8.13 The Official Information Act 1982 balances the public's right of access to official information against the government's need to withhold information where there is good reason to do so. Section 5 of the Act sets out the key principle of availability:
The question whether any official information is to be made available, where that question arises under this Act, shall be determined, except where this Act otherwise expressly requires, in accordance with the purposes of this Act and the principle that the information shall be made available unless there is good reason for withholding it.
8.14 The purposes of making information available, as set out in section 4 of the Act, include the promotion of good government and enhancement of respect for the law by enabling more effective public participation in the making and administration of laws and policies, and increasing the accountability of Ministers and officials.
8.15 The key provisions of the Official Information Act are:
8.16 "Official information" is defined in section 2 of the Act as any information held by a department or organisation (as defined, "organisation" includes most agencies in the wider state sector) or a Minister of the Crown in his or her official capacity.
8.17 Information held by a Minister in his or her capacity as a member of a political party or as a member of Parliament, for example caucus material, is not official information for the purposes of the Act.
8.18 Ministers should always be clear about the capacity in which they are creating or using information. For example, a Minister corresponding about an electorate matter should sign as a member of Parliament.
8.19 The Attorney-General, when performing law officer functions, is not subject to the Official Information Act 1982. Information held by the Attorney-General in that capacity is not, therefore, official information in terms of the Act.
8.20 Information held by an unincorporated body such as a ministerial or departmental committee is treated as official information held by the Minister or department concerned. Where independent contractors or consultants carry out work on behalf of a Minister or department, that information is also deemed to be official information held by the relevant Minister or department.
8.21 The definition of information is not confined to information on paper. Official information can include sound recordings, film, computer records, emails, and knowledge carried in someone's head. Although an official or Minister could be required, under the Act, to write down information not yet in a written form, this is simply a means of making that information accessible to others. There is no obligation to "create" official information on something for which no information is held.
8.22 Access by individuals to information about themselves is governed by the Privacy Act 1993. (See paragraphs 8.52 - 8.56.) Access to official information about an identifiable person other than the requester, or where the requester is a corporate entity, is governed by the Official Information Act 1982. In addition, the Official Information Act 1982 governs the right of requesters to be given reasons for decisions or recommendations that have affected them in their personal capacity, whether or not the requester is an individual or a corporate entity.
8.23 Requests under the Official Information Act 1982 must be dealt with carefully, conscientiously, and in accordance with the law. Ministers are personally responsible for complying with the duties imposed on them by the Act. Ministers must therefore ensure that staff in their offices are familiar with the legislation and have access to appropriate guidance.
8.24 Departmental chief executives, and the boards and chief executives of agencies in the wider state sector (where those agencies are subject to the Act) are responsible for ensuring compliance with the Act within their organisations. They must actively ensure that adequate systems, information, and training are available to relevant staff.
8.25 In particular, Ministers and officials are reminded of the Act's requirements to offer reasonable assistance to those requesting information under the Act (section 13) and to respond to requests as soon as practicable (and in any case not later than 20 working days after receipt of the request - section 15(1)).
8.26 Under section 14 of the Act, the Minister or organisation that receives a request may be required to transfer it to another Minister, department, organisation, or local authority. The transferee should be consulted before the transfer is made. Transfers must be made within 10 working days of receiving the request, and the requester must be informed. A transfer of a request is not subject to review by an Ombudsman under the Official Information Act 1982, but may be investigated under the Ombudsmen Act 1975, where the transfer was made by a department or other agency subject to the Ombudsmen Act 1975.
8.27 The Act provides for extensions of time limits for response or transfer if the request is for a large quantity of information, or if consultation is necessary to make a decision on the request. The requester must be informed of any such extension. Undue delay may be deemed to be a refusal if the delay is investigated or reviewed.
8.28 The Act also provides requirements for the contents of the notice to the requester advising of a refusal (section 19), where the information is not provided in the way preferred by the requester (section 16), and where information has been deleted or altered (section 17).
8.29 Ministers and departments may approach the Office of the Ombudsmen for guidance about any official information request. This guidance can be offered only informally, as the Ombudsmen cannot make decisions that, legally, others should make. It may, however, avoid the need for a later review if an official information request can be discussed, giving the Office of the Ombudsmen the chance to talk through the issues and relative strengths of the likely arguments if a review were to be sought.
8.30 There is no blanket exemption for any class of papers under the Official Information Act 1982. Cabinet material is therefore covered by the Act in the usual way, and every request for Cabinet material must be considered on its merits against the criteria in the Act. See paragraph 8.34 for guidance on requests for documents with security classifications.
8.31 Departments or Ministers who receive requests for the release of Cabinet material of a current government must take the decision on release themselves, after consulting with other affected Ministers, departments, and agencies. (See paragraphs 8.36 - 8.42.) There is no requirement to consult the Cabinet Office on the release of Cabinet material, except in the case of Cabinet material of a previous opposition administration. (See paragraphs 8.83 - 8.84.) The Cabinet Office is available, however, for general guidance if departments have queries about the process for releasing Cabinet material.
8.32 As with Cabinet material that is released proactively (see paragraph 8.4), it is good practice to indicate on Cabinet material released under the Official Information Act 1982 that it has been approved for release.
