Our Ref: 7.00341
10 December 2010
Law Commission
PO Box 2590
Wellington
6011
[email address]
Dear Mr Burrows
Bay of Plenty Regional Council’s submission to the: Review of information Legislation
Thank you for the opportunity to comment on the Review of Information Legislation. Bay of Plenty
Regional Council wishes to reserve the right to present our submission in person.
For
matters
relating
to
this
submission,
please
contact
Fiona
Badenhorst
at
[email address] or 0800 368 288 ext. 9328.
Our Organisation
The Bay of Plenty Regional Council is responsible for the sustainable management of resources
within the Bay of Plenty region. Our Council works to manage peoples’ effects on freshwater, land,
air and coastal water under the Resource Management Act (1991).
We also have a broader responsibility working with district councils in the area, for the economic,
social and cultural well-being of communities in the Bay of Plenty region.
Summary
We support the general intent of this document. Please find our detailed comments on specific
questions attached. We trust you find them constructive.
Yours sincerely,
Mary-Anne Macleod
Group Manager Strategic Development
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BAY OF PLENTY REGIONAL COUNCIL SUBMISSION TO THE: Review of Official Information Legislation
BAY OF PLENTY REGIONAL COUNCIL SUBMISSION TO THE: Review of Official Information Legislation
Reference to the document
BAY OF PLENTY REGIONAL COUNCIL - Comments & Recommendations
Question 1
The Regional Council agrees that a full schedule would clearly identify for public and
local authorities what agencies information public have access to under the act.
Do you agree that the schedules to each Act Trade Secret
in Official Information Act 1982 (OIA) and Local
Government Official Information and Meetings Act 1987
(LGOIMA) should list every agency that they cover?
Question 2
We are in agreement as this will support consistency and clarity
Do you agree that the schedules to the OIA and LGOIMA
should be examined to eliminate anomalies and ensure all
relevant bodies are included?
The Regional Council is of the opinion that responses to OIA requests can present an
Question 3
administrative burden and a risk of the accidental divulgence of items of commercially
Do you agree that State Owned Enterprises (SOE) and
sensitivity not present in the private sector/competition. Administrators of OIA
other crown entity companies should remain within the
requests are rarely legal experts. There would be public benefit and organisational
scope of the OIA
efficiency in putting in place clear guidelines where possible, identifying what is open
for disclosure and what is clearly exempt from assessment for disclosure purposes
especially where this exemption exists via other legislation or where information is
publicly available already due to other legislative requirements. Ie Clear guidelines
could be readily available for State Owned Enterprises (SOE) and crown entities
identifying classes of information that will not require individual document review and
consideration for release under OIA.
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BAY OF PLENTY REGIONAL COUNCIL SUBMISSION TO THE: Review of Official Information Legislation
Reference to the document
BAY OF PLENTY REGIONAL COUNCIL - Comments & Recommendations
The Regional Council is of the opinion responses to LGOIMA requests can present an
Question 4
administrative burden and a risk of the accidental divulgence of items of commercially
Do you agree that council controlled organisations should sensitivity not present in the private sector/competition. Administrators of LGOIMA
remain within the scope of the LGOIMA?
requests are rarely legal experts. There would be public benefit and organisational
efficiency in putting in place clear guidelines where possible, identifying what is open
for disclosure and what is clearly exempt from assessment for disclosure purposes
especially where this exemption exists via other legislation or where information is
publicly available already due to other legislative requirements. Ie Clear guidelines
could be readily available for Council Controlled Organisations (CCO’s), Council
Controlled Trading Organisation (CCTO’s) etc identifying classes of information that
will not require individual document review and consideration for release under OIA.
We are in agreement as this will support consistency and clarity
Question 6
Do you agree that the OIA should specify what information
relating to the operation of the Courts is covered by the
Act?
Question 7
We agree and the Regional Council is of the opinion that there is inadequate
protection against the provision of lists of details held in corporate databases where
Should any further categories of information be expressly
these databases are not “public registers” with specific protection grounds already
excluded from the OIA and the LGOIMA?
enacted.
