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The New Zealand official information act
Jhe New Zealand Official information Act
Susan Elizabeth Richards* Leo Michael Donnelly
The New Zealand Official Information Act 1982 is of constitutional importance, providing for public access to information held by government departments and organizations and Ministers of the Grown. Fundament~ to the Act is the principle of availability: “information shall be made available unless there is good reason for withholding it.” The withholding provisions identify interests which may need to be protected and may provide good reason to withhold information. Not all interests have the same weight, and some may be outweighed by other public interest considerations favoring disclosure. The Act is information based not document based and requires each request for information to be considered on its merits against its principle, purposes, and withholding provisions. It provides for partial disclosure where some information may need to be protected but there is no good reason to withhold all the information. Major public service restructuring and the “‘commercialization” of many public sector activities have created difficulties in the operation of the Act, but these are addressed on an ongoing basis by the Ombudsmen in order to ensure that the purposes of the Official Information Act are understood and accepted by those to whom it applies. The Act is an integral part of the public sector operational environment and will be increasingly important as New Zealand moves into the mixed member proportional system environment for electing its Parliament.
The Official Information the Act describes it as:
Act 1982 came into effect on July I, 1983. The long title to
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 195 1. * Direct all correspondence to: Susan Elizabeth Richards, Assistant O~bud~~un, Level 14, 70 The Terrace, P.0. Box 10152. Wellington. New Zeakmd. Government
Information
ISSN: 0740-624X.
Quarterly,
Volume
13, Number 3, pages 243-253.
i3@v of the Ombudsman,
244
GOVERNMENT
INFORMATION
QUARTERLY
Vol. 1 ~/NO. 311996
As indicated in the long title, the Act overturned the assumptions inherent in the Official Secrets Act that official information was the property of government and should not be disclosed without specific reason and authorization. In its place, the Official Information Act provides that “information shall be made available unless there is good reason for withholding it.” This principle of availability is contained in section 5 and underpins the philosophy of the Act.
BACKGROUND The legislation had its genesis in two reports prepared by the Committee on Official Information (the Danks Committee) which was tasked by the government in 1978 “to contribute to the larger aim of freedom of information by considering the extent to which official information can be made readily available to the public.“’ The Committee also produced a Supplementary Report* in which it expanded on the general notions outlined in its initial report and set out a draft Bill. In explaining its approach to the task in its General Report, the Committee stated: The assumption on which both the Government and interested groups are now tending to work is that official information should be made available to the public, unless there are good reasons to withhold it in the interests of the community at large. Such good reasons may include national security (both internal and external), public peace and order, economic stability (including industrial relations), commercial transactions, legal privilege (including client relationships), individual privacy, and the effective conduct of government business, as well as the need to ensure the continued availability of information for any of these purposes. We believe that, if they are to be effective, rules for the handling of official information must be brought into line with current attitudes and practices. The law must be such that it commands respect. We therefore consider that the system based on the Official Secrets Act should be replaced by a new set of arrangements. The Government should in our view, reaffirm its responsibility to keep the public informed of its activities and to make official information available unless there is good reason to withhold it. Grounds for withholding information from the public should be set out clearly, along with the basic principle. We do not think that an administrative directive to heads of departments and agencies would meet the need in New Zealand. The changes we propose are of such constitutional importance that they deserve to be given the force of law; in this way the Government and Parliament will provide an assurance to the public that no administrative directive could give. Legislation will also be required to repeal the Official Secrets Act and to replace it with more appropriate measures of protection. We therefore recommend that the proposals put forward below be incorporated in a new Official Information Act, which enshrines the central principle and sets out the grounds for withholding information.
PRINCIPLE
OF AVAILABILITY
The Committee’s recommendation that its proposals be incorporated in legislative form was accepted by the government and by Parliament. The Official Information Act 1982
The New Zealand
Official
information
245
Act
came into force on July 1, 1983. Fundamental in section 5:
to the Act is the principle
of availability
5. Principle of availability-The question of whether any official information is to be made available, where that question arises under this Act, shall be determined, except where this Act otherwise requires, in accordance with the purposes of this Act and the principle that the information shall be made available unless there is good reason for withholding it.
Purposes of the Legislation In addition,
the purposes
of the Act are clearly set out in section 4:
4. Purposes-The purposes of this Act are, consistently Executive Government’s responsibility to Parliament,(a)
with the principle
To increase progressively the availability of official information of New Zealand in order-
of the
to the people
(i)
To enable their more effective participation administration of laws and policies; and
in the
making
and
(ii)
To promote officials,-
of the
Crown
and
the
accountability
and thereby to enhance respect government of New Zealand:
of Ministers
for the law and to promote
(b)
To provide for proper access by each person to official information to that person:
(c)
To protect official information to the extent consistent interest and the preservation of personal privacy.
