What you need to know

1. MINISTRY OF CULTURE AND HERITAGE30 November 2010Official information requests What are the requirements?Emma Leach Senior Business AdvisorOffice of the Ombudsmen

2. What you need to know Overview of the OIA: • Purpose • Key provisions Processing a request: • The requirements on agencies • Information about third parties The Ombudsmen: • Who they are and what they do

3. The pre-OIA years Official Secrets Act 1951 Assumed that official information • was the property of the government • should never be releasedwithout specific reason or authorisation Criminal sanctions if released • hard to get information released • led to public criticism and concern

4. A need for change • The public wanted greater access to information on the policies and activities of the government • Government officials recognised the need to keep the public informed and provide clear reasons for decisions

5. Introduction of the OIA 1980 Danks Committee Recommendations Replace the Official Secrets Act “…the Government should reaffirm its responsibility to keep the public informed of its activities and make official information available unless there is good reason to withhold it” 1982 Official Information Act 1987 Local Government Official Information and Meetings Act

6. The Constitutional Importance of the OIA The OIA enables the public to have timely access to adequate information so they can: • have a say and an opportunity to influence decision-making • hold the government to account for its decisions • understand why decisions were made

7. Key purposes of the OIA Section 4 to increase progressively the availability of official information: • to enable more effective participation • to promote accountability • to enhance respect for the law and promote the good government of New Zealand

8. Principle of Availability – Section 5 When deciding whether official information should be released, a government agency must follow the principle that: “the information shallbe made available unless there is good reason for withholding it”

9. Principle of Availability – Section 5 Sometimes the release of information can do more harm than good: • Breach privacy • Break a promise of confidentiality • Prejudice a commercial position or negotiations • Cause harm or danger

10. Key purposes of the OIA • to protect official information to the extent consistent with the public interest and the preservation of personal privacy • to increase the availability of official information: - toenable more effective participation - to promote accountability and - to enhance respect for the law and promote the good government of New Zealand

11. Favouring release Accountability vs Transparency Public participation in decision-making Favouring withholding Prejudice to: Privacy Commercial position Negotiations Confidential information Free and frank expressions of opinion Balancing competing public interests

12. What requests will trigger the OIA? Section 12 Requests can be made by any person who is: • a New Zealand citizen • a permanent resident of New Zealand • a person who is in New Zealand • a body corporate which is incorporated in New Zealand • a body corporate which has a place of business in New Zealand There is no set form in which to make a request

13. What is “official information”? Any informationheld by a government agency including: • Drafts • E-mails • Minutes of meetings • Notes • Maps • Photographs • Video and sound recordings • Texts • Information held by independent contractors engaged by the agency (relating to that contract) • Knowledge of a particular state of affairs held by officials in their official capacity

14. What is “official information”? No restrictions based on: • where the information is physically located • where the information was generated

15. What is “official information”? Any informationheld by a government agency including: • Drafts • E-mails • Minutes of meetings • Notes • Maps • Photographs • Video and sound recordings • Texts • Information held by independent contractors engaged by the agency (relating to that contract) • Knowledge of a particular state of affairs held by officials in their official capacity

16. Why does it matter? If a request is made to a government agency for official information, the rules of the OIA apply: • Timeframes must be met • Limited reasons for refusing requests • The principle of availability must be applied • Investigation and review by an Ombudsman

17. Which set of rules in the OIA? Part 2 requests for access to official information Part 4 requests for access to personal information about a body corporate Why the distinction?

18. Part 4Requests for personal information • Every person has a right to be given on request: • access to any personal information which is about that person • and which can be readily retrieved • There are only limited grounds for refusal • If the person is given access: • the agency must be sure it is sent to the correct person • they must be advised of their right to request correction of the information

19. Which set of rules? Part 2 requests for official information Part 4 requests for personal information about a body corporate Privacy Act requests for personal information about a natural person Part 3 requests for policies, guidelines and rules used for decision making & requests for reasons why a decision was made

20. Maximum time limits 20 working days maximum time limit for making a decision and communicating it to the requester 10 working days maximum time limit for transferring the request to another agency

21. Maximum time limits Time limits start • the day after the agency receives the request What is a working day? • Not weekends • Not public holidays • Not 25 December to 15 January

22. Maximum time limits 20 working days maximum time limit for making a decision and communicating it to the requester 10 working days maximum time limit for transferring the request to another agency

23. The legal obligations • Make a decision and communicate it to the requester: “as soon as reasonably practicable and in no case later than 20 working days after the day on which the request is received” • Release any information the agency has made a decision on without “undue delay”

24. Requests for urgency Section 12(3) “If the person making the request asks that [their] request be treated as urgent, [that person] shall give…reasons for seeking the information urgently”.

