OFFICIAL INFORMATION ACT 1982 REVIEW
December 2010
Submission
to:
Official Information Legislation Review
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Law Commission
V
PO Box 2590
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Wellington 6140
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Email:
[email address]
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From:
,"0
Solid Energy New Zealand Limited
,;(
PO Box 1303
= "' "'
Christchurch 8140
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Attention:
Rob Page, Corporate Solicitor
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••. ~
Tel:
03 345 6000
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Fax:
03 3456016
r'\
Email:
[email address]
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Submission
of Solid Energy New Zealand Limited
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1.
Background
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1.1.
Solid Energy New Zealand Limited (Solid
er ~"s
a State Enterprise under the
State-Owned Enterprises Act 1986.
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1.2.
Solid Energy is New Zealand's large
~~y
producer with interests in coal mining,
renewable energy and new ener
'ects throughout New Zealand.
We aim to
maximise
value
for
New
Ze
an
through
responsible
custodianship
and
development of strategic nat
I eso rces within New Zealand.
1.3.
Solid Energy receives
p
. ately 20 - 30 requests for official information each
year.
The
request
r
formation
come
from
a variety
of individuals
and
organisations, parr
larly rom political parties, journalists and environmental groups.
2.
2.1.
estions whether
State-Owned
Enterprises
(SOEs) should remain
fficial Information Act (OIA) and requests that the Law Commission
'ts view on this. There are a number of reasons for this:
The context in which the Act operates today is significantly different from the
context
that applied
at the time the Act was enacted
and SOEs
were
established.
Solid Energy now actively engages with and informs the public
through a variety of means to a far greater extent than it did so at the time of
its creation as an SOE.
In addition,
Solid
Energy
is subject to a continuous
disclosure
regime
(Continuous
Disclosure
Rules) which has been instigated
by the Crown
Ownership
Monitoring
Unit.
To facilitate this process Solid Energy places
information that is required to be disclosed in accordance with the Rules on its
website.
The website also contains a considerable
amount of information
including the company's annual reports and media releases.
2.1.2.
Solid Energy, like other SOEs is required by the State-Owned Enterprises Act
as its principal objective to operate as a successful business and, to that end,
"be as profitable and efficient as comparable businesses that are not owned
by the Crown ... "
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There are times that the requirement to disclose our business and commercial
details puts Solid Energy at a commercial disadvantage to our competitors in
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the energy sector who do not have the same obligations.
While it is possible ~~
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that there may be valid reasons to withhold information in accordance with the
Act, the requirement to disclose information that others in the industry are n t
can be an encumbrance on our business.
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Further the significant amount of time involved and the costs r ~ted'to
responding to requests for information impair and exacerbate the
operate effectively and efficiently.
2.1.3
Significantly, being subject to the OIA impairs our ability t
out open and
forthright internal discussions and communications on
.de range of issues
that are vitally important to our business.
Whil
s IS an unintended
consequence
of an SOE being subject to the
I
is a very real and
significant concern for the company. If commun
.ons and discussions are
restricted due to a concern that all such info
atio
will be subject to release
into the public arena, it follows that thos
I
Ssions and communications
will not be as robust, honest and forthrig
Solid Energy employees (and m
nt of the company in particular) are
aware that as an SOE the com
subject to the requirements of the OIA
and that correspondence
a
munications
(particularly emails) may be
requested by the public
atter. The knowledge that communications
and discussions concerni
a
articular issue may be required to be released
has the effect of in .~r g
ose discussions and communications
which are
vital to the succe$
d safe operation of our business.
Instead of an
exchange of f
ce, people may be more inclined to provide verbal
advice or ne
e
s forthright
in their views,
particularly
if the topic
of
discussio
. on
that may be considered to be controversial in the eyes of
the pu
U
IS particularly
relevant in the area of health and safety (although
n
i Ited to this area of our business) and particularly relevant within the
. g industry at this time.
We do not want any reason for staff to have to
•. ~
nsider limiting their opinions or communications
out of a concern that
~nformation
could be released. We are working in an industry where it is vital
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that the safe operation of the business is not impeded in any way. For that to
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occur, staff must be able to offer their forthright and blunt opinions on all
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aspects of the business and not be concerned that the correspondence
may
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find its way into the public domain. This inhibition of information flow for these
reasons is already occurring within our business and is increasing.