E.g. There does not appear to be any protection for resource consent
holders etc that prevents a list of consent holders and consent locations from being
distributed. This by default provides the ability for targeted advertising or harassment
of these parties.
The Regional Council is aware that the Ombudsmen advocates for provision of these
details. This organisation would support an amendment specifying the purposes for
which this type of information can be released. Consent applicants are required to
provide these details. Once in the custody of the organisation it would be desirable to
have a mechanism to improve the balance between the public’s right to know and the
protection and privacy of the parties involved. This organisation does not seek to
over-ride the RMA’s requirement to hold and have available details of consents or
provide information relevant to an area or consent type. The purpose is to prevent a
convenient list being provided to any requestor regardless of their intent.
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BAY OF PLENTY REGIONAL COUNCIL SUBMISSION TO THE: Review of Official Information Legislation
Reference to the document
BAY OF PLENTY REGIONAL COUNCIL - Comments & Recommendations
Question 8
We agree in part that some clear exceptions and categories would support time saving
and minimise risks around commercial sensitivity especially with SOE’s, CCO’s etc.
Do you agree that the OIA and the LGOIMA should Some exceptions around emails which are essentially notes rather than information
continue to be based on case-by-case model
would also benefit time efficiencies for the organisation actioning the request and
ensure the requestor is not charged for and provided with irrelevant items.
Question 9
We agree in part that more guidance would be of significant value in creating
consistency and fairness and minimising confusion. These guidelines need to be well
Do you agree that more clarity and certainty about the indexed and readily accessible as it is currently difficult to find specific assistance
official information withholding grounds can be gained even though it may be available on the Ombudsmen’s website or elsewhere.
through enhanced guidance rather than prescriptive rules? However guidance is not legislation and there is some security in having requirements
Redrafting the grounds or prescribing what information clearly available in law. BOPRC has commented on some areas where they believe
should be released in regulation.
legal specificity may be the safer approach.
Question 10
We agree that a user friendly plain English version would be of benefit for consistency
and clarity in application. Would need to include summaries as reasoning can be
Do you agree there should be a compilation, analysis of quite complex.
and commentary on the case notes of the Ombudsman?
Question 11
We agree that it needs to be simple/well indexed/user friendly to encourage greater
reliance by those applying legislation
Do you agree there should be greater access to and
reliance on case notes as precedents?
Question 12
The Regional Council support this as it will improve confidence in application of
guidelines.
Do you agree there should be reformulation of the
guidelines with greater use of case examples?
Question 13
The Council support this concept. This organisation would also like to have available
ongoing opportunity for users to submit on improvements to ensure the website is user
Do you agree there should be a dedicated and accessible friendly for the authorities entrusted with carrying out OIA and LGOIMA requests.
official information website
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BAY OF PLENTY REGIONAL COUNCIL SUBMISSION TO THE: Review of Official Information Legislation
Reference to the document
BAY OF PLENTY REGIONAL COUNCIL - Comments & Recommendations
Question14 - 15
The Bay of Plenty Regional Council (BOPRC) believes that the proposed reformulated
provisions more clearly support the ability of members and employees to
Q14
communicate in an unsterilized manner. Honest opinion and advice will support
Do you agree that the “good government” withholding better decision making.
grounds should be redrafted?
Q15
What are your views on the proposed reformulated
provisions relating to the “good government” ground
Question 18
The Regional Council would support and amendment to include interpretation of
OIA/LGOIMA and clarification around intellectual property would be more accessible.
Do you think the trade secrets and confidentiality
withholding grounds should be amended for clarification?
This organisation submits that explicit mention in OIA section 9(2)(ba)(i) and LGOIMA
section 7(2)(c) to include information created internally that should have an obligation
of confidence would provide better protection and confidence for public dealing with
Government and Council on sensitive issues
Question 19
In the experience of this organisation there are organisations that have a standard
practice of placing confidentiality clauses on their documentation. Outsourcing of
Do you agree that the official information legislation should activities and research undertaken on behalf of the public should not remove the
continue to apply to information in which intellectual public’s right to the information.
property is held by a third party?
