the Act; and those whose implementation is less urgent. We now summarise our conclusions and recommendations; these are restated in each chapter along with our proposed amendments to provisions in the Act.
E21 In relation to large and broadly defined requests, the Law Commission recommends that ss 12 and 13 of the Act be amended to encourage dialogue between an agency holding information and the requester. This could include discussion of the terms of the request, any problems the request poses for the agency, and the form in which, or conditions on which, the agency intends to release the information. The Act should expressly allow a requester to specify, and an agency to have regard to, the purpose for which the information is sought; but also prevent an agency from relying on a failure to specify a purpose as a ground for refusing the request (chapter 2, paras 65–83).
E22 Section 18(f) of the Act permits an agency to refuse a request where the information requested “cannot be made available without substantial collation or research”. This provision should be repealed and replaced by a wider provision (s 18A) which would incorporate the current s 18(f), but also:
(See chapter 2, paras 84–108)
E23 The Ombudsmen’s guidelines should be updated to expressly state that the new s 18A covers the process of determining what information falls within the scope of the request. Finally, a new paragraph should be inserted into s 18 to allow an agency to refuse a repeat request for information to which the requester has already been refused access, provided no reasonable grounds exist for that person to request the information again (chapter 2, paras 92, 104–108).
E24 The Law Commission does not propose any change to the charging provisions in s 15 of the Act. In particular, the Act should not allow agencies to charge for time and expenses incurred in deciding whether or not to release official information. Each decision under the Act ought to add to agencies’ institutional capacity to deal more efficiently with future requests, as the body of relevant jurisprudence increases: as no equivalent benefit is received by the requester, on principle the agency and not the requester should bear that cost (chapter 3, paras 129–137).
E25 The Act does not require amendment to enable agencies undertaking commercial activities for profit to charge in any different way from other agencies. The test should remain one of reasonableness, as qualified by s 15(2). Useful guidance is provided by the Department of Justice’s 1992 guidelines, which should be updated to conform with the more recent policy framework on government-held information. The Law Commission does not support any change to the practice of not charging for requests by members of Parliament and parliamentary research units. Problems in this area are best addressed through administrative measures and the provisions relating to large and broadly defined requests (chapter 3, paras 138–149).
E26 The Law Commission recommends that the government should review the 20 working-day time limit in s 15(1) in 3 years, with a view to reducing it to 15 working days. This would recognise that much information is now, or should become, more readily retrievable than when the 20 working-day limit was set,14 because of developments in information technology and information management. In the meantime, the government should adopt a 3-year strategy aimed at improving the ability of all agencies to respond to requests under the Act through better information technology and management (chapter 4, paras 163–173).
E27 The Law Commission endorses the Ombudsmen’s emphasis on agencies’ obligation to respond to requests “as soon as reasonably practicable”. This, and not the 20 working-day time limit, is their principal obligation as regards timeliness (chapter 4, paras 155–158).
E28 In relation to other provisions, the Law Commission recommends that:
(See chapter 4, paras 177–189)
E29 The Law Commission does not recommend any change to the “Cabinet veto” – the power of the Governor-General in Council under s 32 to direct non-compliance with an Ombudsman’s recommendation (chapter 10, paras 345–359).
E30 Section 32 should, however, stipulate that an agency seeking judicial review of an Ombudsman’s recommendation to release information must commence proceedings within 20 working days of the recommendation being made. Where an agency ignores the recommendation without having obtained a Cabinet veto, the Solicitor-General should, as a matter of constitutional practice, enforce the public duty upon the agency to comply with the recommendation (chapter 10, paras 364–382).
E31 The Law Commission recommends that, consistent with the Coalition agreement:
(See chapter 1, paras 37–50)
E32 Section 15(4) – relating to the making of decisions on requests by chief executives or their delegates – is redundant and should be repealed. Section 15(5) should be broadened beyond departments to cover consultation by all agencies which are subject to the Act. With the suggested repeal of s 15(4), the reference to that subsection in the opening words of s 15(5) should be deleted (chapter 5, paras 195–205).
E33 The Act and current practice under it adequately protect the rights and interests of third parties (chapter 5, paras 206–212).
E34 Section 9(2)(f) and (g) adequately protect internal processes of government and do not require amendment. The interests recognised in these provisions (including the protection of opinions to Ministers or agencies under s 9(2)(g)(i), which was raised in the course of our consultations) should continue to be the subject of an explicitly stated good reason for withholding official information. Administrative measures are preferable to legislative change in attempting to resolve difficulties with s 9(2)(f) and (g) (chapter 6, paras 245–254).
E35 Single person bodies such as the Commissioner for Children and the Mäori Trustee, which are subject to the Act, currently fall outside the scope of s 9(2)(g)(i). The definition of “member” in s 2 of the Act should therefore be amended to include single person bodies, so that they may be covered by the existing wording of s 9(2)(g)(i) (chapter 6, paras 258–259).
E36 In relation to the provisions protecting diplomatic documents, the Law Commission recommends no change to ss 6(a) and (b), 7 and 10 of the Act. However, the government should review the need for s 31(a),15 which concerns the Prime Minister’s power to issue a certificate preventing the Ombudsmen from recommending the release of information. The government should consider in particular whether subparas (i) and (ii) might be deleted, and para (a) confined to information “likely to prejudice the security of New Zealand”. Section 31(b) should be deleted in any event (chapter 7, paras 272–286).
E37 The three administrative reasons for refusing requests in s 18(d), (e) and (f) should not be applied to personal information (chapter 8, paras 299–309).
E38 Section 28(3) of the Official Information Act, which requires complaints to the Ombudsmen to be in writing, should be repealed to cater for circumstances where this is not immediately possible, and for consistency with other complaints to the Ombudsmen.16 Oral complaints, to be put in writing as soon as practicable, should be allowed (chapter 9, paras 311–312).
E39 Section 20 of the Ombudsmen Act, which allows the Attorney-General to certify that disclosure of information might have certain adverse consequences,17 should be amended to specify that this power may only be exercised by the Attorney-General personally (chapter 9, paras 316–320).
E40 The Law Commission supports the general approach of s 19(5A)–(5B) of the Ombudsmen Act and s 94(1A)–(1B) of the Privacy Act, both of which came into force in September 1997. These provisions allow the Ombudsmen and Privacy Commissioner to require the supply of information to assess the validity of a claim that the information is privileged. The new provisions should be amended, however, to preserve the privilege against self-incrimination, and legal professional privilege so far as it relates to advice concerning the particular complaint (chapter 9, paras 321–327).
E41 There is no ‘burden of proof’ on agencies to show good reason for withholding information under s 9 and the Law Commission does not recommend any change in this respect. Nor does it recommend any change to the time limits for complying with requirements of the Ombudsmen during investigation of a complaint. Finally, the Commission does not favour the imposition of a time limit upon the Ombudsmen in investigating official information complaints (chapter 9, paras 328–344).
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