Official Information Act 1982

Official Information Act 1982
New Zealand Parliament
An Act to make official information more freely available, to provide for proper access by each person to official information relating to that person, to protect official information to the extent consistent with the public interest and the preservation of personal privacy, to establish procedures for the achievement of those purposes, and to repeal the Official Secrets Act 1951
Date of Royal Assent 17 December 1982
Date commenced 1 July 1983
Administered by Minister of Justice
Introduced by Jim McLay
Amendments
None
Related legislation
Local Government Official Information and Meetings Act 1987
Status: Current legislation

The Official Information Act 1982 is a New Zealand law which replaced the Official Secrets Act of 1951 which made the release of information held by Government agencies an offence.[1] The Official Information Act takes the opposite approach and is designed to promote access to information held by various Government agencies. Its guiding principle is that information should be made available unless a good reason exists under the Act for withholding it.

Requests to Government Departments or State agencies for information are supposed to be answered within 20 working days. If an agency declines to provide the information, it must provide a reason and advise the requester that they have the right to ask the Ombudsman to investigate whether or not that decision is justified under the provisions of the Act.

Background

Prior to 1982, reflecting New Zealand's colonial heritage, there was a perception that official information belonged to “the Queen and her advisers”. This perception was codified in the Official Secrets Act and earlier pieces of legislation, whereby official information was kept secret unless a particular decision was made to release it.[2] In the latter half of the twentieth century, increased concern for human rights internationally favoured more open government and the introduction of greater control over state agencies. Freedom of information legislation was passed in many countries around the world as attitudes to government and the administration of public power began to change.[3]

In New Zealand, pressure began to grow for similar legislation and for the requirement for secrecy to be overturned. This process was assisted by the courts which made landmark decisions requiring more control over the exercise of political power.[4] In 1962, this change of mindset manifested in the Parliamentary Commissioner (Ombudsman) Act which was an important first step towards the creation of more open government. It gave the Ombudsmen wide rights of access to departmental files and established that failure by a state agency to give reasons for any decision to refuse information as one of the grounds on which an Ombudsman could intervene. Also in 1962, a Royal Commission of Inquiry was held into the State Services in New Zealand. The Commission stated: "Government administration is the public’s business, and the people are entitled to know more than they do of what is being done, and why".[5] In 1964 the State Services Commission adopted this approach and directed that the underlying principle for Government agencies would be that information should be withheld only if there was a good reason for doing so.

In 1982 these ideas were codified by the passing into law of the Official Information Act by the National Government. The Prime Minister at the time was Rob Muldoon, who according to Privacy Commissioner, Marie Shroff, was "a strong believer in the battler, the little man, the ordinary citizen and his or her rights".[6]

Principle of availability

The guiding principle of the New Zealand Act is the principle of availability which states: "That information shall be made available unless there is good reason for withholding it". Its purpose is defined more specifically in section 4 as follows:

The Act also includes provisions which protect sensitive information where this is necessary in the public interest or to preserve personal privacy.[7]

Information covered by the Act

The Act creates a regime by which people can request and receive information held by government officials and bodies. Individuals can request the reasons for any decision made by a government agency about them personally and/or challenge the fairness of that decision. However, if a government agency has breached an individual's privacy, complaints about that should be made to the Privacy Commissioner under the Privacy Act 1993[8] Under the OIA, information can be requested about:

State Agencies covered by the Act

The scope of the Act is extremely broad, and includes all information held by any Minister in their official capacity, or by any government department or organisation (as listed in the Act or the Ombudsmen Act 1975). This includes government ministries, hospitals, universities, schools, the Security Intelligence Service, and even state-owned enterprises. Information held by local government bodies is also available to the public but covered by the Local Government Official Information and Meetings Act 1987.

Legitimate exclusions

Reasons for agencies to withhold information include national security or international relations; that the information requested was supplied by another government in confidence; that the information affects the maintenance of the law, personal safety, or may cause severe economic damage. Other reasons include:

Requests can also be refused if release of the information would contravene the law or constitute contempt of court, or for administrative reasons (because the information will soon be made publicly available, that substantial research is required, or simply because it is vexatious).

Public interest concerns

When a Government agency refuses to supply requested information, the Act provides that where a judgment not to release information might be made because of harmful consequences, those consequences can be outweighed by the public interest in making the information available.[9]

Request process

Requests for official information may be made by New Zealand citizens or residents (including anyone present in New Zealand) or by body corporates incorporated in New Zealand, or having a place of business in New Zealand. Government organisations have 20 working days to respond, and if a request is refused in whole or in part, they must give reasons for the refusal. Decisions can be appealed to the Ombudsman. Organisations can charge for large requests, but this is very rare.

The role of the Ombudsman

When a Government agency declines to provide the information requested, it is required to advise the person seeking the information the reason the request has been declined and advise them they can ask the Ombudsman to investigate whether the refusal is justified under the Act.[10]

Increase in OIA requests

In 2011/12 the Ombudsman received 10,636 complaints. Part of this was due to an increase in complaints about the Earthquake Commission and the Canterbury Earthquake Recovery Authority such that by 2011, the total number of complaints being received was double that provided for by the baseline funding.[11]

In 2013, the Ombudsman received 13,684 complaints, an increase of 29% on the previous year. The Ombudsman described this as "an unprecedented increase in demand for its services...for the second year in a row.[12] In response the Government provided extra funding in the budget in both 2013 and 2014.