the good relating
with the public
The principle and purposes of the Act provide a framework or code against which to assess competing public interest considerations. The Act recognizes that there is a balance to be struck between those considerations and, in essence, requires that in every case where a request for official information is being considered, the decision maker must make a judgment as to whether the overall public interest requires disclosure or withholding of the information under consideration. The official information environment is not static and the Act recognizes that public attitudes and expectations change over time. The Act, therefore, contemplates that the availability of official information should increase progressively, thereby promoting increased public participation and transparency in government’s decision-making process. The Act also recognizes that government practices change; for example, §9(2)(f) refers to “the constitutional conventions for the time being.” Constitutional
Significance
As noted by the Danks Committee, the Official Information Act represented a significant constitutional development in New Zealand which was necessary to bring the system for handling official information into line with current attitudes and
practices. The Act recognizes that in a healthy democracy, the public has a legitimate interest in access to worthwhile information about government proposals and policies to facilitate, an the one hand, greater public participation in the formuiatian and development of proposals and, on the other, greater accountability for government’s performance. At the same time, the Act recognizes that there will be times when the arderly process of government requires the withholding of official information. The courts have confirmed the constitutional nature of the Act. In Commissioner qf Police v Ombudsman, McMullin J. said: ~Rdoubted~y the Act has effected an important change in the law of New Zealand. It repeaIed the Ufficiaf Secrets Act 1951 which was based on the British statute of 1911. ft reflects a move towards more open ~ovcr~me~t and recagnizes the desirability, if not the need, in a modern democratic society to make available to a citizen information in which that citizen has a legitimate interest or concern so long as that is consistent with the protection of the State and the preservation of personal privacy. While, in the sense that it balances the interests of the State against those of the private citizen, the Act may be regarded as a statute which bears on constitutional freedoms,. .3
In Wyatt Co (Nz) Ltd v Queenstown-Lakes District Council,4 Jeffries J also observed that both the Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987 are of constitutional significance and that the “Courts must zealously support those quite sweeping Iegisfative intentions. It is fundamental to the Act that the public are to be given worthwhile information about how the public’s money and affairs are being used and conducted, subject only to the statutory restraints and exceptions,“’ The constitutional nature of the Act was brought sharply into focus fallowing the General Election in November 1993 when it was unclear far same time exactly which party would farm the incoming government.5
Scheme of the Act The scope of the Act is very broad. It applies to official informative held by any government department, Minister of the Crown fin his or her official capacity), or government organization and includes information held by any officer, employee, or member of a department or organization in their capacity as such officer, employee, or member; or by an unincorporated body established for the purpose of assisting a department, Minister, or organization; or by an independent contractor engaged by a department, Minister, or organization in their capacity as such contractor. The departments and organizations are listed in Parts I and II of the First Schedule to the Ombudsmen Act and in the First Schedule to the Official Information Act and include state-owned enterprises and their subsidiaries; all state education authorities. including universities, polytechnics, colleges of education, and school boards of trustees; and all state health authorities. Only a iimited amount of ~nfornlation is excluded from the definition of the term “official information” in the Act:
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Information
Act
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(i) Library or museum material made or acquired and preserved solely for reference or exhibition purposes; (ii) Material placed in the National Library of New Zealand by or on behalf of persons other than Ministers of the Crown in their official capacity or departments; (iii) Any information which is held by a department, Minister of the Crown, or organization solely as an agent or for the sole purpose of safe custody and which is so held on behalf of a person other than a department or a Minister of the Crown in his official capacity or an organization; (iv) Any information held by the Public Trustee or the Maori Trustee in his or her capacity as a trustee within the meaning of the Trustee Act 1956; or in any other fiduciary capacity; (v) Evidence given or submissions boards, or courts of inquiry;
made to a Royal Commission
or commissions,
(vi) Information contained in any correspondence relating to an investigation conducted by an Ombudsman or by the Privacy Commissioner, other than information that came into existence before the commencement of that investigation.
Apart from the foregoing, the Act provides no exclusions for classes of information (e.g., Cabinet papers, Budget documents, and classified documents) held by those who are subject to the Act. Indeed, unlike many overseas freedom of information regimes, the New Zealand Official Information Act is information based, not document based. It applies to information however it is held-that is, whether in documentary form or otherwise. The starting point for the decision maker, when considering a request, is to assess what the result of disclosure of that information would be. If the assessment is that disclosure would result in some detrimental effect, the decision maker must then consider whether that detriment is reflected in any of the withholding provisions in the Act. If disclosure would prejudice one of the interests which the Act identifies as possible grounds for withholding, then depending on the nature and extent of the prejudice, the decision maker must decide whether to withhold the information. In each case when considering a request for official information the decision maker must exercise his or her judgment having regard to the merits and particular circumstances of the case. Withholding
Provisions
Sections 6, 7, and 9 of the Act identify interests which may need to be protectedthat is, circumstances in which it may be in the public interest not to disclose information. The Act does not treat the interests which may need protection equally. For example, 56 identifies interests such as the security or defense of New Zealand, international relations, and the maintenance of the law and provides that where disclosure of information “would be likely” to prejudice one of those interests, good reason for withholding that information exists. The Court of Appeal has interpreted the phrase “would be likely” to mean “a serious or real and substantial risk to a protected
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GOVERNMENT INFORMATION
QUARTERLY
Vol. 13iNo. 30996
interest, a risk that might well eventuate” (Commissioner of Police v ~~~~ds~~n). If that test is met in a particular case, then the information may be withheld. On the other hand, 59 identifies a number of interests-such as privacy, commercial activities, constitutional conventions, the effective conduct of public affairs, and legal professional privilege-which may need to be protected. However, where the assessment is made that disclosure of information would prejudice one of the interests identified in 59(2)(a)-(k), that is not the end of the matter. The decision maker must go on and consider whether there are any other factors which, in the public interest, outweigh the need to withhold the information. In other words, those interests are subject to countervailing public interest considerations favoring disclosure.
Processing Requestsfor Off i&al Information Under !j 12 of the Act, “any person”, as defined in $§( 1) of that section, “may request a department or Minister of the Crown or organisation to make available to him or it any specified official information” and “[tlhe official information requested shall be specified with due particularity in the request.” In other words, the recipient of a request must be able to identify the information requested. If a request is unclear, the Act requires the recipient to provide reasonable assistance to the requester to try to identify the information being sought (§13), and it also provides for the transfer of requests to the relevant organizations in appropriate cases ($14). Decisions on requests are to be made “as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the request is received.” However, where a large quantity of information is requested or a search through a large quantity of information is necessary, or where consultations are necessary and the request cannot therefore reasonably be answered within 20 working days, the maximum time limit for response can be extended beyond 20 working days so long as the requester is notified of the extended time frame within which the decision will be made. Apart from the provisions relating to assisting requesters, transfers, and extensions of the time frame, other administrative provisions for processing requests are to be found in §§ 16-l 8 of the Act. Section 16 concerns information which is comprised in a document and provides for it to be made available by way of inspection, copy, extract, or written or oral summary, although information is to be made available in the way preferred by the requester unless to do so would impair efficient administration or prejudice some other interest protected by the Act. Section 17 enables information to be deleted from adocument where there is good reason for withholding some, but not all the information in a requested document. Section 18 enables a request to be refused, inter alia, on the grounds that the information requested is or will soon be publicly available; or that the document alleged to contain the information does not exist or cannot be found; or that the information cannot be made available without substantial collation or research. As these are administrative reasons for refusing a request and do not constitute “good reason for withholding” information, the Ombudsmen have consistently held the view that they should not be used in such a way as to frustrate the spirit and intent of the legislation.6 Where a request for official information is refused, $19 of the Act requires that a requester be given the reason for the refusal and advised of the right to complain to
an Ombudsman. The requester is entitled to ask for and be given the grounds in support of the reason, unless to do so would itself prejudice the interests which the Act seeks to protect. As a matter of sound administrative practice, the Ombudsmen believe that wherever possible, the supporting grounds should be given at the same time as the reason for the decision. Such a practice enables the requester to gain a better understanding of and, in some cases at least, accept the decision.