Question 21
We support public interest factors relevant to be taken into consideration in decision
making in the form of guidelines rather than prescriptive legislation. There are factors
Do you think the public interest factors relevant to to be considered in all aspects of information requests not just commercial
disclosure of commercial information should be included in information. It is likely legislative prescription in this area would necessitate
guidelines or in the legislation?
comprehensive documentation on the part of the organisation actioning the request to
provide proof of the decision making process.
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BAY OF PLENTY REGIONAL COUNCIL SUBMISSION TO THE: Review of Official Information Legislation
Reference to the document
BAY OF PLENTY REGIONAL COUNCIL - Comments & Recommendations
Question 22
Yes the Regional Council has some difficulty in accurately assessing whether specific
data is of commercial sensitivity in cases where industry specific knowledge is
Do you experience any other problems with the commercial required that is not available in house. Working in partnership with the information
withholding grounds?
provider can be a juggling act between them wanting to with-hold everything and the
requirement to assess content and provide all information possible.
Lack of confidence in BOPRC’s ability to protect items of commercial sensitivity can
affect customers will to provide full information.
Question 23 - 25 Q23
In relation to privacy in general BOPRC wishes to comment that this organisation does
not consider it to be in the interests of shared services for Local Authorities to be
Which option do you support for improving the privacy
prevented from sharing information in the form of electronic data that may be obtained
withholding ground:
from a public register where the sharing of that information will constitute more
Option 1 – guidance only, or;
effective use of existing (public) resources. Although this sharing is protected by
Option 2 – an “unreasonable disclosure of information”
clauses in legislation relevant to each register a remedy for limited disclosure to other
amendment while retaining the public interest balancing
local authorities under LGOIMA would be useful.
test, or;
Option 3 – an amendment to align with principle 11 of the
Privacy Act 1993 while retaining the public interest test, or;
Option 4 – any other solutions?
Q24
Do you think there should be amendments to the Acts in
relation to the privacy interests of:
(a) deceased persons?
(b) children?
Q25
Do you have any views on public sector agencies using the
OIA to gather personal information about individuals?
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BAY OF PLENTY REGIONAL COUNCIL SUBMISSION TO THE: Review of Official Information Legislation
Reference to the document
BAY OF PLENTY REGIONAL COUNCIL - Comments & Recommendations
Question 27
The Regional Council supports (a) and (b), a clear mandate to consider the safety of
parties providing information to local and central government before its disclosure
Do you think there should be new withholding grounds to
should be available. It is a responsible position for this legislation to take.
cover:
(a) harassment;
Although the Resource Management Act (RMA) and LGOIMA provide protection from
(b) the protection of cultural values;
disclosure for some aspects of cultural importance (specifically Waahi Tapu) BOPRC
(c) anything else?
does not believe this goes far enough. It is in the community’s interest to encourage
the sharing of information in order to protect areas of cultural significance.
The BOPRC has received legal advice that the RMA and LGOIMA do not provide
enough protection to prevent the disclosure of this type of information under LGOIMA.
This legal issue has prevented Iwi sharing formation with Council in some cases. It
also reduces the level of trust. An addition criteria as suggested for withholding
information that may “threaten the control over and or the integrity of Maori or other
traditional knowledge or other culturally sensitive material” would present opportunities
for improved and constructive knowledge sharing between BOPRC and Maori Groups
in the region.
Question 28
We support that an amendment as proposed will provide more clarity to the public and
reduce instances of public feeling they are the victims of staff tactics.
Do you agree that the “will soon be publicly available”
ground should be amended as proposed?
Question 36
We agree that requesters may not understand the implications of their request.
Consultation with the requestor to clarify their request where it may involve large
Do you agree that agencies should be required to consult amounts of information will reduce unnecessary time for the organisation and expense
with requesters in the case of requests for large amounts of for the requestor. Changing the wording to “should” places a more direct obligation to
information?
consult which will benefit all parties.
