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Preface

ThIS REPORT RESPONDS TO A REFERENCE from the Minister of Justice to report on certain aspects of the Official Information Act 1982. It also addresses other issues not directly within the terms of reference but which affect the operation of the Act.

The Law Commission received the reference in 1992, and in December 1993 circulated a draft report to a wide range of public sector organisations and bodies who use the Act to request official information. In 1994, with the approval of the Minister of Justice, the Commission decided to delay publication of its final report. The decision was motivated in part by the Commission’s competing work commitments; but also by a recognition that publication in the period before New Zealand’s first MMP election might cause the report to date prematurely in light of subsequent political and administrative developments. In the executive summary, and more fully in chapter 1, we comment on how changes in government over the past 5 years have affected the use of the Act, and enhanced its importance as a major instrument in laying the affairs of government open to public scrutiny.

The major problems with the Act and its operation are:

• the burden caused by large and broadly defined requests,
• tardiness in responding to requests,
• resistance by agencies outside the core state sector, and
• the absence of a co-ordinated approach to supervision, compliance, policy advice and education regarding the Act and other information issues.

Neither these problems, nor the terms of reference, bring into question the underlying principles of the Act.

The executive summary to this report contains the Commission’s conclusions and recommendations. We have divided these into two groups: first, those which respond to the major problems we have identified and therefore, in the Commission’s view, warrant immediate consideration. The second group of conclusions and recommendations involve fine-tuning of the Act and are less urgent given our overall conclusion that the Act generally achieves its stated purposes. Our conclusions and recommendations emphasise the importance of administrative as well as legislative responses to the problems we have identified.

Structure of the report

In chapter 1 of the report, we comment on aspects of the changing context in which the Official Information Act operates. We also discuss the present administration of the Act, and suggest how this might be improved.

The terms of reference from the Minister of Justice to the Law Commission are set out in appendix A. Four of the terms of reference, discussed in chapters 2–5 respectively, relate to the initial processes agencies use in responding to requests for official information:

• Are the provisions of ss 12(2) and 18(f)¹ adequate to deal with broadly defined requests and requests for large amounts of information?
• Should an agency be able to charge for the time spent and expenses incurred in deciding whether to release information pursuant to a request?
• Are the time limits in ss 15, 15A and 29A for the making of decisions by agencies, and for their responding to the Ombudsmen’s requirements, appropriate? The time limits require response as soon as reasonably practicable, with a maximum of 20 working days (subject to extension in certain cases).
• Are the rules set out in s 15(4) and (5), relating to decisions by officials and Ministers on requests for information, appropriate? Those provisions require the chief executive of a department, or an authorised officer, to make the decision (if the request is not transferred), and state that the decision-maker may consult over the proposed decision.

Three of the terms of reference, discussed in chapters 6–8, concern some of the good reasons stated in the Act for withholding official information:

• How are the interests of effective government and good administration, as reflected in s 9(2)(f) and (g), to be appropriately protected in the context of the principle and purposes supporting availability? Sections 9(2)(f)(iv) and 9(2)(g)(i) relate to the confidentiality of advice and the free and frank expression of opinion between Ministers and officials. Is it possible to define more precisely the interests that these provisions seek to protect?
• Should the special rules in ss 6(a)–(b), 7, 10 and 31 governing the treatment of some or all classes of diplomatic documents be retained?
• Should the administrative reasons for refusing to disclose official information in s 18(d)–(f)² apply equally to the disclosure of personal information?

The final two terms of reference, discussed in chapters 9 and 10, concern the review process:

• What obligations should a decision-maker have with respect to a request for information, particularly in relation to a requirement by an Ombudsman for information during the course of an investigation?
• How appropriate is the Order in Council procedure for the veto of an Ombudsman’s recommendation for the release of information?

Chapter 10 also discusses enforcement of the public duty to comply with an Ombudsman’s recommendation, where the veto procedure has not been followed.

Most of the issues arising from the terms of reference relate equally to the parallel provisions of the Local Government Official Information and Meetings Act 1987, and this has been taken into consideration. To simplify the discussion this report generally mentions only the provisions of the Official Information Act. We have also commented, with the agreement of the Privacy Commissioner, on provisions in the Privacy Act 1993 which parallel provisions of the Official Information Act, particularly the procedural provisions which deal with requests. The Commission is aware, however, that the Commissioner may wish to make his own recommendations concerning these provisions in his current review of the Privacy Act. The table in appendix J sets out the corresponding provisions of the three Acts.

For convenience we have generally used the word agency throughout the report to refer to the Minister, department, organisation or local authority involved.

The Commission hopes that its report will be of use as a reference work for those who use the Act either as requesters or as the holders of official information.

The Commission acknowledges the help of many people, in both the public and the private sectors, who assisted or participated in the review. The co-operation and help of the Office of the Ombudsman is especially noted. We are grateful to the Hon David Caygill, a former Minister of the Crown, and Nadja Tollemache OBE, a former Ombudsman, for their invaluable comments on the final draft of this report. We also acknowledge the work of the Hon Sir Kenneth Keith, who was responsible for the review during his time as President of the Law Commission, and who prepared the first draft of the report.