Roleaf the Ombudsmen The Ombudsmen’s role under the Official Information Act is to provide a review of decisions made on requests for information. Spe~~f~~a~~y, they are authorized to investigate and review: * Refusals to provide information requested; Delays in responding to requests; l Extensions of time limits for replying to requests; e Deletions from information provided; a Charges for information; * Release of information on conditions; l Release of information in a manner other than that requested; and * inadequate statements of reasons for a decision or recommendation affecting the requester.
l
An Ombudsman’s role when conducting an investigation and review of a decision to refuse information is to form an opinion as to whether or not the request should have been refused under the Act. In the course of an Ombudsman’s investigation and review of a decision to withhold information, it is for the decision maker to bring forward sufficient material and advance sufficient argument to support the proposition that good reason exists for withholding the information. In other words, the decision maker must justify its decision with sufficient particularity to enable an Ombudsman to form an independent opinion on the complaint. In the case Cammissioner of Police v Ombudsman, Casey J. had this to say: In conducting a review of the decision, the ombudsmen are not engaged in an adversarial exercise. The provisions of the ombudsmen Act apply (section 29 Uffkkd Infarmation Act), and under sections IS and 19 they are given wide powers of inquiry and are not confined to the materiai put before them by those immediately involved. In the nature of things he who alleges that good reason exists for withholding information wattId be expected to bring forward material to support that proposition. But the review is to be conducted and the decision and recommendations made without any presumption other than those specified in the Act. However, in the course of the investigation and review, the relevant Ombudsman must not only consider whether the specific reason relied upon to withhold information applies, but must form a view as to whether or not there is any goad reason under the Act for withholding the reformation. Accordingly, ~though in a particular case
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INFORMATION
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an Ombudsman may not accept the withholding provision relied on by the decision maker as providing good reason to withhold the information, he or she may consider that another withholding provision applies. Countervailing
Public Interest Consideration
(59(l))
As noted above, where a decision maker, or an Ombudsman on review, forms the opinion that one of the withholding provisions in §9(2)(a)-(k) applies to the requested information, 59(l) requires that consideration be given to the question of whether, in the circumstances of the particular case, the interest in withholding the information is outweighed by other considerations that render it desirable in the public interest to make the information available. While 54 of the Act gives some guidance to the types of factors where the public interest in disclosure of the information outweighs the need to withhold, striking the balance between competing interests is not easy and can only be determined in the light of the particular circumstances of the case. For example, timing may be a relevant consideration. In some cases, the public interest may require information to be made available to enable effective public participation in a decisionmaking process.’ In other cases, it may be necessary to protect information until certain decisions have been made, but that protection may no longer be necessary once the decisions have been made.8 Another relevant factor in balancing competing public interest considerations may be the extent to which sufficient information is already publicly available.’ The nature of the information at issue may also be a relevant factor in balancing the need to withhold against countervailing public interest considerations.” Examples of other cases where these factors have been considered can be found in the 10th Compendium of Case Notes of the Ombudsmen, Volume 2.”
OPERATION
OF THE OFFICIAL
INFORMATION
ACT 1982
An examination of the Annual Reports of the Ombudsmen which are tabled in Parliament each year, shows that after nearly 13 years of operation, there continue to be difficulties in ensuring that those who are subject to the Act are aware of its requirements and understand the spirit and intent of the legislation. This is undoubtedly due, in part, to the major and ongoing restructuring which the public sector has been undergoing since 1986 and the loss of many of those public servants who underwent the initial and effective training which the State Services Commission provided when the legislation was first introduced. The “commercialization” of many of the activities formerly undertaken by the Public Service has also created a climate where information which may have been available in the past is now seen as commercially valuable, or where its disclosure would prejudice the commercial interests or activities of the organization which holds it, albeit that the organization is publicly owned. A common criticism by users of the Official Information Act is the time organizations take to respond to requests. Delays have been the subject of critical comment by users and by the Ombudsmen since the Act came into force. References to the need for more timely responses have been made by successive Ombudsmen in their Annual Reports to Parliament, and in an endeavor to ensure that the purposes of the Act were not thwarted by excessive delays, Parliament introduced time limits in the Official
The New Zedand Of~c;a/ ~nformatjon Act
251
Information Amendment Act I987 (see ~~1.5and 15A). At the time the amendments were being debated, concerns were expressed that it would not be desirable for the ZO-workingdays time limit proposed in the amendment to become the norm. One Member said: The provision of 20 working days must be the absolute maximum,
because it would be easy for a government department to specify 20 working days in its manual and for that period to become normal rather than the exception. It should be placed on record that Parliament expects requests for official information that are made to government departments to be treated urgently within a matter of days, not weeks, and that the legislation will again be reviewed if there shoufd be any attempt to make that maximum period of 20 working days normal.