Question 37
We agree that the intent of the amendment is supported however it may be in the
public interest to also specify what constitutes acceptance. A timeframe of less than
Do you agree the Acts should clarify that the 20 working 20 days may be set to prescribe the period within which council may return to the
day limit for requests delayed by lack of particularity should applicant for due particularity
start when the request has been accepted?
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BAY OF PLENTY REGIONAL COUNCIL SUBMISSION TO THE: Review of Official Information Legislation
Reference to the document
BAY OF PLENTY REGIONAL COUNCIL - Comments & Recommendations
Question 38
The Regional Council agrees that review and assessment are the most significant
Do you agree that substantial time spent in “review” and time factors in a number of more complex requests; these actions are required by the
“assessment” of material should be taken into account in act and should be considered in relation to the organisations ability to comply with a
assessing whether material can be released, and that the request.
Acts should be amended to make that clear?
Question 42
We agree that vexatious could be better defined in plain English to reflect the intent of
removing individual’s ability to create nuisance and unnecessary expense. It is
Do you agree that the term “vexatious” should be defined in unclear whether the terms bad faith or not in good faith would provide this.
the Acts to include the element of bad faith?
Question 43
This organisation is in agreement with question 42. However we believe the ability to
decline a request in situations where substantially the same information has already
Do you agree that an agency should be able to decline a been provided, should include a requirement to consult with the requestor as to the
request for information if the same or substantially the reasons for the similar request. The initial or subsequent request may not have been
same information has been provided, or refused, to that interpreted by the organisation in the way the requestor meant.
requester in the past?
Question 45
The Regional Council does not agree and is of the opinion that rather than require
requestors to state their purpose, guidelines should be in place or the act should state
Do you agree that, as at present, requesters should not be that responding organisations are able to enquire as to the purpose of the request.
required to state the purpose for which they are requesting The requestor may or may not be required to respond. A name should be required
official information nor to provide their real name?
regardless of whether it is false. A name is a point of reference and provision of
information to unnamed parties reduces the organisations ability to consult with the
party on aspects of the request and advice of costs etc.
Question 46
The BOPRC agrees that it may not be necessary to specify, oral vs. written especially
in the age of changing technologies where further grey areas may arise. “Any request
Do you agree the Acts should state that requests can be in any form for information received by a local authority/government department is a
oral or in writing, and that the requests do not need to refer LGOIMA/OIA request and subject to the requirements of the act.”
to the relevant official information legislation?
Question 47
The BOPRC supports that having a central place for public to go and providing
agencies subject to LGOIMA and OIA with the ability to provide the link from their own
Do you agree that more accessible guidance should be website will help requestors and responding agencies.
available for requesters?
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BAY OF PLENTY REGIONAL COUNCIL SUBMISSION TO THE: Review of Official Information Legislation
Reference to the document
BAY OF PLENTY REGIONAL COUNCIL - Comments & Recommendations
Question 48
This organisation agrees that if the research is showing that the current time limit is
largely being met an amendment is not necessary. In the case of BOPRC where the
Do you agree the 20 working day time limit should be
number of requests put pressure on time and resource, the 20 days timeframe is
retained for making a decision?
practical for the purposes of most requests. Although the majority of requests are
processed in well under the 20 days a reduced timeframe would create additional
administrative burden in situations where extensions are required. We are unable to
see a tangible benefit in a change.
Question 52
We agree that entering into a debate with requestors regarding timing of response is
not productive or good for relationships. Recourse through the Ombudsmen is
Do you agree there is no need for an express power to adequate if the requestor is unhappy with a time extension.
extend the response time limit by agreement?
Question 53
The BOPRC agrees that a maximum extension time may result in more requests for
information being refused on the grounds of substantial collation and research as the
Do you agree the maximum extension time should continue use of this provision may be a matter of available resourcing within the given
to be flexible without a specific time limit set out in statute?
timeframe.