25. The legal obligations when urgency requested • Make a decision and communicate it to the requester: “as soon as reasonably practicable and in no case later than 20 working days after the day on which the request is received” • Release any information the agency hasmade a decision on without “undue delay”

26. Tools to manage requests • Consulting the requester • Transfer • Choosing the form in which information is released • Imposing conditions • Charging • Extensions • Consulting third parties • Refusing the request

27. Transferring a request • An agency must transfer if: • the agency doesn't hold the information but believes another central or local government agency does • the agency does hold the information, but believes the information is more closely connected with the functions of another central or local government agency • Must be done within 10 working days

28. Form in which information is released If the requested information is in document form an agency’s options for release include: • copy • inspection • summary • oral briefing • transcript • video/disc/tape The agency must provide the information in the way preferred by the requester unless doing so would: • impair efficient administration • be contrary to a legal duty, or • prejudice certain interests protected under OIA

29. Imposing conditions • OIA recognises that information may be released subject to conditions • Conditions usually relate to a legitimate need for the information not to be: • Disclosed publicly • Released out of context • Conditions are not enforceable under OIA – rely on trust

30. Extending the maximum time limits • May extend the time limits for transfer or for making a decision • A reasonable extension may be made if: • the request is for a large quantity of information or the agency needs to search through a large quantity of information and doing this within the original timeframe would unreasonably interfere with the operations of the agency OR • The agency needs to consult others to make the decision and because of this, a proper response to the request can’t reasonably be made within the original time limit

31. Consulting third parties • OIA recognises that agencies may consult third parties before making a decision on a request • This includes the subject of the information – who may have concerns about its release • The third party cannot veto release – the decision remains with the government agency

32. Tips for third parties • Be aware that the government agency has a set timeframe it must meet • If you need more time – tell the agency as soon as possible – the agency may be able to extend its timeframe for making a decision • If you have concerns with release, explain your concerns in detail – this will help the agency to consider whether there is good reason to refuse the request

33. Limited reasons to refuse a request Requests for official information under Part 2 of the OIA may only be refused for one of the reasons set out in the Act: • administrative reasons (section 18) • good reasons (section 9) • conclusive reasons (section 6)

34. Administrative reasons (section 18) • Release would be contrary to legislation or contempt of court • The information is, or will soon be, publicly available • The information does not exist or can’t be found • The information is not held by the agency • Substantial collation or research would be required • The request is frivolous or vexatious or the information requested is trivial

35. Good reasons (section 9) Some of the reasons for withholding information under section 9(2) are: • Privacy • A trade secret • Information held in confidence • Free and frank opinions • Legal professional privilege • Prejudice to commercial interests • Prejudice to negotiations Does not depend on the type of information requested - you need to identify a harm in release

36. When a section 9 ground becomes a “good reason” to refuse official information A two stage test: • Disclosure must cause a harm that is protected in section 9(2) 2. If so, the need to withhold information must not be outweighed by a public interest in release - section 9(1)

37. Favouring release Accountability vs Transparency Public participation in decision-making What if it’s a 50/50 call? Favouring withholding Prejudice to: Privacy; Commercial position; Negotiations; Confidential information; Free and frank expressions of opinion; Maintenance of the law Balancing competing public interests

38. When a section 9 ground becomes a “good reason” to refuse official information A two stage test: • Disclosure must cause a harm that is protected in section 9(2) 2. If so, the need to withhold information must not be outweighed by a public interest in release - section 9(1)

39. OIA request Please tell me how much your Chief Executive is getting paid and provide me with a breakdown of the total remuneration package

40. Privacy “if…withholding…is necessary to protect the privacy of natural persons, including deceased natural persons” Section 9(2)(a)

41. Favouring release Accountability vs Transparency Favouring withholding Prejudice to Chief Executive’s privacy Balancing competing public interests

42. OIA request Please tell me how much your receptionist is being paid

43. Favouring release Accountability vs Transparency Favouring withholding Prejudice receptionist’s privacy Balancing competing public interests

44. Conclusive reasons (section 6) If making the information available would be likelyto: • Prejudice the security or defence of NZ • Prejudice NZ’s international relations • Prejudice the maintenance of the law • Seriously damage NZ’s economy • Endanger the safety of another person No need to balance against public interest in release

45. The Ombudsmen Chief Ombudsman Beverley Wakem Ombudsman David McGee “The Ombudsman is Parliament’s man, put there for the protection of the individual, & if you protect the individual, you protect society”

46. The Ombudsmen Ombudsmen Act– investigate government conduct Protected Disclosures Act- guidance for whistleblowers Crimes of Torture Act-monitor places of detention Disabilities Convention – protect and monitor OIA and LGOIMA

47. Role of the Ombudsmen • The Ombudsmen can investigate complaints about: • refusals of requests • delays • charges • manner of release • conditions on use, communication, publication • extensions of time limits for responding • decisions to transfer

48. Investigation by an Ombudsman Conduct investigations in private Take an oath of secrecy Can require information and documents to be produced on demand

49. Investigation by an Ombudsman Ombudsmen form an independent opinion whether the agency met the requirements of the OIA The Ombudsmen will consider the views of any third party that may be affected Ombudsmen expect agencies and third parties to provide material to support any concerns with release

50. Contact Us Please feel free to contact the Ombudsmen website: www.ombudsmen.parliament.nz - Pamphlets - Guidance - Annual Reports free-phone: 0800 802 602