This is
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already a serious concern for us with respect to our ability to manage safety
'"V
in particular, but also other aspects of our business.
From every point of view
~V
we consider this situation to be unacceptable.
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We note that an organisation is able to withhold information in accordance
,
with section 9(2)(g)(i), although this withholding ground appears less relevant
for organisations
than it does for Ministers of the Crown and government
departments.
We note the Ombudsmen's Guidelines state that "the purpose
of this section is to avoid prejudice to the generation and expression of free
and frank advice which are necessary for good government"
However, even
if this provision is relevant the threshold for use is high and any decision to
withhold
information
is always
subject to any overriding
public
interest
considerations.
We submit that the inclusion of SOEs as organisations
subject to the alA
does inhibit effective consultation and communications. The net effect can be
a very real lessening of communications
within the organisation,
the en
result being a less effective and safe business.
We do not believe the publ
interest is served by this, nor is the government shareholder.
In light
t'
we request that the Law Commission consider again whether SOEs
I
remain subject to the alA.
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2.2
If the Law Commission is to recommend that SOEs ought not to be a
of the
coverage of the alA, Solid Energy submits that any reform packag
O.!,l d at least
include recognition
of the unique position of SOEs in the O.
pis could be
achieved in one of two ways:
2.2.1
The first option, and Solid Energy's preferred oj?t"
uld be for matters
relating to SOEs to be reviewed by a specialist C>
dsman, appointed for
their knowledge, understanding and experie ce of
ommercial
enterprises,
and the kinds of factors that an SOE is re'
0 take account in order to
achieve its objectives under section 4 of t
a e Owned Enterprises Act;
2.2.2
The alternative option would be to 'm
requirement in any case in which
an Ombudsman
is investigati
d. ision of an SOE under the Act, to
consult with an appropriately.
II red independent expert, able to advocate
for the Crown's ownership
t in SOEs and the implications of different
approaches to the Act on
n
OE's ability to comply with section 4 of the
State-Owned Enterp .
c. A model clause of this nature would be section
29B of the alA, whiO
~res that the Ombudsmen consult with the Privacy
Commissioner b fi
ing any determination relating to matters of privacy
under the alA.
3.
Information
3.1.
aft of its business activities often engages third party consultants
rs to provide advice on specific matters related to our business.
This
in its formation (in the hands of the consultant/contractor)
and on
olid Energy is, of course, information subject to release. By its nature this
t
e
. formation will be information that is not publically available but will almost
nv
iably have a commercial value. A competitor or interested third party is able to
est the information provided by the consultant/contractor
notwithstanding
that
lid Energy has incurred costs associated with obtaining the information.
Solid
nergy is limited in its ability to withhold the information if none of the section 9
reasons apply.
Further, Solid Energy is unable to charge a commercial fee to the
requester to offset the price paid by Solid Energy for the information.
The requester
therefore receives "free" commercial information.
The public interest is seldom served in the release of this type of information.
Quite
the reverse.
In compromising Solid Energy's ability to operate in an efficient manner,
competitive with similar global enterprises not required to meet such requirements,
the public interest in allowing Solid Energy to provide Government with a reasonable
return on its investment may be harmed.
3.2.
Solid Energy submits that where information
of this type is requested
and the
information is of a type that could be readily obtained by the requester from a third
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party (albeit at a cost), then either:
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CJ
3.2.1.
the information should be able to be withheld.
A new ground for withholding
would be required to be added to section 9 of the Act for the release of
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information that is predominantly to be used for commercial purposes or gain; ~
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or
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3.2.2.
at the
very
least
that
the
charging
guidelines
be amended
to
organisations to charge at commercial rates for this type of information.
4.
Charging
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4.1
Solid Energy makes a number of submissions in relation to chargin
4.1.1
Solid Energy agrees that the Ministry of Justice guid
in
the OIA should be laid down in regulations that set
o only what scale of
charges should apply to a request but also t
ctivities required to
respond to a request be chargeable.
Solid En
submits that all matters
and activities that are directly necessary t~es~o
d to a request should be
chargeable.
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Requesters and the Ombudsmen
f
n -S~nificantly underestimate
the time
involved in responding to reque
. ormation.