According to the Law Commission, increased use of the Act has led to friction between those requesting information who complain that official information is disclosed reluctantly and the State agencies concerned about the time and cost incurred in dealing with these requests.[13]

Attempts to circumvent OIA

In the last few years the Ombudsman has repeatedly expressed concerns that Government agencies are trying to get around the Act. She says there is an increasing number of officials in government who fail to understand the constitutional importance of the legislation and that this trend was 'reprehensible' and 'extremely dangerous'.[14]

In September 2014, former Customs lawyer, Curtis Gregorash, said "he was told by senior Customs executives to refuse Official Information Act and Privacy Act requests."[15] Chief Ombudsman Dame Beverley Wakem said she was "appalled" by Gregorash's claim. She said an inquiry would be held after the September election to compel evidence to be given under oath if she found Government agencies were holding back information without good reason.[16]

The following month, Prime Minister John Key admitted the Government deliberately delays releasing official information "if it is in its best interest to do so." Although it is legally obliged to respond to OIA requests within 20 days, Radio New Zealand said it took 17 months for Government to release official advice on child poverty which RNZ had requested.[17]

In December 2014, the chief Ombudsman, Dame Beverley Wakem, began a major review of the Official Information Act to assure the public that "both the letter and the spirit of the law were being followed by the public sector". Altogether 63 state agencies and all 27 ministers' offices will be asked to complete a detailed survey. Twelve of those agencies have been selected for a more formal review, based on their size, the number of OIA requests they receive, and the number of complaints.[18]

The review, released in December 2015, found no direct evidence of political interference in the release of information but noted that nearly 80% of senior managers had never received any training in responding to OIAs and that most government agencies did not have proactive policies for the timely release of information.[19]

Effect on media

New Zealand Herald senior reporter, David Fisher, says when he started as a journalist 25 years ago, getting information from public servants was easy. He would simply call them on the phone. In October 2014 he gave a speech in which he said the OIA legislation has made it harder, rather than easier, to get information. He says things began to change with the advent of "no surprises" policies which became a feature of coalition agreements since 1996, and escalated after the 2005 election, "when Helen Clark's third term threatened to get away from her."

Fisher believes public servants are now so afraid of embarrassing their minister that they now "block requests for as long as they can and delete as much as they can using whatever section of the OIA act that they can." Because less information is forthcoming, journalists send more and more OIAs. Fisher says "It turns into a bizarre arms race."[20]

In December 2014, the Media Freedom Committee, a body representing the country's editors, said the Ombudsman needed to review the Government's 'deliberate delaying tactics'. The Committee Chairperson and editor of The Press, Joanna Norris, said "the Act is being used as a mechanism to delay the release of information rather than facilitate it".[21]

When releasing her report into the OIA process in 2015, Dame Beverley Wakem criticised media saying they sometimes acted like "rottweilers on heat" when requesting information which made some department heads "gun shy". [22]

See also

References

  1. ↑ Steven Price, The Official Information Act, Victoria University, p3.
  2. ↑ Review of theOfficial Information Act 1982, Law Commission, October 1997 p 147
  3. ↑ Mazhar Siraj (2010). "Exclusion of Private Sector from Freedom of Information Laws: Implications from a Human Rights Perspective" (PDF). Journal of Alternative Perspectives in the Social Sciences. 2 (1): 211 & 223.
  4. ↑ Review of theOfficial Information Act 1982, Law Commission, October 1997 p 146
  5. ↑ Review of theOfficial Information Act 1982, Law Commission, October 1997 p 145
  6. ↑ "The Official Information Act and Privacy" (PDF). June 2005.
  7. ↑ Official Information Act, New Zealand legislation
  8. ↑ Official information: Your right to know, Ministry of Justice
  9. ↑ Review of the Official Information Act 1982, Law Commission, 1997 p 148
  10. ↑ Part 5, Official Information Act
  11. ↑ Bulging backlog creating a 'crisis' in Office of the Ombudsman, NZ Herald 15 February 2012
  12. ↑ Highest ever number of complaints for Ombudsman, Press release 15 October 2013
  13. ↑ Review of the Official Information Act 1982, October 1997, para E15
  14. ↑ Top-level alarm over secrecy trend, NZ Herald 28 September 2012
  15. ↑ Listen to audio interview: Ex-govt lawyer's 'bury bad news' claim, New Zealand Herald, 19 September 2014
  16. ↑ Ombudsman 'appalled' by ex-Customs lawyer's OIA allegations, NZ Herald, 19 December 2014
  17. ↑ PM admits Govt uses delaying tactics, RNZ 16 October 2014
  18. ↑ Government offices selected for OIA review, New Zealand Herald, 17 December 2014
  19. ↑ Official Information Act review finds no evidence of political interference, NZ Herald, 8 December 2015
  20. ↑ Fisher, David, David Fisher: OIA a bizarre arms race, NZ Herald, 23 October 2014
  21. ↑ Media body takes aim at Govt OIA delay tactics, new Zealand Herald, Radio New Zealand, 17 December 2014
  22. ↑ Ombudsman warns media about acting like 'rottweilers on heat', Stuff, 2 December 2015
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