The Official Information Act 1982 (OIA) is a statute of the New Zealand Parliament that creates a public right to access information held by government bodies. It is New Zealand's primary freedom of information law and an important part of New Zealand's constitutional framework.
The guiding principle of the act is that official information should be made available unless there is good reason for withholding it.OIA, section 5. Requests to government departments or state agencies for information must be answered "as soon as reasonably practicable", and within 20 working days.OIA, section 15. If an agency declines to provide the information, it must provide a reason and advise the requester that they have the right to ask the Ombudsman to investigate whether or not that decision is justified under the provisions of the act.OIA, section 19. Approximately 45,000 requests are made under the act each year, with over 90% of them answered within statutory timeframes.
There have been repeated proposals for reform and further improvements to transparency over the act's lifetime, including major reviews by the New Zealand Law Commission in 1992 and 2012, but it has not been significantly reformed since 1987.
Background
Prior to 1982, official information was assumed to be the property of the government, not the people.Law Commission (1997), para C12. Under the Official Secrets Act 1951, disclosure of information by public servants without specific reason and authorisation was a criminal offence. The law "positively discouraged information release".Joseph (2001), p. 149 However, from the 1960s onwards, there was increasing pressure for openness. In 1962, a Royal Commission of Inquiry into state services declared that "Government administration is the public’s business, and that the people are entitled to know more than they do of what is being done, and why." The creation of the Office of the Ombudsman and changes of administrative law created a presumption that people were entitled to know the reasons for decisions made about them. Environmental campaigns such as the Save Manapouri campaign and the passage of freedom of information legislation overseas created further pressure. A freedom of information bill was introduced to parliament by opposition Labour MP Richard Prebble in 1977 but this failed to progress beyond a second reading. In 1979, the Coalition for Open Government explicitly campaigned for greater access to official information as part of its opposition to Robert Muldoon's Think Big programme.
In 1978 the government established the "Committee on Official Information" (also known as the "Danks Committee" after its chair) for the purpose of "considering the extent to which official information can be made readily available to the public". As part of this, the committee was to review the application of the Official Secrets Act 1951 and "advance appropriate recommendations on changes in policies and procedures which would contribute to the aim of freedom of information". In 1980 it reported back, recommending the replacement of the Official Secrets Act with a new Official Information Act, based on a principle of openness. In 1981 the committee released a supplementary report with recommendations about the oversight and administration of the act and the treatment of classified information. In 1982 these ideas were passed into law as the Official Information Act by the National Government. Former Prime Minister and Law Commissioner Geoffrey Palmer credits then-Minister of Justice Jim McLay for the act, saying that he managed to pass it in the face of opposition from both Prime Minister Robert Muldoon and the Treasury.
As originally enacted, the act included a clause protecting information regarding "competitive commercial activities" by the government, and included no deadline for responding to requests. Agencies merely had to respond "as soon as reasonably practicable", which led to frequent delays. Ministers could also over-rule a decision by the Ombudsman to release information simply by recording that decision in writing. The act underwent major reform in 1987 to provide further transparency.Official Information Amendment Act 1987 A public interest test was imposed for commercially sensitive information, the 20 working day time limit was imposed, and over-ruling the Ombudsman now required a formal Order-in-Council. Since then the act has received only minor, technical amendments, and its major features have remained unchanged.
The act
Scope The scope of the act is extremely broad compared to other international freedom of information laws, and includes all information held by any Minister in their official capacity, or by any government department or organisation (as listed in the schedules to the act or the Ombudsmen Act 1975). This includes almost all government agencies, including ministries, intelligence agencies, hospitals, universities, schools, crown entities, and state-owned enterprises. Some non-government agencies are also included, such as certain officers of parliament. The act does not apply to the courts, the Parliamentary Service, quasi-judicial agencies such as the Independent Police Conduct Authority and Inspector-General of Intelligence and Security, or to local government (which is covered by the Local Government Official Information and Meetings Act 1987).