8.34 A security classification or endorsement does not in itself provide good reason for withholding a government document. A decision to withhold must be made under the criteria of the Official Information Act 1982, as for all other official information. The security classification or endorsement determines how a document is handled within the government system, not whether it can be released externally. However, a high security classification or endorsement may provide a useful "flag", indicating that there may be good reason for withholding the document (or part of it) under the Official Information Act 1982. It is good practice therefore to consult with the author of the document before releasing it. This "flag" may become less relevant with the passage of time.
8.36 The Act envisages that Ministers or organisations dealing with requests may need to consult other Ministers or organisations before making a final decision on responding to requests for official information they receive. See paragraph 8.27 for information on extending time limits, if necessary, to undertake consultation (section 15A of the Act).
8.37 When considering a request, Ministers (either directly or through their office staff) should consult other Ministers who have an interest in the subject matter of the request. Where a request seeks information that is particularly sensitive or potentially controversial, the Minister should also consider advising the Prime Minister's office. Responsibility for the request, however, remains with the Minister who received the request. From time to time, the Prime Minister may issue guidance to Ministers' offices setting out consultation protocols.
8.38 Special consultation arrangements apply to the release of Cabinet records that date from a previous opposition administration. (See paragraph 8.84.)
8.39 The State Services Commission has issued guidelines on the need for coordination and consultation between government departments about requests for official information. The document Release of Official Information: Guidelines for Coordination is available on the State Services Commission website, www.ssc.govt.nz. This document states that a department should consult another department when the information sought:
8.40 Departments must advise the Cabinet Office as soon as possible of any requests for Cabinet documents dating from a previous opposition administration, to allow the Cabinet Office sufficient time to undertake consultation as set out in paragraph 8.84.
8.41 A department may consult its Minister about any request for official information it receives. A department should consult its Minister if the request relates to Cabinet material, because this material relates to his or her activities as a Minister. A department should advise its Minister if it intends to release any information that is particularly sensitive or potentially controversial. The decision on how to respond to the request must nonetheless be made by the department, in accordance with the Official Information Act 1982.
8.42 On being consulted, the Minister may take the view that information, which the department considers should be released, should not be released. In such a case, transferring the request to the Minister may be an appropriate way forward, if the requirements of section 14 of the Official Information Act 1982 can be satisfied. Each case of this kind needs to be carefully handled at a senior level within the department, with reference to the Minister if necessary.
8.43 Sometimes requests are directed at or affect several Ministers or departments. In these cases, a coordinated response should be aimed for by transferring - where possible - all the requests to the department or Minister that would be expected to coordinate policy development on the issue in question. It will not always be obvious that other departments and Ministers have had the same request addressed to them; requests that are potentially "common" should be checked with other departments or Ministers. (See also the State Services Commission guidance entitled Release of Official Information: Guidelines for Coordination, www.ssc.govt.nz.)
8.44 The Ministry of Justice has issued guidelines on what the government regards as reasonable charges for the purposes of the Official Information Act 1982. These guidelines should be followed in all cases unless good reason exists for not doing so. The guidelines are available from the Ministry of Justice website, www.justice.govt.nz.
8.45 A person who has requested information can ask an Ombudsman to investigate a decision by a Minister or a department to refuse to supply all or part of any official information requested. The procedures for reviews are set out in Part V of the Official Information Act 1982.
8.46 Where an Ombudsman undertakes a review, the Ministers, departments, and organisations concerned must comply fully with the requirements of the Act. An Ombudsman will not be content to accept superficial assertions or the use of a blanket provision, such as "free and frank discussion", to justify non-release of information. A department or Minister will be expected to provide a detailed justification in each case, and should use the review as an opportunity to outline the real concerns about the request.
8.47 The Ombudsmen have extensive powers to request information for the purposes of the review. Ministers and departments must respond within 20 working days to any such request. This time limit may be extended by notice to the Ombudsmen. Ombudsmen and their staff are required to securely store and maintain the secrecy of all information provided to them. Once an Ombudsman has made a finding, the material will be returned to the Minister, department, or organisation concerned to take the appropriate action.
8.48 An Ombudsman, having investigated a complaint made under section 28 of the Act, will issue an opinion and may make such recommendations as he or she sees fit. If an Ombudsman considers that the original request should have been met, or that an unreasonable decision was taken, the Ombudsman will recommend to the Minister or department concerned the action to be taken.
8.49 Before making a recommendation, it is the Ombudsman's practice to first provide the Minister or department with a provisional opinion for comment before reaching a final opinion and to arrange for any other affected party to be consulted. The Ombudsman will also offer to discuss personally a case where his or her opinion differs from that of the holder of the information.
8.50 The Prime Minister may certify that the release of information would be likely to prejudice matters such as the security of New Zealand, or the Attorney-General may certify that release would be likely to prejudice such matters as the prevention of offences. In such cases, an Ombudsman cannot recommend release of the information, but would recommend that the department or Minister concerned give further consideration to making the information available.
8.51 The information holder has a public duty to observe an Ombudsman's recommendation after 20 working days from receiving the recommendation. This public duty applies unless the Minister, having obtained the agreement of Cabinet, advises the Governor-General to make an Order in Council directing otherwise. (See sections 32(2) and 32(3)(a) of the Official Information Act 1982.) Any such Order in Council:
To date, no Order in Council of this nature has been made.