New Zealand: Official Information Act implementation often ill-informed

Brief Counsel

The Chief Ombudsman's report into the implementation of the Official Information Act (OIA) finds that non-compliance is often the result of uninformed or ill-informed application rather than deliberate.

To reduce this problem, her office will produce a number of tools to assist agencies to meet their OIA obligations.

Context

The Ombudsman considers that the OIA is a "key tool and safeguard in New Zealand's democracy" and agrees with the Court of Appeal that "the permeating importance of the Act is such that it is entitled to be ranked as a constitutional measure".

It represented a culture change when it was passed in 1982, as evidenced in its title and the fact that it replaced the Official Secrets Act 1951. The basic tenet on which the OIA is founded is that official information held by the government should be made available to the public unless there is good reason for withholding it, the fundamental idea being to increase public participation and accountability in decision-making.

The Ombudsman's review – Not a game of hide and seek – was provoked by a growing dissatisfaction, particularly among the media and Opposition parties, with the way OIA requests were being handled and with a perceived politicisation of the process over time.

Main findings

The investigation found that, most of the time, the 21 agencies surveyed were compliant in the way they operated under the OIA on a daily basis but that there were a number of "increasing risks and vulnerabilities" that needed to be addressed if the Act was to fully achieve its purpose.

Key among these were:

  • mixed messages from Ministers as to their expectations in terms of OIA compliance. Chief executives and senior officials understood their legal obligations under the Act and were committed to the Act's principles. However over 40% of the workers who responded to the Ombudsman's survey were unsure whether their CEO and senior management had a pro-disclosure policy and most organisations saw providing information to the public as a reactive operational task rather than a planned strategic intention that would benefit the organisation's work
  • few agencies required any OIA training of their senior managers, who were often the decision-makers
  • first line staff were usually tier three managers and had to fit their OIA work around their other responsibilities, which meant that timelines could often blow out
  • often there were gaps or assumptions in agency policies and procedures for dealing with requests – e.g. what comprised a reasonable search for information, the working day count when requests were received electronically, the application of the Cabinet Manual's "no surprises" policy, and
  • data storage systems made information identification and retrieval difficult.

Actions

The Ombudsman has committed to providing guidance to assist with OIA compliance, both in the letter and in the spirit, and will monitor the application of these in practice.

They include:

  • a model protocol to govern responses to OIA requests
  • a protocol to govern dealings with Ministers' offices on OIA applications. This will be developed in consultation with the State Services Commission (SSC), the Cabinet Office, the Department of Prime Minister and Cabinet and the Ministry of Justice and could be integrated into the code of conduct the SSC is developing for ministerial/political advisers, and
  • a self-assessment tool for agencies to track their performance and identify any weaknesses.

The Ombudsman noted that there was no reason why a Minister's Office should not be informed of OIA requests "so long as there is no improper pressure or political manipulation of either the substantive decision or the timing of the delivery of the agency's response to the requester". She indicated that seeking the Minister's approval or clearance prior to release crossed this boundary.

Chapman Tripp comments

The approach taken by the Ombudsman in her report has parallels with the judgment in Kelsey v The Minister of Trade. The report has taken a back to basics approach to applying the Act, as did the Court in Kelsey. See Chapman Tripp's commentary here.

Given the centrality of the OIA to New Zealand's democracy and its quasi-constitutional status, it is perhaps surprising that this is the first substantial review in the Act's 33-year history. We expect that one of the most valuable aspects of the review will be the focus that agencies will now put on testing their systems for compliance, in light of the Ombudsman's guidance. In many cases these systems will have developed incrementally over time. A general refresh, assisted by the Ombudsman's analysis, is an excellent opportunity to test those systems against best practice.

Of course the various pressures on agencies to meet their OIA obligations will continue. However, the Ombudsman's recommendations should help to reduce the frustration of some users of the OIA processes by encouraging consistency and transparency of agency decision-making.

The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.

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Authors
Justin Graham
 
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