Guest Post: Our Official information Act

A guest post by Mikenmild:

A while ago, Nostradamus suggested I contribute a piece for Kiwiblog on the Official Information Act (). As a person with some experience of answering information requests, and of seeking information, I’m happy to do so.

I want to start with some practical advice. There are fairly often comments on Kiwiblog about making requests, typically “someone should OIA that”. People should use the OIA: it’s a great tool.

There is possibly no single piece of New Zealand legislation better known to the public than the OIA. And it is easy to use. But here are three tips:

  • Search for the information yourself first. There is a wealth of information already publicly available. In fact, one of the purpose of the OIA is to ‘improve progressively the availability if official information‘.Most public sector organisations make genuine efforts to publish more information. And searching for what is out there already will probably help you make a better request.
  • Check fyi.org.nz. This is a wonderful website run by Open New Zealand (about which I know little but that it appears to be a group of largely anonymous public-spirited citizens). It makes information requests on behalf of anyone who cares to use the site, and publishes all the information received in response. It is useful for anyone who would like to request information anonymously, for example someone making a request for information from their own department ;-).
  • Be as detailed and specific as you can in making a request. This makes it easier for someone to respond to your request, and reduces the chances of your request being rejected outright, or you getting a reply asking you to pay to photocopy 10,000 pages.
  • Remember that most public servants actually do want to help. Outright obstruction is rare. Provide your contact details in your OIA request, and make it clear you would be happy to clarify anything.

Now, read on if you would like to know more about the OIA, and how practice around it has developed.

New Zealand’s OIA was part of a general trend in democracies from the 1960s to improve public access to government information. While Scandinavian countries had some freedom of information laws as long as two hundred years ago, significant impetus was provided by the USA’s 1966 Freedom of Information Act, followed by similar liberalisation in Western Europe.

Nearly forty years old, the OIA, with its local government counterpart, quickly became part of New Zealand’s uncodified constitution. The OIA represented a radical change from previous practice. In most jurisdictions, government information has been at least traditionally, and often legally, restricted. New Zealand’s OIA replaced an Official Secrets Act, which had prohibited any unauthorised disclosure of any government information.

Our OIA established the key principle of availability: information shall be made available unless there is good reason for withholding it. This presumption of public access to official information was based on the premise that it would allow New Zealanders to more effectively participate in law making and administration, and would promote the accountability of government ministers and officials. As the legal maxim puts it

‘Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.’

But the presumption of public access does not mean that all official information is released. The availability principle contains the proviso for withholding information for good reasons. The OIA established two sets of reasons for withholding information. Conclusive reasons generally apply where releasing information would prejudice key public interests, such as maintaining public safety, national security or international relations, managing economic policies, or safeguarding criminal investigations and fair trials. The key consideration here is the judgement of ministers or officials as to whether releasing the information requested would be likely to damage these interests.

The OIA has a further set of reasons for withholding information. These include personal privacy, protecting trade secrets and commercial interests, maintaining constitutional conventions, and the effective conduct of public affairs. In deciding whether to withhold information for any of these reasons, however, a public interest test is applied. That means such reasons cannot apply if outweighed by a stronger public interest in making the information available. An example of this could be an agency releasing details of tenders, usually thought to be commercially sensitive, if there were a wider public interest in establishing the probity of a decision.

There are other, more technical, reasons to withhold information, such as if the information does not exist or cannot be found, would require excessive collation or research to provide, or would soon be published anyway. Agencies can also refuse to confirm or deny the existence of some information.

Supervising the operation of the OIA is the Ombudsman. Originally a Scandinavian institution, an Ombudsman was established in New Zealand in the 1960s to provide an independent authority to investigate citizens’ complaints against the government. In the 1980s, the Ombudsman’s jurisdiction was extend to to reviewing complaints against decisions about official information. The Ombudsman is an Officer of Parliament, which affords him or her a considerable degree of independence from the government of the day. The Ombudsman can review complaints against decisions to withhold information, and the outcome of the review is generally binding upon the agency concerned. The Ombudsman has established a considerable body of decisions that have shaped how the OIA has worked in practice.

That’s the basics of why we have an OIA, and how it works. Now, to examine what happens in real life.

No government relishes being held to account. Government ministers, their advisers, and public servants (sometimes reluctantly) can slow down, or obstruct completely, the release of information.

The most common problem is the delayed release of information. The power of delay is proverbial (fans should consult C Northcote Parkinson re ‘The Law of Delay’). Requests for official information must be responded to within 20 working days (with a extended period over the Christmas and New Year holidays). This period is only supposed to be extended for two reasons: to search a large amount of information, or to consult properly on the request. This rather modest proviso allows, unsurprisingly, wide scope for delay. Organisations sometimes try to issue multiple extensions of the time limit for the same request – this is a no no, but they often get away with it. Organisations might also attempt to extend the time limit to a date far, far in the future. This too is prohibited, as the act requires decisions on the release of information to be made ‘as soon as reasonably practicable’. Arbitrary extensions of response time are distinctly unreasonable. Also unreasonable is deliberately withholding information until the 19th or 20th working day.

One problem that developed since the 1990s has been the habit of departments referring information requests to ministerial offices. Technically, this can be justified under a ‘no surprises’ policy. Practically, however, if affords an opportunity for a minister’s political staff (press secretaries and their ilk) to interfere in, or delay, a response. This practice also allows ministers and their advisers to ‘game’ the process, most notoriously by releasing the information to friendly journalists or bloggers as well, or even providing those outlets with further details not covered by the original request. Departments, quite naturally, tend to defer to suggestions from their ministers’ staff. Unless a request involves information actually held by a minister, there should really be no need for a department to do anything other than inform its minister that information has been released.

The ultimate delaying tactic, however, is to refuse to release information, even when it is pretty clear that this is not justified by any of the reasons specified in the act. This effectively challenges a frustrated requester to complain to the Ombudsman. The Ombudsman is a wonderful institution, and frequently upholds complaints about refusals to release information. The Ombudsman’s processes can be cumbersome. They are thorough, but not especially timely. It is impossible to imagine the OIA working at all without the backstop the Ombudsman’s authority provides.

Despite these impediments, the OIA actually works rather well. Given some research, imagination and persistence, an amazing range and volume of information can be obtained. And we all benefit from better information about what the government is doing on behalf of us all.

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