ISSUES PAPER - QUESTIONS
Q1
Do you agree that the Schedules to each Act (OIA and the LGOIMA) should list
every agency that they cover?
Q2
Do you agree that the schedules to the OIA and LGOIMA should be examined to
eliminate anomalies and ensure that all relevant bodies are included?
Q1 & Q2: No – it would be better to use generic descriptions then
every time a new agency appears or is renamed or reformed there is
no need for legislative amendment.
Q3
Do you agree that SOEs and other crown entity companies should remain within
the scope of the OIA?
Q3: N/A – References in this response relate to local government
(Local Government Official Information and Meetings Act 1987)
Q4
Do you agree that council controlled organisations should remain within the
scope of the LGOIMA?
Q4: If the purpose of the CCO is purely commercial (ie no public utility
or service involvement relating to local authorities) then commercial
law should apply. Otherwise the public interest would support
retention.
Q5
Do you agree that the Parliamentary Counsel Office should be brought within the
scope of the OIA?
Q6
Do you agree that the OIA should specify what information relating to the
operation of the Courts is covered by the Act?
Q5/Q6 – No comment
Q7
Should any further categories of information be expressly excluded from the OIA
and the LGOIMA?
Q7: We support the view that informal information should be
excluded. Of particular concern are recollections of conversations,
phone calls, or file notes and e-mails which have not formed part of
advice or factual information.
Third party information is another area which should be expressly
excluded. A common example in local government may be
information supplied by another government agency or commercial
entity regarding their own development proposals where the release
of such information could be detrimental to that organisation’s
commercial position. For example intended land purchases for public
utility use (roading). Current grounds for refusal are challenged often
and occasionally upheld by the Ombudsman which would suggest that
either this needs to be specifically excluded or the grounds for refusal
extended or more clearly defined.
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Another area of concern for local government is the number of
neighbourhood disputes conducted by way of regulatory complaint
and the potential for the release of such information to inflame
difficult situations. There is no real ability to withhold such
information despite it being (even in ordinary circumstances) supplied
with a view from complainants that it will remain confidential. Should
such matters end up in court disclosure through those processes
would naturally follow. However often these issues are resolved
without court process and release of the information would not seem
to be either necessary or appropriate. Also the knowledge that such
information may be released may inhibit reporting. The Police are
able to receive anonymous reporting and not release their information
sources – why not local government enforcement and compliance
officers.
Q8
Do you agree that the OIA and the LGOIMA should continue to be based on a
case-by-case model?
Q8: Absolutely not as this approach has led to inconsistent application
across the country and confusion as numbers of differently skilled
people attempt to interpret the Act. Clear specification is what is
needed. For small councils that do not have legal officers on the staff
this is an increasingly costly burden on their ratepayers. From a
public perspective it is also confusing since applications to a number
of authorities on the same topic can result in huge variance of
response. People on both sides of this equation would benefit from
more clarity. Time taken over responding to requests is already
onerous in many circumstances and adding to this the requirement to
seek guidance through even more research only adds to the cost and
consequential loss of productive time for ratepayer services.
A key area for clarification is application of the withholding grounds
and an improvement the clarity of intent of the withholding grounds
would greatly assist from the perspective of local government officers.
From a public perspective the ability to understand the rationale of
the reason used would also reduce concern and mistrust of public
institutions.
Q9
Do you agree that more clarity and more certainty about the official information
withholding grounds can be gained through enhanced guidance rather than
through prescriptive rules, redrafting the grounds or prescribing what
information should be released in regulations?
Q9: No – see above.
Q10
Do you agree there should be a compilation, analysis of, and commentary on,
the casenotes of the Ombudsmen?
Q11
Do you agree there should be greater access to, and reliance on, the casenotes
as precedents?
Q12
Do you agree there should be a reformulation of the guidelines with greater use
of case examples?
Q10 – Q12: see response to Q8
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Q13
Do you agree there should be a dedicated and accessible official information
website?
Q13: All assistance is valuable when working with such uncertain
legislation.
Q14
Do you agree that the “good government” withholding grounds should be
redrafted?
Q15
What are your views on the proposed reformulated provisions relating to the
“good government” grounds?
Q14 - Q15: We would support a redraft of this for local government
and an inclusion for local government of an opportunity to withhold
information on the basis of allowing advice to be properly considered
prior to a decision being made.
Q16
Do you think the commercial withholding ground should continue to be confined
to situations where the purpose is to make a profit?
