Official Information Act 1982

Background

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

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

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

Principle of availability

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

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

Information covered by the Act

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

State Agencies covered by the Act

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

Legitimate exclusions

Conclusive reasons for agencies to withhold information include:

Other reasons to withhold information include:

Official information requests can also be refused. If

Public interest concerns

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

Request process

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

The role of the Ombudsman

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

Increase in OIA requests

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

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

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

In 2017 the State Services Commission published request statistics for over 100 government agencies. "This first set of statistics captures two elements - the number of requests received from 1 July 2015 – 30 June 2016 and the proportion handled in a timely manner."

Attempts to circumvent OIA

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

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

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

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

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

Effect on media

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

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

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

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