Question 57
The BOPRC agrees in part that it is fair to give prior notice to third parties where they
have significant interest. This places another burden of assessment on the authority
Do you agree there should be a requirement to give prior responding to the request and the timeframe of the response can become dependant
notice of release where there are significant third party on the third party while the agency is accountable for meeting the timeframe.
interests at stake?
Any requirement to give prior notice should only be applicable to situations where
good reason exists to with-hold the information but the information may be released
due to overriding public interest. The requirement should include consultation with the
third party not just “notice” and the ability for the third party to go to the Ombudsman
with concerns before the release of information.
Question 58
We recommend that 5 working days for review and consultation by third parties.
How long do you think the notice to third parties should be?
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BAY OF PLENTY REGIONAL COUNCIL SUBMISSION TO THE: Review of Official Information Legislation
Reference to the document
BAY OF PLENTY REGIONAL COUNCIL - Comments & Recommendations
Question 62
The BOPRC suggests that it is unfair to assume the format that is convenient for the
releasing agency is practical for the requestor. Providing information in a format that
Do you think that whether information is released in the requestor is unable to use is essentially refusing their request for information.
electronic form should continue to depend on the
preference of the requester?
Question 63
The Public Records Act requires agencies to create and maintain accessible records.
BOPRC suggests that changes to OIA and LGOIMA should not conflict with this. Any
Do you think the Acts should make specific provision for specific exclusion of metadata from official information requests should be carefully
metadata, information in backup systems and information defined to ensure the provision does not exclude the use of metadata where it can
inaccessible without specialist expertise?
more easily be used to present information.
Question 64
The Ministry of Justice Charging Guidelines allow for recovery of photocopying costs,
the BOPRC agrees that this is a good indicator that it is fair
Should hard copy costs ever be recoverable if requesters
select hard copy over electronic supply of the information?
Question 66 and 67 Q66
The Regional Council supports that there should be clear consistent charging
Do you agree there should be regulations laying down a
guidelines. Charge amounts do not need to be in statute but the authority responsible
clear charging framework for both the OIA and the
for prescribing the rate should be referenced in both LGOIMA and OIA and required to
LGOIMA?
set and review the rate.
Q67
We would support rules based on categories of request but not categories of
Do you have any comment as to what the framework requestor as this would encourage requestors to mislead agencies about their
should
be
and
who
should
be
responsible
for purpose and identity.
recommending it?
Question 85
We do not agree and the
BOPRC considers current reporting requirements to be
Do you think there should be any further mandatory sufficient. Further requirements for pro-active disclosure would place further burden
categories of information subject to a proactive disclosure on resources particularly affecting smaller authorities in the BOP region.
requirement in the OIA or LGOIMA?
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BAY OF PLENTY REGIONAL COUNCIL SUBMISSION TO THE: Review of Official Information Legislation
Reference to the document
BAY OF PLENTY REGIONAL COUNCIL - Comments & Recommendations
Question 90
We agree that pro-active disclosure is a commendable goal but the current
environment does not allow for the additional administrative costs disclosure logs
Do you agree that disclosure logs should not be would create. The current legislation does not provide protection for pro-active
mandatory?
release, BOPRC assumes this would hold true of information disclosed via logs.
We suggest that disclosure logs being so readily accessible have more risk to their
subjects than specific release to specific requestors. Given the risk and the cost, the
decision to publish disclosure logs should be left to each agency.
Question 91
The Regional Council agrees that it is appropriate under the current OIA and LGOIMA
that these sections do not apply to pro-active release. A very high duty of care and
Do you agree that section 48 of the OIA and section 41 of responsibility should be taken in pro-active release of information
the
LGOIMA
which
protect
agencies
from
court
proceedings should not apply to proactive release
?
If there is a desire or legal directive to increase pro-active release by government
agencies it is inconsistent and unfair not to provide some protection in law to
encourage responsible pro-active disclosure.