Q16: This is too confining and sometimes the interest to be protected
is third party information. Other parties’ intellectual property would
be protected in a commercial environment so forcing a different
standard on public institutions is clearly inequitable. This could
discourage some parties from dealing with government entities and
reduce good public outcome opportunity. It is not always obvious to
local authority officers whether information is or is not a trade secret.
The other major point is that the range of information collected and
held by local authorities is much greater than that held by (on the
whole) purpose specific government departments and in particular
issues have arisen over building matters (house designs etc), tender
details from or about tenders to show just two examples.
Q17
If you favour a broader interpretation, should there be a statutory amendment
to clarify when the commercial withholding ground applies?
Q17: Yes
Q18
Do you think the trade secrets and confidentiality withholding grounds should be
amended for clarification?
Q18: See above
Q19
Do you agree that the official information legislation should continue to apply to
information in which intellectual property is held by a third party?
Q19: See above
Q20
Do you have any comment on the application of the OIA to research work,
particularly that commissioned by third parties?
Q20: See above
Q21
Do you think the public interest factors relevant to disclosure of commercial
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information should be included in guidelines or in the legislation?
Q21: A definition of when and how public interest would override
commercial protection would be extremely helpful.
Q22
Do you experience any other problems with the commercial withholding
grounds?
Q22: Their generality does not assist in knowing when they can be
properly applied.
Q23
Which option do you support for improving the privacy withholding ground:
Option1 – guidance only, or;
Option 2 – an “unreasonable disclosure of information” amendment while
retaining the public interest balancing 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?
Q23: Refer comments under Q7 –When information held about an
individual supplied by a third party (eg a complaint) will quite clearly
identify the third party then the privacy issues relating to that third
party cannot be protected. This is the quandary the two acts create.
Referring to the ombudsman case notes and practice guidelines is
insufficient as referral would also have to be made through the
Privacy Commissioner. Clarity on which act to give weight to is
important, and consideration of the privacy of all parties is important
and would support option three without the public interest addition.
Currently the individual’s right to privacy is protected under one act
but can be overridden by the other. These should be consistent.
Q24
Do you think there should be amendments to the Acts in relation to the privacy
interests of:
(a)
deceased persons?
(b)
children?
Q24: No comment.
Q25
Do you have any views on public sector agencies using the OIA to gather
information about individuals?
Q26
Do you agree that no withholding grounds should be moved between the
conclusive and non-conclusive withholding provisions in either the OIA or
LGOIMA?
Q27
Do you think there should be new withholding grounds to cover:
(a)
harassment;
(b)
the protection of cultural values;
(c)
anything else?
Q26: If the withholding grounds were clearly defined with no
confusion over meaning or application this would not be an issue.
Q28
Do you agree that the “will soon be publicly available” ground should be
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amended as proposed?
Q28: The contention that some agencies may be misusing this clause
is not a good ground to amend it. Different local authorities operate
different meeting cycles and therefore the definition of a very short
time may cut across a decision making cycle. For example some
operate on a monthly cycle, some on a six weekly cycle. The words
“will soon be publicly available” if aligned somehow to the authority’s
decision making cycle may be an acceptable amendment – but “very
short time” is neither clear nor helpful in efficient and effective
administration. Also this has the potential to release into the public
environment information which the decision makers have not had the
opportunity to duly consider.
Q29
Do you agree that there should be a new non-conclusive withholding ground for
information supplied in the course of an investigation?
Q29: Yes – see response to Q 7 and Q 23 above.
Q30
Do you have any comments on, or suggestions about, the “maintenance of law”
conclusive withholding ground?
Q30: This ground should remain as a conclusive reason for
withholding.
Q31
Do you agree that the Acts should not include a codified list of public interest
factors? If you disagree, what public interest factors do you suggest should be
included?
Q31: As with other questions raised in regard to clarity of
understanding from both agency and public perspective a list is more
useful than reference to “guidelines”. The list could carry a rider that
it was not exhaustive but would at least give some grounds for
certainty.
Q32
Can you suggest any statutory amendment which would clarify what “public
interest” means and how it should be applied?
Q32: Guidance on appropriate statutory amendment is best provided
through bodies such as the Law Commission or Parliamentary
Counsel.
Q33
Do you think the public interest test should be contained in a distinct and
separate provision?
Q34
Do you think the Acts should include a requirement for agencies to confirm they
have considered the public interest when withholding information and also
indicate what public interest grounds they considered?
Q34 – Any improvements to the legislation should result in a less and
not more onerous process, so therefore such a requirement would not
result in a positive improvement. In addition the public interest is not
the only consideration and the question would have to be should this
have more weight than other equally relevant considerations such as
privacy, trade secrets, and protecting the maintenance of law.