The Act requires a decision on a request to be given”as soon as reasonably practicable, and in any case not Iater than 20 working days after the day on which the request is received,“subject to extension in those circumstances identified in SISA. Similarly, the Act requires responses to requirements of the Ombudsmen to be provided “as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the requirement is received” (§29A), again subject to extension in appropriate circumstances. Various initiatives have been taken by successive Ombudsmen in an endeavor to ensure that requests are processed in a timely manner in accordance with the spirit and intent of the Act. With the demise in 1988 of the Information Authority, the one organization which had a continuing review role disappeared. No other organization has assumed the responsibilities formerly undertaken by the Authority, and it has, therefore, fallen largely to the Ombudsmen to try to develop and maintain an understanding of the principle and purposes of the Act, both among those to whom it applies and with the wider public for whose benefit the legislation was introduced; to encourage a commitment by those to whom the Act applies to its principle and purposes; and to ensure that departments and organizations have adequately trained staff. ‘To this end, the Ombudsmen and their staff have participated in training sessions and seminars on handling official information requests; held many discussions with Chief Executives and senior staff about the application of the legislation; published Practice Guidelines setting out the Ombudsmen’s approach to the Iegislation; and commenced publication of the Quarterly Review (Te Arutake) which provides up-todate commentaries on topical issues that the Ombudsmen have been tailed upon to address. This publication is distributed widely in an effort to keep the public informed on a regular basis about issues before the Ombudsmen. The Ombudsmen have also addressed their own review process with a view to ensuring that unnecessary and avoidable delays do not occur, bearing in mind that by the time a requester seeks a review of a decision, often at least 20 working days are likely to have elapsed since the request was first made. Judicial Reviews There have been three court cases which have provided valuable judicial guidance on the interpretation of the Act. In the first case, C~mm~~si~~er ofPolice v ~m~~dsrna~, Cooke P. said:
If the decision-maker, be he Minister or depa~me~tai head or umbudsman or Judge adjudicating on a claim of denial of right, is In two minds in the end. he should come down on the side of availability of information. I say this . . _ because the Act itself provides guidance in the last limb of 55. (p. 39 1) In
Wyatt Co (N.Z) Ltd v Queenstown-Lakes District Cauncil, Jeffries J. noted: [The] Act requires [the Chief Ombudsman] to exercise his judgment using experience and accumulated knowledge which are his by virtue of the office he holds. Parliament delegated to the Chief Ombudsman tasks, which at times are cumpfex and even agonizing, with no expectation that the Courts would sit on his shoulder about those judgments which are essentially balancing exercises involving competing interests. The Courts will only intervene when the Chief ombudsman is plainly and demonstrably wrong, and not because he preferred one side against another., . . It was accepted that the contract between Wyatt and the council contained a term of confidentiality by the Council.. There cannot be allowed to develop in this country a kind of commercial Alsatia beyond the reach of a statute, Confidentiality is not an absolute concept admitting of no exceptions.... It is an implied term of any contract between individuals that the promises of their contract will be subject to statutory obligations. At a11times the applicant would or should have been aware of the provisions of the Act and in particular $7, which effectively excludes contracts on ~on~dent~ality preventing reIease of information. (page 190, line 42)
The third case which addresses the provisions of the Uffici& I~f~~rnati~n Act is ~~~e~~~~~New Zealand Ltd v U~~~d~r~~u~.i2 In that case, Heron J. noted: The Court does not sit in judgment on the Ombudsman’s decision but can for two reasons express its view. The first is that Judges are regularly called on to examine the probabilities of consequences of disclosure in the commercial environment. The second is that the criticism here is made about the reasonableness of the decision. Referring to it as the nub of the case Mr Mathieson contended that by referring to the case by case approach the Ombudsman shut herself out from considering the hkelihood of disclosure in principle carrying the level of prejudice or disadvantage necessary to involve 59(2)(i). It is true that the final tefter of the Ombudsman to TVNZ does not in its terms address that issue but it was a letter in response to arguments copied by TVNZ from their earlier letter to which the Umbudsman had reptied and there addressed the point. She said, in summary, that based on information she received, a complete prohibition on disclosure was not necessary and she considered that in (sic) case the nctual Information should be examined. My view is that looked at overall the Ombudsman on this critical issue has addressed and answered the argument raised. Any doubt as to this is removed when one looks at her advice to the Tobacco lnstitutc at the conclusion of her inquiry: Waving considered the many points raised 1concluded that although the prospect of having to disclose unpublished material placed TVNZ at a potential disadvantage in its commercial activities, for the “necessity” test under 59(2)(i) to be met in a particular case there had to be a particular reason for nondisclosure of the unpublished material, which related either to the content of the information or to the form in which it was held.
The #NewZealand Off;c;a/ ~nformatjo~Act
This was a stated rejection of unreasonableness is demonstrated point.
253
the no disclosure
FUTURE
by the decision
on principle argument. No the Ombudsman took on this
CHALLENGES
If the underlying objectives of enabling greater public participation in the development of laws and policies and promoting the accountability of Ministers and officials for their actions and decisions are to be achieved, the ongoing challenge for the Ombudsmen is to ensure that they are understood and accepted by those to whom the Act applies. Information management techniques need to have regard to the principle and purposes of the Act with a view to increasing progressively the availability of information, while recognizing those occasions when information needs to be protected. The identification of information which needs lo be protected, in the public interest, will be facilitated if report-writing skills are developed which reflect the official information environment. Reports which address sequentially and separately the issue, the options for addressing it, and then the advice offered on the options ensure that factual information can be separated from advice, thereby enabling relevant withholding provisions to be identified and applied more easily. The Official Information Act is an integral part of the public sector operational environment and must be seen as promoting a greater public understanding of the decision-making process and greater public confidence in public administration. This is likely to be incre~ingiy important as New Zealand moves into the mixed member proportional system environment for electing its Parliament. NOTES AND REFERENCES I. 2.
3. 4. 5. 6.
7. 8.
9. 10. I I.
See Appendix 1, Towards Open Governmew, General Report of the Committee on Official Information presented to the Prime Minister on December 19, 1980, p. 40. Towards open Government, Supplementary Report of the Committee on Official Information presented to the Prime Minister on July 20, 198I. Commissioner of Police Y Ombudsman (1988). 1 NZLR 385. Wyatt Co (NZf Ltd v Queenstown-Lakes District Council (1991), 2 NZLR 180. See Annual Report of the Ombudsmen for the Year Ended 30 June 1994, p. 5 et seq. Practice Guidelines No. 1 [Revisededition No. 21, “Official Information Act 1982and Local government Official Information & Meetings Act 1987-Application of Adminjstrative Provisions,” July 1994. An exampte of such a case is W 1717, 2154, and 2284, 10th Compendjum of Case Notes of” the Ombudsmen, Vol. 2 (April 1993), p. 33. A significant example of such a case is reported at p. 16 et seq. in the Annual Report ofthe Ombudsmen for the Year Ended 30 June 1991. A further example is case W3621, page 48, 10th Compendium of Case Notes of the Ombudsmen, Vol. 2 (April 1993). An example of such a case is W 1089, 8th Compendium of Case Notes qf the Ombudsmen (October 1987), p. 86. An example of such a case is W3649, p, $1, When balancing the competing interests, timing may be a relevant factor. See IOth Compendium of Case Notes of the Ombudsmen, Vol. 2 (April 1993), pp. 33, 43,46, 51, 63, 90, and 95.
