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Section 14 of the Bill of Rights Act states that "Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form."(1)

The Official Information Act 1982 starts from the principle that all official information should be available.(2) The Court of Appeals said in 1988 that "the permeating importance of the Act is such that it is entitled to be ranked as a constitutional measure."(3) Any citizen, resident, or company in New Zealand can demand official information held by public bodies, state-owned enterprises and bodies which carry out public functions. Agencies have been required in some cases to take down notes of discussions that contributed to government decision-making if no documents are available. The body has no more than 20 days to respond.

There are strict exemptions for releasing information that would harm national security and international relations; information provided in confidence by other governments or international organizations; information that is needed for the maintenance of the law and the protection of any person; information that would harm the economy of New Zealand; and information related to the entering into any trade agreements. In a second set of exemptions, information can be withheld for good reason unless there is an overriding public interest. These exemptions include information that could intrude into personal privacy, commercial secrets, privileged communication and confidences, information that if disclosed could damage public safety and health, economic interests, constitutional conventions and the effective conduct of public affairs, including "the free and frank expression of opinions" by officials and employees.

The Office of the Ombudsmen reviews denials of access.(4) The decisions of the Ombudsmen have limited many of the categories of exemption, requiring agencies to justify their decisions in terms of the possible consequences of disclosure. The focus has shifted from withholding information to setting how and when information, especially politically sensitive information, should be released.(5) As noted by a previous Secretary of the Cabinet, "virtually all written work in the government these days is prepared on the assumption that it will be made public in time […] the focus in the current open style of government is on managing the dissemination of official information."(6) It is common for Cabinet documents and advice to be released.

The Ombudsmen's decisions are binding, but there are limited sanctions for non-compliance and some agencies have reportedly ignored their rulings. The Ombudsmen received 922 complaints in 2004-05 and actioned 1,183 complaints overall. A 2005 study into the Act found that of the sample applications assessed, requesters who were denied information were informed of their review rights in 71 per cent of responses.(7) Significantly, private individuals were told of their review rights in only 53 per cent of responses. The police was the organization most complained about. The vast majority of complaints related to refusals or delays which were deemed as refusals. It took the Ombudsman's office an average of 73 days to complete their handling of complaints.(8)

In 2005, the Ombudsmen made a couple of notable precedent-setting decisions. They dealt with a number of complaints regarding whether advice or opinions from political advisers could be accessed under the Act. Political advisers themselves are not covered by the Act, but, if information generated by advisers comes to be held by a Minister in his or her official capacity, or by an agency subject to the Act, the Ombudsman found that that information is subject to the Act. The Ombudsman also considered the issue of whether MPs should be charged fees for their requests. Generally, where the requester is an MP, charges are waived because it is recognized that there is a public interest in MPs having access to information so they can exercise their democratic responsibilities. However, the Ombudsman found that in some cases it was still reasonable to fix a charge, namely, where a Member made serial, virtually identical requests, repeated on a monthly basis, for information coming within a widely framed category. In 2004, he ruled that the papers from the joint Australia New Zealand Food Regulation Ministerial Council, a body that now sets food standards for New Zealand, could be withheld but recommended changes to the Act to limit the definition of an international organization.

The Governor General can issue a "Cabinet veto" directing an agency not to comply with the Ombudsmen's decision. The veto, however, can be reviewed by the High Court. Between 1983 and 1987, 14 vetoes were exercised under a system that allowed individual ministers to issue vetoes. Veto power has not been used since 1987, when it was converted to a collective decision.

An Information Authority was created under the Act. The Authority conducted audits, reviewed legislation and proposed changes. The OIA put a fixed term on its existence and body was automatically dissolved in 1988 after Parliament failed to amend the Act. Some of its functions were transferred to the Legislative Advisory Committee and the Ombudsmen.

The Law Commission released a detailed review of the Act in 1997.(9) It found that the biggest problems were large and broadly defined requests, delays in responding to requests, resistance to the Act outside the core state sector, and the absence of a coordinated approach to supervision, compliance, policy advice and education. The review also found that "the assumption that policy advice will eventually be released under the Act has in our view improved the quality and transparency of [policy] advice." The Commission recommended reducing response time to 15 days and making agencies respond before the deadline, requiring bodies that do not appeal Ombudsman's decisions to the court to release information, giving the Ministry of Justice more coordination responsibility (in lieu of creating an Information Commission), providing more resources to the Ombudsman and Ministry of Justice, and adequately funding the Ombudsman's public activities to promote the Act. The proposals have not been acted upon yet.(10)

In 2005, a review by academic Steven Price found that problems with the Act remained.(11) The review quoted former MP Michael Laws as saying, "It is ridiculously easy to circumvent the act and to hide information from requesters and Ombudsmen alike […] Of course, all potentially embarrassing information is routinely refused and time delays are simply de rigueur." Price reported that the Ombudsman's 2002 OIA Practice Guideline contain a damning list of 57 "misconceptions" about the OIA that persist more than 20 years after its enactment, including that information must be withheld if the person concerned does not consent to its release; if the information is misleading it can be withheld; any confidential information can be withheld; and that ministers have a right to undisturbed consideration of advice; drafts can be withheld. It is understood that the Government has recently commissioned an academic study of the Act looking at how well it is administered and where shortcomings continue to exist. The report is likely to be released at the end of 2006.