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Q35
Do you agree that the phrase “due particularity” should be redrafted in more
detail to make it clearer?
Q35: More emphasis on plain English can only improve all legislation.
Q36
Do you agree that agencies should be required to consult with requesters in the
case of requests for large amounts of information?
Q36: Due to the cost and research involved with such requests this is
normal process in any case and it is probably unnecessary as a
requirement.
Q37
Do you agree the Acts should clarify that the 20 working day limit for requests
delayed by lack of particularity should start when the request has been
accepted?
Q37: The twenty working day requirement should come into force
once all ambiguity has been clarified, and once payment for extensive
research has been received. Time taken in clarifying a requesters
needs should not start the clock. This should be clear and separate
from the “day” the request is received.
Q38
Do you agree that substantial time spent in “review” and “assessment” of
material should be taken into account in assessing whether material can be
released, and that the Acts should be amended to make that clear?
Q39
Do you agree that “substantial” should be defined with reference to the size and
resources of the agency considering the request?
Q38 and Q39: We support the suggestions in the discussion paper.
Q40
Do you have any other ideas about reasonable ways to deal with requests that
require a substantial amount of time to process?
Q40: Provide opportunity to agree with the requester a much longer
period for response to reduce pressure on resources.
Q41
Do you agree it should be clarified that the past conduct of a requester can be
taken into account in assessing whether a request is vexatious?
Q42
Do you agree that the term “vexatious” needs to be defined in the Acts to
include the element of bad faith?
Q43
Do you agree that an agency should be able to decline a request for information
if the same or substantially the same information has been provided, or refused,
to that requester in the past?
Q41, Q42, and Q43: These are all frequently experienced in our
agency, often with such individuals also approaching the Ombudsman.
The Agency should have the ability to take into account past conduct,
bad faith and repeat requests for the same information.
Q44
Do you think that provision should be made for an agency to declare a requester
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“vexatious”? If so, how should such a system operate?
Q44: We support the proposal to declare some forms of request
vexatious however it may be difficult to maintain the label vexatious
on an individual. If this was turned around so that certain requests
could be treated as vexatious then should the requester want other
information on something completely different (and possibly not
vexatious) then response could be made.
Q45
Do you agree that, as at present, requesters should not be required to state the
purpose for which they are requesting official information nor to provide their
real name?
Q45: There should be some provision for the question of purpose to be
raised as this can assist in refining research, and requests should not
be able to be made anonymously because of the possibility of
breaching privacy issues as discussed earlier.
Q46
Do you agree the Acts should state that requests can be in oral or in writing,
and that the requests do not need to refer to the relevant official information
legislation?
Q46: The onus on the agency to decide whether or not a request is
made under the legislation is another very grey area for local
authorities given that “all” information we hold is deemed official
information however some requests for information are part of normal
day to day business transactions within the local authority eg building
consent information, land information etc. Hence the lack of clarity
about what is and is not an official information request again leads to
a mixed and confused response across the industry. Definition by the
requestor (provided as in Q47 there is clearer public understanding of
the legislation) would assist all parties in satisfactory outcomes.
Q47
Do you agree that more accessible guidance should be available for requesters?
Q48
Do you agree the 20 working day time limit should be retained for making a
decision?
Q48: Yes
Q49
Do you agree that there should be express provision that the information must
be released as soon as reasonably practicable after a decision to release is
made?
Q49: Yes
Q50
Do you agree that, as at present, there should be no statutory requirement to
acknowledge receipt of an official information request but this should be
encouraged as best practice?
Q50: Yes
Q51
Do you agree that ‘complexity of the material being sought’ should be a ground
for extending the response time limit?
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Q51: Yes – see above
Q52
Do you agree there is no need for an express power to extend the response time
limit by agreement?
Q52: No – see above
Q53
Do you agree the maximum extension time should continue to be flexible
without a specific time limit set out in statute?
Q53: Yes
Q54
Do you agree that handling urgent requests should continue to be dealt with by
Ombudsmen guidelines and there is no need for further statutory provision?
Q54: As for previous comments – clarity in the legislation is preferable
to guidelines.
Q55
Do you agree there should be clearer guidelines about consultation with
ministerial offices?
Q55: Not applicable.
Q56
Do you agree there should not be any mandatory requirement to consult with
third parties?
Q57
Do you agree there should be a requirement to give prior notice of release
where there are significant third party interests at stake?
Q56 and Q57: The proposal for prior notice to release would address
the need for consulting.
Q58
How long do you think the notice to third parties should be?
Q58: Five working days should be sufficient for most business
purposes.