Question 92
The BOPRC supports the addition of this function as it has the potential to support
better understanding, consistency in application, improved compliance and better
Do you agree that the OIA and the LGOIMA should service to requestors. Also has potential to reduce time spent on internal and inter-
expressly include a function of providing advice and agency discussions on appropriate application of the acts and provide more
guidance to agencies and requesters?
confidence to agencies in the appropriateness of their information provision.
Question 93
Given that LGOIMA applies to all requests for information to a local authority, any staff
member from front line support through to the Chief Executive may be answering
Do you agree that the OIA and LGOIMA should include a requests under LGOIMA on any given day. A central agency responsible for training
function of promoting awareness and understanding and and education will enhance organisations ability to up skill staff and provide
encouraging education and training?
organisations with the correct information and confidence to communicate LGOIMA
requirements and improve procedures and knowledge internally.
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BAY OF PLENTY REGIONAL COUNCIL SUBMISSION TO THE: Review of Official Information Legislation
Reference to the document
BAY OF PLENTY REGIONAL COUNCIL - Comments & Recommendations
Question 94 and 95 Q94
Although the BOPRC supports the concept of monitoring and reporting on the
application of the act there are concerns around the practicality of obtaining accurate
Do you agree that an oversight agency should be required
statistics on requests. Given the broad application of the LGOIMA and OIA in regards
to monitor the operation of the OIA and LGO IMA, collect
to what is considered to be an official information request it is unlikely organisations
statistics on use, and report findings to Parliament
will be in a position to provide true results as to how many requests they have had as
annually?
many occur informally or briefly over the counter. The administration costs and
Q95
margin for error in collecting statistics for requests may minimise any benefit.
Do you agree that agencies should be required to submit
statistics relating to official information requests to the
oversight body so as to facilitate this monitoring function?
Question 96
Although a specific audit function is considered unnecessary the BOPRC would
Do you agree that an explicit audit function does not need
appreciate having access to an authority responsible for providing local authorities
to be included in the
with review and recommendation services around their internal LGOIMA process and
OIA or the LGOIMA?
application.
Question 97
The BOPRC supports this as good practice.
Do you agree that the OIA and LGOIMA should enact an
oversight function which includes monitoring the operation
of the Acts, a policy function, a review function, and a
promotion function?
Question 104
Disagree
Do you agree that the LGOIMA should be aligned with the
OIA in terms of who can make requests and the purpose of
Given that there is no explicit requirement for the requestor to identify themselves
the legislation?
BOPRC believe this clause may be unenforceable in OIA and unnecessary in
LGOIMA.
BOPRC believes that the OIA assumption in the purpose statement is that a
progression was required from the initial state secrecy stance to that of right to
access. LGOIMA having been enacted at a later stage assumes that progression has
taken place and has an explicit purpose to provide for availability not merely progress
towards it. It is considered by this organisation that the latter is the more desirable
stance for a local authority and therefore a change is not supported.
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BAY OF PLENTY REGIONAL COUNCIL SUBMISSION TO THE: Review of Official Information Legislation
Reference to the document
BAY OF PLENTY REGIONAL COUNCIL - Comments & Recommendations
Question 105
Is the difference between the OIA and LGOIMA about the BOPRC believes that the requirements of the Public Records Act for authorities to
status of information held by contractors justified? Which apply certain standards of care and access to public records including those created
version is to be preferred?
by contracted parties should be reflected in the OIA and LGOIMA and explicit to
contractors.
“Where any local authority enters into any contract (other than a contract of
employment) with any person or organisation in relation to any matter, information that
is created or received by that person or organisation in relation to conducting activities
for or on behalf of the authority is deemed to be the property of the authority and
subject to requests under this act”
Question 107
Agree
Do you agree that the OIA and the LGOIMA should remain
Although there may be some confusion for the public when making requests quoting
as separate Acts?
OIA rather than LGOIMA has no impact on the request itself. Currently there are clear
and relevant areas of official information legislation for Central vs. Local Government.
BOPRC considers this separation to represent the more user friendly option and
believes any attempt to combine the two acts may lead to confusion and complexity.
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