Susan Elizabeth Richards* Leo Michael Donnelly
The New Zealand Official Information Act 1982 is of constitutional importance, providing for public access to information held by government departments and organizations and Ministers of the Grown. Fundament~ to the Act is the principle of availability: “information shall be made available unless there is good reason for withholding it.” The withholding provisions identify interests which may need to be protected and may provide good reason to withhold information. Not all interests have the same weight, and some may be outweighed by other public interest considerations favoring disclosure. The Act is information based not document based and requires each request for information to be considered on its merits against its principle, purposes, and withholding provisions. It provides for partial disclosure where some information may need to be protected but there is no good reason to withhold all the information. Major public service restructuring and the “‘commercialization” of many public sector activities have created difficulties in the operation of the Act, but these are addressed on an ongoing basis by the Ombudsmen in order to ensure that the purposes of the Official Information Act are understood and accepted by those to whom it applies. The Act is an integral part of the public sector operational environment and will be increasingly important as New Zealand moves into the mixed member proportional system environment for electing its Parliament.
The Official Information the Act describes it as:
Act 1982 came into effect on July I, 1983. The long title to
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 195 1. * Direct all correspondence to: Susan Elizabeth Richards, Assistant O~bud~~un, Level 14, 70 The Terrace, P.0. Box 10152. Wellington. New Zeakmd. Government
Information
ISSN: 0740-624X.
Quarterly,
Volume
13, Number 3, pages 243-253.
i3@v of the Ombudsman,
244
GOVERNMENT
INFORMATION
QUARTERLY
Vol. 1 ~/NO. 311996
As indicated in the long title, the Act overturned the assumptions inherent in the Official Secrets Act that official information was the property of government and should not be disclosed without specific reason and authorization. In its place, the Official Information Act provides that “information shall be made available unless there is good reason for withholding it.” This principle of availability is contained in section 5 and underpins the philosophy of the Act.
BACKGROUND The legislation had its genesis in two reports prepared by the Committee on Official Information (the Danks Committee) which was tasked by the government in 1978 “to contribute to the larger aim of freedom of information by considering the extent to which official information can be made readily available to the public.“’ The Committee also produced a Supplementary Report* in which it expanded on the general notions outlined in its initial report and set out a draft Bill. In explaining its approach to the task in its General Report, the Committee stated: The assumption on which both the Government and interested groups are now tending to work is that official information should be made available to the public, unless there are good reasons to withhold it in the interests of the community at large. Such good reasons may include national security (both internal and external), public peace and order, economic stability (including industrial relations), commercial transactions, legal privilege (including client relationships), individual privacy, and the effective conduct of government business, as well as the need to ensure the continued availability of information for any of these purposes. We believe that, if they are to be effective, rules for the handling of official information must be brought into line with current attitudes and practices. The law must be such that it commands respect. We therefore consider that the system based on the Official Secrets Act should be replaced by a new set of arrangements. The Government should in our view, reaffirm its responsibility to keep the public informed of its activities and to make official information available unless there is good reason to withhold it. Grounds for withholding information from the public should be set out clearly, along with the basic principle. We do not think that an administrative directive to heads of departments and agencies would meet the need in New Zealand. The changes we propose are of such constitutional importance that they deserve to be given the force of law; in this way the Government and Parliament will provide an assurance to the public that no administrative directive could give. Legislation will also be required to repeal the Official Secrets Act and to replace it with more appropriate measures of protection. We therefore recommend that the proposals put forward below be incorporated in a new Official Information Act, which enshrines the central principle and sets out the grounds for withholding information.
PRINCIPLE
OF AVAILABILITY
The Committee’s recommendation that its proposals be incorporated in legislative form was accepted by the government and by Parliament. The Official Information Act 1982
The New Zealand
Official
information
245
Act
came into force on July 1, 1983. Fundamental in section 5:
to the Act is the principle
of availability
5. Principle of availability-The question of whether any official information is to be made available, where that question arises under this Act, shall be determined, except where this Act otherwise requires, in accordance with the purposes of this Act and the principle that the information shall be made available unless there is good reason for withholding it.
Purposes of the Legislation In addition,
the purposes
of the Act are clearly set out in section 4:
4. Purposes-The purposes of this Act are, consistently Executive Government’s responsibility to Parliament,(a)
with the principle
To increase progressively the availability of official information of New Zealand in order-
of the
to the people
(i)
To enable their more effective participation administration of laws and policies; and
in the
making
and
(ii)
To promote officials,-
of the
Crown
and
the
accountability
and thereby to enhance respect government of New Zealand:
of Ministers
for the law and to promote
(b)
To provide for proper access by each person to official information to that person:
(c)
To protect official information to the extent consistent interest and the preservation of personal privacy.