In the past few years, there have been several significant controversies relating to failures to release information. In 2003, the Immigration Service told the Ombudsman that it did not possess a memorandum that stated that the Immigration Service was "lying in unison" regarding the case of Ahmed Zaoui, an Algerian asylum seeker.(12) The memo was subsequently leaked to a MP and the Ombudsman re-opened his inquiry and issued a new report critical of the agency and recommended changes to the information request procedures.(13) The employee was later sacked. The Ombudsmen reviewed the revised procedures and noted in their 2003-2004 report that "the resulting policy for handling OIA requests produced by the Department is one of the best we have seen and would serve as a model on how to approach statutory obligations under the official information legislation."

The Ombudsmen said the greatest problems that caused delays is a failure to determine who is responsible for answering the request and in cases where "politically sensitive" information is requested and when third parties need to be notified. The Ombudsmen said there was an "urgent need" for better training of public employees and released new Practice Guidelines to facilitate better understanding of the Act. The report also reviewed an effort by the government to create a de facto class exemption for advice to the Prime Minister from the Department of the Prime Minister and Cabinet and stated that decisions would still have to be made on a case by case basis. In 2004, they recommended additional training by either the State Services Commission or the Ministry of Justice to improve all agencies' consistency in responding to requests and are seeking more money to provide additional training themselves since the two bodies have not done it themselves.

The Local Government Official Information and Meetings Act 1987 provides for access to information held by local authorities.(14) It follows the same framework for access as the OIA. It is also overseen by the Ombudsmen.

The Privacy Act 1993 allows individuals to obtain and correct records about themselves held by public and private bodies.(15) It is overseen by the Privacy Commissioner.(16) The Privacy Commissioner and the Ombudsman have an agreement to work together when there is a request that applies to both Acts. In 1998, the Privacy Commissioner also recommended more training for government officials to reduce the misapplication of the Privacy Act to justify nondisclosure.(17)

The OIA repealed the Official Secrets Act 1951. Protections for classified information are set by a Cabinet Directive issued in 1982.(18) The levels of protection are Top Secret, Secret, Confidential, Restricted, Sensitive and In Confidence. The classification level is not determinative on the decision to release the information under the OIA.

The Public Records Act was passed by Parliament in April 2005 and replaced the Archives Act and the document and archive provisions of the Local Government Act 1974.(19) The Public Records Act now requires that at 25 years, records will need to be classified as having either open access or restricted access and will then be available for transfer to the Archive. However, the OIA's requirements on release of information prevail.

2004 freedominfo.org Global Survey Results - New Zealand

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Cows from New Zealand Allegedly Abused in China
Green Party MP Sue Kedgley acquired an Agriquality report under the Official Information Act, in which a stockman raised serious concerns over treatment of cows shipped from New Zealand to China. In particular, the report notes that pens were overcrowded and unventilated, cows were forced to stand in knee-deep excrement, and were fed hay contaminated with dead animals and wire. The Associate Minister of Agriculture Damien O'Connor told Parliament that his staff would be "investigating whether all the requirements of the animal welfare export certificate were met."

SOURCE: "Cows shipped to China forced to stand in excrement," New Zealand Press Association, Mar. 9, 2005.

Confidential Cabinet Documents Expose New Zealand's Flawed, Ineffective Tsunami Warning System
Reviews obtained by media under New Zealand's Official Information Act express findings that the nation's new seismic warning system is incomplete, facing a more than $18 million budget shortfall, and lack a nationwide program to educate people about what they should do in the case of a tsunami threat. Officials called on the nation's Earthquake Commission and others to report by September on ways to improve the warning system.

SOURCE: "Report: New Zealand works to upgrade badly flawed tsunami warning system," AP Asia, Feb. 28, 2005.

31 DECEMBER 2003
NEW ZEALAND: Ombudsman Blast Slow Public Bodies
The New Zealand Herald reports on the Ombudsman John Belgrave's observations on the Government's handling of the Freedom of Information Act.

According to Belgrave's report, government agencies are dragging their feet over Official Information Act requests and failing to fulfil obligations to respond as soon as possible. The Ombudsman said that under the act, agencies were required to respond to information requests as "soon as reasonably practicable" and no later than 20 working days after the request was made.

Yet ombudsmen continued to receive complaints that agencies believed they had no obligation to respond any earlier than 20 working days, irrespective of the nature of the request. "Regrettably, investigation of such complaints often reveal a misconception among staff of some agencies about the true nature of their obligations."

When the 20-day time limit was inserted in the 1987 act, Parliament had made it clear the 20 working days should not be treated as the normal time period for making and communicating a decision. Instead it should be the maximum period, except where specific circumstances required an extension.

To read the full Ombudsman Bulletin (in .pdf format) click here.

12 NOVEMBER 2003
AUSTRALIA/NEW ZEALAND: Alarm over Food Labeling Secrecy
According to a Press Release by New Zealand's Green Party, decisions about what goes into Australians' and New Zealanders' food and even what goes onto the label will continue to be made in secret, as a result of an Ombudsman's ruling.