Q59
Do you agree there should be provision in the legislation to allow for partial
transfers?
Q59: Yes as with the amount of inter-agency interaction there are
often instances where a request needs response from more than one
source.
Q60
Do you agree there is no need for further statutory provision about transfer to
Ministers?
Q60: N/A
Q61
Do you have any other comment about the transfer of requests to ministers?
Q61: N/A
Q62
Do you think that whether information is released in electronic form should
continue to depend on the preference of the requester?
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Q62: It needs to be explicit in the Act that electronic form is
acceptable, and preferable in terms of cost efficiency for agencies.
The preference of the requester should only be taken into account if
access to electronic media is restricted.
Q63
Do you think the Acts should make specific provision for metadata, information
in backup systems and information inaccessible without specialist expertise?
Q63: Yes – as this comes back to cost and resourcing.
Q64
Should hard copy costs ever be recoverable if requesters select hard copy over
electronic supply of the information?
Q64: As with all other resources the costs of hard copies and delivery
to the agencies become costs on tax payers and ratepayers and should
be born by end users.
Q65
Do you think that the official information legislation needs to make any further
provision for agencies to place conditions on the re-use of information, or are
the current provisions sufficient?
Q65: The Act should be explicit that conditions can be set to ensure
public understanding and to provide agencies with the ability to
defend their release of information (particularly third party
information).
Q66
Do you agree there should be regulations laying down a clear charging
framework for both the OIA and the LGOIMA?
Q66: A clear framework would as in all other cases, assist provided
that it was regularly reviewed to recognise rising costs.
Q67
Do you have any comment as to what the framework should be and who should
be responsible for recommending it?
Q67: The Ministry of Justice guidelines could be used and are
currently used as a basis for charging.
Q68
Do you agree that the charging regime should also apply to political party
requests for official information?
Q68: Yes
Q69
Do you agree that both the OIA and LGOIMA should set out the full procedures
followed by the Ombudsmen in reviewing complaints?
Q69: Yes
Q70
Do you think the Acts provide sufficiently at present for failure by agencies to
respond appropriately to urgent requests?
Q70: Yes
Q71
Do you agree with the existing situation where a person affected by the release
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of their information under the OIA or the LGOIMA cannot complain to the
Ombudsman?
Q71: No but this would cease to be a problem if the issue of releasing
information involving third parties (as referred to elsewhere in this
discussion document) was properly addressed.
Q72
Do you agree there should be grounds to complain to the Ombudsmen if
sufficient notice of release is not given to third parties when their interests are at
stake?
Q72: Yes
Q73
Do you agree that a transfer complaint ground should be added to the OIA and
the LGOIMA?
Q73: No comment
Q74
Do you think there should be any changes to the processes the Ombudsmen’s
follows in investigating complaints?
Q74: No – the process followed by the Ombudsman’s offices has by
experience been very fair and consultative. The office encourages
proactive questions rather than reactive response in complaints
situations and should be retained.
Q75
Do you agree that the Ombudsmen should be given a final power of decision
when determining an official information request?
Q76
Do you agree that the veto power exercisable by Order in Council through the
Cabinet in the OIA should be removed?
Q77
Do you agree that the veto power exercisable by a local authority in the LGOIMA
should be removed?
Q78
If you believe the veto power should be retained for the OIA and LGOIMA, do
you have any comment or suggestions about its operation?
Q75 – Q78: The question of veto should be addressed politically.
Q79
Do you agree that judicial review is an appropriate safeguard in relation to the
Ombudsmen’s recommendations and there is no need to introduce a statutory
right of appeal to the Court?
Q79: Judicial review is a very expensive and inaccessible process for
public purposes and there should be a more accessible option.
Q80
Do you agree that the public duty to comply with an Ombudsman’s decision
should be enforceable by the Solicitor -General?
Q80: Refer above – Q75-Q78.
Q81
Do you agree that the complaints process for Part 3 and 4 official information
should be aligned with the complaints process under Part 2?
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Q81: Yes
Q82
Do you agree that, rather than financial or penal sanctions, the Ombudsmen
should have express statutory power to publicly draw attention to the conduct of
an agency?
Q82: Support this proposal
Q83
Should there be any further enforcement powers, such as exist in the United
Kingdom?
Q83: The response to Q82 should be sufficient, no further powers
necessary.
Q84
Do you agree that the OIA should require each agency to publish on its website
the information currently specified in section 20 of the OIA?
Q84: N/A
Q85
Do you think there should be any further mandatory categories of information
subject to a proactive disclosure requirement in the OIA or LGOIMA?