the good relating
with the public
The principle and purposes of the Act provide a framework or code against which to assess competing public interest considerations. The Act recognizes that there is a balance to be struck between those considerations and, in essence, requires that in every case where a request for official information is being considered, the decision maker must make a judgment as to whether the overall public interest requires disclosure or withholding of the information under consideration. The official information environment is not static and the Act recognizes that public attitudes and expectations change over time. The Act, therefore, contemplates that the availability of official information should increase progressively, thereby promoting increased public participation and transparency in government’s decision-making process. The Act also recognizes that government practices change; for example, §9(2)(f) refers to “the constitutional conventions for the time being.” Constitutional
Significance
As noted by the Danks Committee, the Official Information Act represented a significant constitutional development in New Zealand which was necessary to bring the system for handling official information into line with current attitudes and
practices. The Act recognizes that in a healthy democracy, the public has a legitimate interest in access to worthwhile information about government proposals and policies to facilitate, an the one hand, greater public participation in the formuiatian and development of proposals and, on the other, greater accountability for government’s performance. At the same time, the Act recognizes that there will be times when the arderly process of government requires the withholding of official information. The courts have confirmed the constitutional nature of the Act. In Commissioner qf Police v Ombudsman, McMullin J. said: ~Rdoubted~y the Act has effected an important change in the law of New Zealand. It repeaIed the Ufficiaf Secrets Act 1951 which was based on the British statute of 1911. ft reflects a move towards more open ~ovcr~me~t and recagnizes the desirability, if not the need, in a modern democratic society to make available to a citizen information in which that citizen has a legitimate interest or concern so long as that is consistent with the protection of the State and the preservation of personal privacy. While, in the sense that it balances the interests of the State against those of the private citizen, the Act may be regarded as a statute which bears on constitutional freedoms,. .3
In Wyatt Co (Nz) Ltd v Queenstown-Lakes District Council,4 Jeffries J also observed that both the Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987 are of constitutional significance and that the “Courts must zealously support those quite sweeping Iegisfative intentions. It is fundamental to the Act that the public are to be given worthwhile information about how the public’s money and affairs are being used and conducted, subject only to the statutory restraints and exceptions,“’ The constitutional nature of the Act was brought sharply into focus fallowing the General Election in November 1993 when it was unclear far same time exactly which party would farm the incoming government.5
Scheme of the Act The scope of the Act is very broad. It applies to official informative held by any government department, Minister of the Crown fin his or her official capacity), or government organization and includes information held by any officer, employee, or member of a department or organization in their capacity as such officer, employee, or member; or by an unincorporated body established for the purpose of assisting a department, Minister, or organization; or by an independent contractor engaged by a department, Minister, or organization in their capacity as such contractor. The departments and organizations are listed in Parts I and II of the First Schedule to the Ombudsmen Act and in the First Schedule to the Official Information Act and include state-owned enterprises and their subsidiaries; all state education authorities. including universities, polytechnics, colleges of education, and school boards of trustees; and all state health authorities. Only a iimited amount of ~nfornlation is excluded from the definition of the term “official information” in the Act:
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Official
Information
Act
247
(i) Library or museum material made or acquired and preserved solely for reference or exhibition purposes; (ii) Material placed in the National Library of New Zealand by or on behalf of persons other than Ministers of the Crown in their official capacity or departments; (iii) Any information which is held by a department, Minister of the Crown, or organization solely as an agent or for the sole purpose of safe custody and which is so held on behalf of a person other than a department or a Minister of the Crown in his official capacity or an organization; (iv) Any information held by the Public Trustee or the Maori Trustee in his or her capacity as a trustee within the meaning of the Trustee Act 1956; or in any other fiduciary capacity; (v) Evidence given or submissions boards, or courts of inquiry;
made to a Royal Commission
or commissions,
(vi) Information contained in any correspondence relating to an investigation conducted by an Ombudsman or by the Privacy Commissioner, other than information that came into existence before the commencement of that investigation.
Apart from the foregoing, the Act provides no exclusions for classes of information (e.g., Cabinet papers, Budget documents, and classified documents) held by those who are subject to the Act. Indeed, unlike many overseas freedom of information regimes, the New Zealand Official Information Act is information based, not document based. It applies to information however it is held-that is, whether in documentary form or otherwise. The starting point for the decision maker, when considering a request, is to assess what the result of disclosure of that information would be. If the assessment is that disclosure would result in some detrimental effect, the decision maker must then consider whether that detriment is reflected in any of the withholding provisions in the Act. If disclosure would prejudice one of the interests which the Act identifies as possible grounds for withholding, then depending on the nature and extent of the prejudice, the decision maker must decide whether to withhold the information. In each case when considering a request for official information the decision maker must exercise his or her judgment having regard to the merits and particular circumstances of the case. Withholding
Provisions
Sections 6, 7, and 9 of the Act identify interests which may need to be protectedthat is, circumstances in which it may be in the public interest not to disclose information. The Act does not treat the interests which may need protection equally. For example, 56 identifies interests such as the security or defense of New Zealand, international relations, and the maintenance of the law and provides that where disclosure of information “would be likely” to prejudice one of those interests, good reason for withholding that information exists. The Court of Appeal has interpreted the phrase “would be likely” to mean “a serious or real and substantial risk to a protected
248
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QUARTERLY
Vol. 13iNo. 30996
interest, a risk that might well eventuate” (Commissioner of Police v ~~~~ds~~n). If that test is met in a particular case, then the information may be withheld. On the other hand, 59 identifies a number of interests-such as privacy, commercial activities, constitutional conventions, the effective conduct of public affairs, and legal professional privilege-which may need to be protected. However, where the assessment is made that disclosure of information would prejudice one of the interests identified in 59(2)(a)-(k), that is not the end of the matter. The decision maker must go on and consider whether there are any other factors which, in the public interest, outweigh the need to withhold the information. In other words, those interests are subject to countervailing public interest considerations favoring disclosure.
Processing Requestsfor Off i&al Information Under !j 12 of the Act, “any person”, as defined in $§( 1) of that section, “may request a department or Minister of the Crown or organisation to make available to him or it any specified official information” and “[tlhe official information requested shall be specified with due particularity in the request.” In other words, the recipient of a request must be able to identify the information requested. If a request is unclear, the Act requires the recipient to provide reasonable assistance to the requester to try to identify the information being sought (§13), and it also provides for the transfer of requests to the relevant organizations in appropriate cases ($14). Decisions on requests are to be made “as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the request is received.” However, where a large quantity of information is requested or a search through a large quantity of information is necessary, or where consultations are necessary and the request cannot therefore reasonably be answered within 20 working days, the maximum time limit for response can be extended beyond 20 working days so long as the requester is notified of the extended time frame within which the decision will be made. Apart from the provisions relating to assisting requesters, transfers, and extensions of the time frame, other administrative provisions for processing requests are to be found in §§ 16-l 8 of the Act. Section 16 concerns information which is comprised in a document and provides for it to be made available by way of inspection, copy, extract, or written or oral summary, although information is to be made available in the way preferred by the requester unless to do so would impair efficient administration or prejudice some other interest protected by the Act. Section 17 enables information to be deleted from adocument where there is good reason for withholding some, but not all the information in a requested document. Section 18 enables a request to be refused, inter alia, on the grounds that the information requested is or will soon be publicly available; or that the document alleged to contain the information does not exist or cannot be found; or that the information cannot be made available without substantial collation or research. As these are administrative reasons for refusing a request and do not constitute “good reason for withholding” information, the Ombudsmen have consistently held the view that they should not be used in such a way as to frustrate the spirit and intent of the legislation.6 Where a request for official information is refused, $19 of the Act requires that a requester be given the reason for the refusal and advised of the right to complain to
an Ombudsman. The requester is entitled to ask for and be given the grounds in support of the reason, unless to do so would itself prejudice the interests which the Act seeks to protect. As a matter of sound administrative practice, the Ombudsmen believe that wherever possible, the supporting grounds should be given at the same time as the reason for the decision. Such a practice enables the requester to gain a better understanding of and, in some cases at least, accept the decision.