The Ombudsman has upheld a refusal by the Minister of Food Safety to release information under the Official Information Act regarding any decisions made by the Australia New Zealand Food Regulation Ministerial Council, on the grounds that the council is an international organization.

The ministerial council makes decisions on what is in our food: what ingredients are legal and illegal; the level of pesticide residues allowable; how food is produced and how food is labeled.

It is outrageous that food policy decisions are exempt from the Official Information Act, and that the government is colluding with the Australian Federal and State governments in keeping this information secret from New Zealanders and Australians," said Sue Kedgley, the Green Food Safety spokesperson.

6 NOVEMBER 2003
NEW ZEALAND: Intelligence Agencies to Become More Transparent
Scoop.com (New Zealand) have posted on their website a New Zealand Government press release indicating that the government intends to declassify Security Intelligence Service (NZSIS) material for release where possible.

The Prime Minister and Minister in Charge of the New Zealand Security Intelligence Service, Helen Clark, said today that the NZSIS has developed an archives policy for its records.

“Successive governments have encouraged greater openness by the NZSIS, to the extent compatible with security and privacy”, Helen Clark said.

“In that context, and as the fiftieth anniversary of the foundation of the Service approaches in 2006, I agreed with the Director of Security that it was time to develop a policy framework for making decisions on the retention, destruction, and/or declassification of Service archives. That policy has now been completed and will be put into effect.”

Helen Clark acknowledged the constructive role which other relevant officials had played in developing the policy. The Chief Archivist, the Chief Ombudsman and the Privacy Commissioner, and appropriate members of their respective offices, and the Inspector-General of Intelligence and Security, had all been consulted and had made helpful comments. Their advice had been taken into account in finalizing the document.

29 AUGUST 2003
NEW ZEALAND: Official Defies Prime Minister's Request
Stuff Magazine (New Zealand) reports that Mark Prebble, head of the Department of Prime Minister and Cabinet, said yesterday he had decided to treat the Prime Minister's request for Corngate documents as a request under the Official Information Act, leading to the withholding of all advice from the department.

Policy adviser Ruth Wilkie had dissented, saying in a memo to Dr Prebble: "I do not agree with your view that this should be regarded as a normal release (and hence that these notes would usually be withheld)."

In his defense, Dr Prebble said he had applied the convention that preserves the confidentiality of advice to ministers. "The convention is what it is - the done thing. If I don't keep doing the done thing, it's not a convention any more."

He had known Miss Clark wanted all the information "out there".

"I knew she had not said, 'And I want Official Information Act rules to apply'. I believed I had an obligation to take account of the constitutional dimensions so I still did."

Yet in doing so he had not applied another important convention, that officials should not give their ministers "nasty surprises".

He had looked at the four relevant memos individually and made a "high speed judgment" whether the public interest would be served by releasing them. "I understood that there was nothing in those documents that wasn't reflected in other documents."

So though he had knowingly withheld documents, he had not knowingly withheld information. He now accepted he was wrong in thinking all the information was to come out.

Notes

1. http://www.uni-wuerzburg.de/law/nz01000_.html

2. Official Information Act 1982. http://www.ombudsmen.govt.nz/official.htm

3. Commissioner of Police v Ombudsman [1988] 1 NZLR 385.

4. Office of Ombudsman Homepage: http://www.ombudsmen.govt.nz/

5. Alastair Morrison, "The Games People Play: Journalism and the Official Information Act," in The Official Information Act: Papers presented at a seminar held by the Legal Research Foundation, 1997.

6. Marie Shroff, "Behind the Official Information Act: Politics, Power and Procedure" in The Official Information Act: 1997.

7. Steven Price, "The Official Information Act 1982: A window on Government or curtains drawn?", Victoria University of Wellington, 2005 p.24, http://www.lawschool.vuw.ac.nz/vuw/fca/law/files/Occasional_Paper17.pdf

8. Ombudsman, Annual Report 2004-05.

9. Law Commission, Review of the Official Information Act 1982.

10. See Paul Bellamy, NZ Parliamentary Library, Background Paper No. 27 on Access to Official Information, May 2003.

11. Steven Price, id.

12. Inquiry misled over 'lie in unison' memo, NZ Herald, 30 July 2003.

13. Ombudsman's Report upon the Actions of the Department of Labour. http://www.ombudsmen.govt.nz/Own%20Motion%20Report.htm

14. Local Government Official Information and Meetings Act 1987. http://www.ombudsmen.govt.nz/local.htm

15. Privacy Act 1993.

16. Homepage: http://www.privacy.org.nz/

17. Private Word, Issue No.20, November 1998, http://www.privacy.org.nz/privword/nov97pw.html

18. Cabinet Directive on Security Classification. CO (82) 14, 17 December 1982. http://www.security.govt.nz/sigd/sigd4a.html. See Security in Government Departments Manual 1994. http://www.security.govt.nz/sigd/index.html

19. See NZ Archives, Public Records Legislation. http://www.archives.govt.nz/about/legislation.html

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