8.20 The Official Information Act balances the Act's purpose of progressively increasing the availability of official information against the need to protect official information to the extent consistent with the public interest and the preservation of personal privacy.
8.21 The purposes of the Act, as set out in section 4, include the promotion of good government and the enhancement of respect for the law by increasing the availability of official information progressively, in order to enable more effective public participation in the making and administration of laws and policies, and promote the accountability of Ministers and officials.
8.22 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.
8.23 “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 (including a Parliamentary Under-Secretary) in his or her official capacity.
8.24 Information held by a Minister in his or her capacity as a member of a political party or as a member of Parliament, such as caucus material, is not official information for the purposes of the Act.
8.25Ministers 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.
8.26The Attorney-General when performing law officer functions is not subject to the Official Information Act. Information held by the Attorney-General in this capacity is not, therefore, official information in terms of the Act.
8.27Information 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, such information is also deemed to be official information held by the relevant Minister or department.
8.28The definition of information is not confined to information on paper. Official information can include sound recordings, film, computer records, emails, text messages, and information known to a department, Minister, or organisation but not recorded in writing. 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 existing information accessible to others. There is no obligation to form an opinion or create information in order to respond to a request.
8.29Access by individuals to information about themselves is governed by the Privacy Act (see paragraphs 8.66 – 8.77). 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. In addition, the Official Information Act governs the right of requesters to be given reasons for decisions or recommendations that have affected them in their personal capacity, whether the requester is an individual or a corporate entity.
8.30 Requests under the Official Information Act 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.
8.31Departmental chief executives, and the boards and chief executives of agencies in the wider state sector that 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 the relevant staff.
8.32Ministers and officials must offer reasonable assistance to those requesting information under the Act (section 13) and assess each piece of information requested against the criteria in the Act. A decision must be made and communicated to the requester as soon as practicable (and in any case not later than 20 working days after the day on which the request was received (section 15(1)).
8.33If consideration is being given to withholding information under one of the provisions of section 9(2), section 9(1) requires that an assessment be made in every case as to whether the public interest in release outweighs the need to withhold the information.
8.34 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 promptly and 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, 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.
8.35 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 within the 20-working-day period after receiving the request. The Ombudsman can investigate complaints about extensions. In addition, undue delay in releasing information may be deemed to be a refusal if the delay is investigated or reviewed by the Ombudsman.
8.36 The Act also provides requirements for the contents of the notice to the requester if it is advising of a refusal (section 19), where the information is not provided in the way preferred by the requester (section 16), or where information has been deleted or altered (section 17).
8.37 Ministers and departments may approach the Office of the Ombudsman 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 Ombudsman the chance to talk through the issues and the relative strengths of the likely arguments if a review were to be sought.
8.39There is no blanket exemption for any class of papers under the Official Information Act. 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 8.43 for guidance on requests for documents with security classifications.
8.40 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 8.133 – 8.134). The Cabinet Office is available, however, for general guidance if departments have queries about the process for releasing Cabinet material. Departments who receive requests for the release of Cabinet material of a current government should consider whether the request should be transferred to the responsible Minister (see paragraph 8.34).
8.43A 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, 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. It is good practice therefore to consult the author of the document before releasing it. Such a flag may become less relevant with the passage of time.
Consultation on Official Information Act requests
8.45 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. See paragraph 8.35 for information on extending time limits, if necessary, to undertake consultation (section 15A of the Act). The outcome of any consultation on Official Information Act requests should be recorded in accordance with normal, prudent business practice (see paragraph 8.96).
8.46 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.
8.48 When considering a request, a department should consult another department when the information sought:
- was produced with substantial or critical input from that other department; or
- contains material that relates to the activities of the other department or that may result in publicity for that department.
8.49 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 8.134.
8.50 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 such material relates to his or her activities as a Minister. It should be clear that the department is consulting rather than providing the request for the Minister's information, and sufficient time should be allowed for the Minister's office to raise any concerns about the proposed decision. The decision on how to respond to the request must nonetheless be made by the department, in accordance with the Official Information Act. It is good practice for Ministers and departmental chief executives to agree on how consultation arrangements on Official Information Act requests will be handled generally.
8.51Departments should consider whether the information requested of them is more closely connected with the Minister's functions (as set out in paragraph 2.22). If so, the request should be transferred to the Minister under section 14 of the Official Information Act (see paragraph 8.34). For example, a request should be transferred if it is for information that relates to executive government decision-making functions, or for information that could, if released, prejudice the Minister’s ability to perform these functions.
8.52 On being consulted, the Minister may take the view that information that 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 Act can be satisfied. Each case of this kind needs to be handled carefully at a senior level within the department, with reference to the Minister if necessary. Where the request is not transferred to the Minister, the views of the Minister are not determinative, and an assessment needs to be made by the department as to whether any of the withholding provisions apply.
8.53 A department should advise its Minister if it intends to release any information that is particularly sensitive or potentially controversial, in accordance with the “no surprises” principle (see paragraph 3.22). A notification for this purpose is not the same as consultation and should not unduly delay the release of information.
8.55 Sometimes requests are directed at or affect several Ministers or departments. In these cases, recipients of a request could consider the requirement in section 14 to transfer a request, or part of a request, where the information is more closely connected with the functions of another department or Minister or organisation.
8.56It 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.
8.57Departments may participate in cross-government forums to develop best practice in responding to Official Information Act requests. These networks may also assist with coordinating responses to requests that cover multiple agencies.
8.58 The Ministry of Justice has issued guidelines on what the government regards as reasonable charges for the purposes of the Official Information Act. 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. The Office of the Ombudsman has also published guidance on charging on its website.
Review of decisions to withhold official information
8.59 A person who has requested official 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 5 of the Official Information Act.
8.60Where 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 set out the real concerns about the request.
8.61The 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 conduct investigations in private and maintain secrecy except as provided for under sections 21(3) to (5) of the Ombudsmen Act 1975.
8.62 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.
8.63Before making a recommendation, it is the Ombudsman's practice to first provide the Minister or department with a provisional opinion for comment, and to arrange for any other affected party to be consulted. The Ombudsman may also offer to discuss personally any case where his or her opinion differs from that of the holder of the information.
8.64The 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 the release of the information, but may recommend that the department or Minister concerned give further consideration to making the information available.
8.65 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). Any such Order in Council:
- must set out the reasons for which it is made;
- must be published in the New Zealand Gazette;
- must be laid before the House of Representatives as soon as practicable;
- must be given to the Ombudsman who made the recommendations; and
- may be subject to review by the High Court and the appeal courts.