Roleaf the Ombudsmen The Ombudsmen’s role under the Official Information Act is to provide a review of decisions made on requests for information. Spe~~f~~a~~y, they are authorized to investigate and review: * Refusals to provide information requested; Delays in responding to requests; l Extensions of time limits for replying to requests; e Deletions from information provided; a Charges for information; * Release of information on conditions; l Release of information in a manner other than that requested; and * inadequate statements of reasons for a decision or recommendation affecting the requester.
l
An Ombudsman’s role when conducting an investigation and review of a decision to refuse information is to form an opinion as to whether or not the request should have been refused under the Act. In the course of an Ombudsman’s investigation and review of a decision to withhold information, it is for the decision maker to bring forward sufficient material and advance sufficient argument to support the proposition that good reason exists for withholding the information. In other words, the decision maker must justify its decision with sufficient particularity to enable an Ombudsman to form an independent opinion on the complaint. In the case Cammissioner of Police v Ombudsman, Casey J. had this to say: In conducting a review of the decision, the ombudsmen are not engaged in an adversarial exercise. The provisions of the ombudsmen Act apply (section 29 Uffkkd Infarmation Act), and under sections IS and 19 they are given wide powers of inquiry and are not confined to the materiai put before them by those immediately involved. In the nature of things he who alleges that good reason exists for withholding information wattId be expected to bring forward material to support that proposition. But the review is to be conducted and the decision and recommendations made without any presumption other than those specified in the Act. However, in the course of the investigation and review, the relevant Ombudsman must not only consider whether the specific reason relied upon to withhold information applies, but must form a view as to whether or not there is any goad reason under the Act for withholding the reformation. Accordingly, ~though in a particular case
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250
INFORMATION
QUARTERLY
Vol. 1 ~/NO. 3/l 996
an Ombudsman may not accept the withholding provision relied on by the decision maker as providing good reason to withhold the information, he or she may consider that another withholding provision applies. Countervailing
Public Interest Consideration
(59(l))
As noted above, where a decision maker, or an Ombudsman on review, forms the opinion that one of the withholding provisions in §9(2)(a)-(k) applies to the requested information, 59(l) requires that consideration be given to the question of whether, in the circumstances of the particular case, the interest in withholding the information is outweighed by other considerations that render it desirable in the public interest to make the information available. While 54 of the Act gives some guidance to the types of factors where the public interest in disclosure of the information outweighs the need to withhold, striking the balance between competing interests is not easy and can only be determined in the light of the particular circumstances of the case. For example, timing may be a relevant consideration. In some cases, the public interest may require information to be made available to enable effective public participation in a decisionmaking process.’ In other cases, it may be necessary to protect information until certain decisions have been made, but that protection may no longer be necessary once the decisions have been made.8 Another relevant factor in balancing competing public interest considerations may be the extent to which sufficient information is already publicly available.’ The nature of the information at issue may also be a relevant factor in balancing the need to withhold against countervailing public interest considerations.” Examples of other cases where these factors have been considered can be found in the 10th Compendium of Case Notes of the Ombudsmen, Volume 2.”
OPERATION
OF THE OFFICIAL
INFORMATION
ACT 1982
An examination of the Annual Reports of the Ombudsmen which are tabled in Parliament each year, shows that after nearly 13 years of operation, there continue to be difficulties in ensuring that those who are subject to the Act are aware of its requirements and understand the spirit and intent of the legislation. This is undoubtedly due, in part, to the major and ongoing restructuring which the public sector has been undergoing since 1986 and the loss of many of those public servants who underwent the initial and effective training which the State Services Commission provided when the legislation was first introduced. The “commercialization” of many of the activities formerly undertaken by the Public Service has also created a climate where information which may have been available in the past is now seen as commercially valuable, or where its disclosure would prejudice the commercial interests or activities of the organization which holds it, albeit that the organization is publicly owned. A common criticism by users of the Official Information Act is the time organizations take to respond to requests. Delays have been the subject of critical comment by users and by the Ombudsmen since the Act came into force. References to the need for more timely responses have been made by successive Ombudsmen in their Annual Reports to Parliament, and in an endeavor to ensure that the purposes of the Act were not thwarted by excessive delays, Parliament introduced time limits in the Official
The New Zedand Of~c;a/ ~nformatjon Act
251
Information Amendment Act I987 (see ~~1.5and 15A). At the time the amendments were being debated, concerns were expressed that it would not be desirable for the ZO-workingdays time limit proposed in the amendment to become the norm. One Member said: The provision of 20 working days must be the absolute maximum,
because it would be easy for a government department to specify 20 working days in its manual and for that period to become normal rather than the exception. It should be placed on record that Parliament expects requests for official information that are made to government departments to be treated urgently within a matter of days, not weeks, and that the legislation will again be reviewed if there shoufd be any attempt to make that maximum period of 20 working days normal.