Q85: Clearer definition of what is official information and what is
information which is part of the normal business of the organisation
would resolve this matter.
Q86
Do you agree that the OIA and LGOIMA should require agencies to take all
reasonably practicable steps to proactively release official information?
Q86: As for Q85 – until such definition exists the information held by
local authorities is so vast that such requirements could become
unwieldy and impractical.
Q87
Should such a requirement apply to all central and local agencies covered by the
OI legislation?
Q87: as for Q86 above
Q88
What contingent provision should the legislation make in case the “reasonably
practicable steps” provision proves inadequate? For example, should there be a
statutory review or regulation making powers relating to proactive release of
information?
Q88: As above – Q85, 86, 87
Q89
Do you think agencies should be required to have explicit publication schemes
for the information they hold, as in other jurisdictions?
Q89: There are other references in other legislation such as the Local
Government Act requiring publication of certain information – this is
therefore unnecessary in Local Government Official Information and
Meetings Act 1987.
Q90
Do you agree that disclosure logs should not be mandatory?
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Q90: Not necessary nor should this be mandatory.
Q91
Do you agree that section 48 of the OIA and section 41 of the LGOIMA which
protect agencies from court proceedings should not apply to proactive release?
Q91: Disagree – protection of the agency’s legal position and rights is
important, and such protection should apply to proactive release.
Q92
Do you agree that the OIA and the LGOIMA should expressly include a function
of providing advice and guidance to agencies and requesters?
Q92: Clarity in the act should remove the need for such a function.
Q93
Do you agree that the OIA and the LGOIMA should include a function of
promoting awareness and understanding and encouraging education and
training?
Q93: This is not a usual requirement in legislation and as for Q92
improvement in the language and clarity of intent should remove any
residual need.
Q94
Do you agree that an oversight agency should be required to monitor the
operation of the OIA and LGOIMA, collect statistics on use, and report findings
to Parliament annually?
Q95
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?
Q94 and Q95: From a local government perspective monitoring would
only be required within the organisation and should not be an
external agency role. Government departments may be different as
their reporting structures through to ministers are different.
Q96
Do you agree that an explicit audit function does not need to be included in the
OIA or the LGOIMA?
Q96: The Office of the Auditor General already has the power to audit
any particular aspect of compliance so this is not really necessary as
another legal avenue is available.
Q97
Do you agree that the OIA and the LGOIMA should expressly enact an oversight
function which includes monitoring the operation of the Acts, a policy function, a
review function, and a promotion function?
Q97: No – unless this is applied across all the relevant legislation
relating to Local and Central Government. Promotion, training ,
application and education issues are equally applicable across all
legislation.
Q98
Do you agree that the Ombudsmen should continue to receive and investigate
complaints under the OIA and the LGOIMA?
Q98: Yes
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Q99
Do you agree that the Ombudsmen should be responsible for the provision of
guidance and advice?
Q99: Yes – this would always be a valuable function of that office but
may be less necessary if the legislation was improved as to clarity and
applicability.
Q100
What agency should be responsible for promoting awareness and understanding
of the OIA and LGOIMA and arranging for programmes of education and training
for agencies subject to the Acts?
Q100: See response to Q97
Q101
What agency should be responsible for administrative oversight of the OIA and
the LGOIMA? What should be included in the oversight functions?
Q102
Do you think an Information Commissioner Office should be established in New
Zealand? If so, what should its functions be?
Q103
If you think an Information Commissioner Office should be established, should it
be standalone or be part of another agency?
Q101-103: See response to Q 97
Q104
Do you agree that the LGOIMA should be aligned with OIA in terms of who can
make requests and the purpose of the legislation?
Q104: The differences reflect the different natures of the agencies –
one being the creator of statute and one being a creature of statute.
Therefore differences should be retained.
Q105
Is the difference between the OIA and LGOIMA about the status of information
held by contractors justified? Which version is to be preferred?
Q105: The provision in Local Government Official Information and
Meetings Act 1987 to a degree recognises a third party interest which
is missing from the OIA – perhaps the alignment should be in the
reverse.
Q106
Do you agree that the official information legislation should be redrafted and re-
enacted.
Q106: Provided that it takes into account the proposals from this
submission in terms of clarity, plain English and various other
suggested improvements it would be excellent to have it redrafted
and re-enacted.
Q107
Do you agree that the OIA and the LGOIMA should remain as separate Acts?
Q107: See response to Q104 above.
Q108
Do you have any comment on the interaction between the PRA and the OI
legislation? Are any statutory amendments required in your view?
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Q108: Because the PRA is new and retroactive record collation in
some cases is not possible no statutory amendments are required.