A significant proportion of
the time spent in responding
q ests once the information itself has been
located and collated (often
ti
consuming exercise in itself) can be spent
in the reviewing stage (0
e by line) deciding on what, if any information
should be withheld.
, time spent on deliberating
on grounds
for
withholding
inform
a
consulting
with colleagues
or third parties is
unable to be charg
n
ccordance with Ministry of Justice Guidelines.
Solid
Energy submi
time spent in responding to a request should be able
to be charg
4.1.2
w Commission's view that the discretion to impose charges be
reserve power for controlling large requests and encouraging
of the scope of a request.
However Solid Energy submits that
g requesters should be a discretion available in response to every
•...~
e
st for information unless the response requires only minimal time to
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mplete.
1.3
Solid Energy does not agree that a charging framework that uses a flat fee
S/
,,' model is appropriate. On occasions, only a small amount of information may
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be released but a significant amount of time and resources will have been
expended in responding to the request.
«,,~5.
Purposeof Request
/N
5.1
Solid
Energy
submits
that
requesters
should,
on
request
by
the
receiving
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organisation, be required to disclose the purpose for the information requested.
,
5.2
Understanding a requester's reason for requesting the information is a valuable tool
to be able to refine large or wide-ranging
requests and also helps in determining
whether a charge for the information is warranted or appropriate.
5.3
Solid Energy submits that the Act be amended to clearly set out that a requester may
be required to provide a purpose for the information if requested
by the agency
~
holding the information.
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5.4
CJ
Notwithstanding
a requester may refuse to provide a purpose or provide a fictitious
reason the obligation for the requester to provide a purpose will help to increase the
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::~:::~:~:::~~~:inga
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to
request
6.
6.1.
Dealing with requests that are broad, large or not set out with due particular"
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cause delays in responding to requesters within the necessary time frame.
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6.2.
Solid Energy agrees that the alA should clarify that the 20 working d
imit for
requests that are delayed by a lack of particularity should start fr
date the
request has been refined by the requester and accepted by th
.ver.
This is
because even after the request has been refined the time req.f
to respond to the
refined request can still be significant (but may be achievab
thin the 20 working
days), which would then negate the need to extend the tim
pond.
7.
Urgent Req uesls
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7.1
Given the time-consuming
nature of responding
requests Solid Energy does
not believe that there should be a new grou
0
mplaint for an organisation
not
responding
to a requester's
request for
ent response.
The Ombudsman
already has sufficiently broad powers
er he Ombudsmen Act to investigate
a
response to a request for urgency.
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7.2
There is already a clear obligatio
un
r the Act to respond as soon as reasonably
practicable and in any case
0
la
than 20 working days after the receipt of a
request for information.
7.3
In a large organisatio
e
resources and information are scattered throughout the
country, respondin
0 ur
nt requests in a short time frame can be difficult to meet.
What can appe
a trivial or minor request can in fact include a number of
people workin
r
number of sites with varying workloads and availability.
8.
8.1
Y agrees with the Law Commission that organisations should continue to
aximum 20 working day period to make a decision on whether to release
ation.
We note that in most cases making a decision to make information
. ble or to withhold information will generally be made after all the information is
I ected, collated and reviewed.
This can take considerable time. Any reduction to
he 20 working day time period would cause considerable time pressure and would
likely result in a greater number of extensions of time.
Solid Energy agrees that complexity of a request should be grounds for extending the
time limit in which to decide whether a request is to be granted.
Statutory Right to Review
9.1
Solid Energy does not agree with the Law Commission's view that judicial review is
an appropriate safeguard in relation to the Ombudsmen's recommendations.
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9.2
In our experience an Ombudsman's decisions can sometimes be weighted in favour
of releasing all official information notwithstanding the very real concerns that may
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have
been
expressed
by
Solid
Energy
in
relation
to
an
ombudsman's~~
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recommendations.
Accordingly we think that the Ombudsman's decisions should be
made more contestable.
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9.3
Solid Energy submits that any decision made by the Ombudsman should b~li
appealed to the High Court.
We submit that it is not enough that the leg~~he
decision making process is considered in a judicial review process but th
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merits
of the Ombudsman's decision should be able to be argued in Court.
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Document Outline