The Act requires a decision on a request to be given”as soon as reasonably practicable, and in any case not Iater than 20 working days after the day on which the request is received,“subject to extension in those circumstances identified in SISA. Similarly, the Act requires responses to requirements of the Ombudsmen to be provided “as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the requirement is received” (§29A), again subject to extension in appropriate circumstances. Various initiatives have been taken by successive Ombudsmen in an endeavor to ensure that requests are processed in a timely manner in accordance with the spirit and intent of the Act. With the demise in 1988 of the Information Authority, the one organization which had a continuing review role disappeared. No other organization has assumed the responsibilities formerly undertaken by the Authority, and it has, therefore, fallen largely to the Ombudsmen to try to develop and maintain an understanding of the principle and purposes of the Act, both among those to whom it applies and with the wider public for whose benefit the legislation was introduced; to encourage a commitment by those to whom the Act applies to its principle and purposes; and to ensure that departments and organizations have adequately trained staff. ‘To this end, the Ombudsmen and their staff have participated in training sessions and seminars on handling official information requests; held many discussions with Chief Executives and senior staff about the application of the legislation; published Practice Guidelines setting out the Ombudsmen’s approach to the Iegislation; and commenced publication of the Quarterly Review (Te Arutake) which provides up-todate commentaries on topical issues that the Ombudsmen have been tailed upon to address. This publication is distributed widely in an effort to keep the public informed on a regular basis about issues before the Ombudsmen. The Ombudsmen have also addressed their own review process with a view to ensuring that unnecessary and avoidable delays do not occur, bearing in mind that by the time a requester seeks a review of a decision, often at least 20 working days are likely to have elapsed since the request was first made. Judicial Reviews There have been three court cases which have provided valuable judicial guidance on the interpretation of the Act. In the first case, C~mm~~si~~er ofPolice v ~m~~dsrna~, Cooke P. said:
If the decision-maker, be he Minister or depa~me~tai head or umbudsman or Judge adjudicating on a claim of denial of right, is In two minds in the end. he should come down on the side of availability of information. I say this . . _ because the Act itself provides guidance in the last limb of 55. (p. 39 1) In
Wyatt Co (N.Z) Ltd v Queenstown-Lakes District Cauncil, Jeffries J. noted: [The] Act requires [the Chief Ombudsman] to exercise his judgment using experience and accumulated knowledge which are his by virtue of the office he holds. Parliament delegated to the Chief Ombudsman tasks, which at times are cumpfex and even agonizing, with no expectation that the Courts would sit on his shoulder about those judgments which are essentially balancing exercises involving competing interests. The Courts will only intervene when the Chief ombudsman is plainly and demonstrably wrong, and not because he preferred one side against another., . . It was accepted that the contract between Wyatt and the council contained a term of confidentiality by the Council.. There cannot be allowed to develop in this country a kind of commercial Alsatia beyond the reach of a statute, Confidentiality is not an absolute concept admitting of no exceptions.... It is an implied term of any contract between individuals that the promises of their contract will be subject to statutory obligations. At a11times the applicant would or should have been aware of the provisions of the Act and in particular $7, which effectively excludes contracts on ~on~dent~ality preventing reIease of information. (page 190, line 42)
The third case which addresses the provisions of the Uffici& I~f~~rnati~n Act is ~~~e~~~~~New Zealand Ltd v U~~~d~r~~u~.i2 In that case, Heron J. noted: The Court does not sit in judgment on the Ombudsman’s decision but can for two reasons express its view. The first is that Judges are regularly called on to examine the probabilities of consequences of disclosure in the commercial environment. The second is that the criticism here is made about the reasonableness of the decision. Referring to it as the nub of the case Mr Mathieson contended that by referring to the case by case approach the Ombudsman shut herself out from considering the hkelihood of disclosure in principle carrying the level of prejudice or disadvantage necessary to involve 59(2)(i). It is true that the final tefter of the Ombudsman to TVNZ does not in its terms address that issue but it was a letter in response to arguments copied by TVNZ from their earlier letter to which the Umbudsman had reptied and there addressed the point. She said, in summary, that based on information she received, a complete prohibition on disclosure was not necessary and she considered that in (sic) case the nctual Information should be examined. My view is that looked at overall the Ombudsman on this critical issue has addressed and answered the argument raised. Any doubt as to this is removed when one looks at her advice to the Tobacco lnstitutc at the conclusion of her inquiry: Waving considered the many points raised 1concluded that although the prospect of having to disclose unpublished material placed TVNZ at a potential disadvantage in its commercial activities, for the “necessity” test under 59(2)(i) to be met in a particular case there had to be a particular reason for nondisclosure of the unpublished material, which related either to the content of the information or to the form in which it was held.
The #NewZealand Off;c;a/ ~nformatjo~Act
This was a stated rejection of unreasonableness is demonstrated point.
253
the no disclosure
FUTURE
by the decision
on principle argument. No the Ombudsman took on this
CHALLENGES
If the underlying objectives of enabling greater public participation in the development of laws and policies and promoting the accountability of Ministers and officials for their actions and decisions are to be achieved, the ongoing challenge for the Ombudsmen is to ensure that they are understood and accepted by those to whom the Act applies. Information management techniques need to have regard to the principle and purposes of the Act with a view to increasing progressively the availability of information, while recognizing those occasions when information needs to be protected. The identification of information which needs lo be protected, in the public interest, will be facilitated if report-writing skills are developed which reflect the official information environment. Reports which address sequentially and separately the issue, the options for addressing it, and then the advice offered on the options ensure that factual information can be separated from advice, thereby enabling relevant withholding provisions to be identified and applied more easily. The Official Information Act is an integral part of the public sector operational environment and must be seen as promoting a greater public understanding of the decision-making process and greater public confidence in public administration. This is likely to be incre~ingiy important as New Zealand moves into the mixed member proportional system environment for electing its Parliament. NOTES AND REFERENCES I. 2.
3. 4. 5. 6.
7. 8.
9. 10. I I.
See Appendix 1, Towards Open Governmew, General Report of the Committee on Official Information presented to the Prime Minister on December 19, 1980, p. 40. Towards open Government, Supplementary Report of the Committee on Official Information presented to the Prime Minister on July 20, 198I. Commissioner of Police Y Ombudsman (1988). 1 NZLR 385. Wyatt Co (NZf Ltd v Queenstown-Lakes District Council (1991), 2 NZLR 180. See Annual Report of the Ombudsmen for the Year Ended 30 June 1994, p. 5 et seq. Practice Guidelines No. 1 [Revisededition No. 21, “Official Information Act 1982and Local government Official Information & Meetings Act 1987-Application of Adminjstrative Provisions,” July 1994. An exampte of such a case is W 1717, 2154, and 2284, 10th Compendjum of Case Notes of” the Ombudsmen, Vol. 2 (April 1993), p. 33. A significant example of such a case is reported at p. 16 et seq. in the Annual Report ofthe Ombudsmen for the Year Ended 30 June 1991. A further example is case W3621, page 48, 10th Compendium of Case Notes of the Ombudsmen, Vol. 2 (April 1993). An example of such a case is W 1089, 8th Compendium of Case Notes qf the Ombudsmen (October 1987), p. 86. An example of such a case is W3649, p, $1, When balancing the competing interests, timing may be a relevant factor. See IOth Compendium of Case Notes of the Ombudsmen, Vol. 2 (April 1993), pp. 33, 43,46, 51, 63, 90, and 95.