The act applies to "information", regardless of form, not just documents, and includes "not only recorded data but also knowledge of a particular fact or state of affairs held by officers in a named organisation or Department in their official capacity". This technology-neutral definition has allowed the act to cope with the significant changes in information technology since the 1980s. Information held in an official capacity by employees, and information held by subcontractors, subsidiary companies, and unincorporated advisory bodies is all captured by the act.OIA, section 2.
Request process The act creates a regime by which people can request and receive information held by government officials and bodies. Any person in New Zealand, or any New Zealand citizen or permanent resident, can lodge a request.OIA, section 12. Requests must specify the information they are seeking with "due particularity" and can be made in any form and communicated by any means. They can be made online, and there is no requirement for requesters to provide reasons for their request, or even their real name.
Agencies subject to the act have a statutory duty to provide reasonable assistance to requesters,OIA, section 13. and must transfer requests for information held by other bodies to the appropriate agency so that the request can be answered.OIA, section 14. Agencies must make a decision on whether to release requested information as soon as reasonably practicable, with an upper limit of 20 working days after receiving the request, though this time-limit can be extended for large or complex requests.OIA, section 15A. Organisations may charge for responding to large requests, but this is rare.Price (2005), p. 25 Any charge set must be reasonable.
Withholding grounds The guiding principle of the New Zealand act is the principle of availability which states: "That information shall be made available unless there is good reason for withholding it". "Good reason" is defined in the act, and is split into two categories: "conclusive reasons", which are not subject to a public interest test, and "other reasons", which must be balanced against the public interest in release. Conclusive reasons for agencies to withhold information include:OIA, section 6. releasing the information would compromise the national security or international relations of New Zealand. An additional clause protects the security and international relations of dependent territories such as Tokelau and states in free association such as the Cook Islands and Niue.OIA, section 7. the information requested was supplied by another government in confidence releasing the information would compromise the maintenance of the law, (including but not limited to the prevention, investigation, and detection of offences, and the right to a fair trial.) releasing the information would endanger a person's safety releasing the information would cause severe economic damage.
Other reasons to withhold information include:OIA, section 9. Subsection Reason 9(2)(a) To protect the privacy of natural persons, including that of deceased natural persons. 9(2)(b)(i) To protect information where the making available of the information would disclose a trade secret. 9(2)(b)(ii) To protect information where the making available of the information would be likely unreasonably to prejudice the commercial position of the person who supplied or who is the subject of the information. 9(2)(ba)(i) To protect information which is subject to an obligation of confidence or which any person has been or could be compelled to provide under the authority of any enactment, where the making available of the information would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied. 9(2)(ba)(ii) To protect information which is subject to an obligation of confidence or which any person has been or could be compelled to provide under the authority of any enactment, where the making available of the information would be likely otherwise to damage the public interest. 9(2)(c) To avoid prejudice to measures protecting the health or safety of members of the public. 9(2)(d) To avoid prejudice to the substantial economic interests of New Zealand 9(2)(e) To avoid prejudice to measures that prevent or mitigate material loss to members of the public. 9(2)(f)(i) To maintain the constitutional conventions for the time being which protect the confidentiality of communications by or with the Sovereign or her representative. 9(2)(f)(ii) To maintain the constitutional conventions for the time being which protect collective and individual ministerial responsibility. 9(2)(f)(iii) To maintain the constitutional conventions for the time being which protect the political neutrality of officials. 9(2)(f)(iv) To maintain the constitutional conventions for the time being which protect the confidentiality of advice tendered by Ministers of the Crown and officials. 9(2)(g)(i) To maintain the effective conduct of public affairs through the free and frank expression of opinions by or between or to Ministers of the Crown or members of an organisation or officers and employees of any department or organisation in the course of their duty; or 9(2)(g)(ii) To maintain the effective conduct of public affairs through the protection of such Ministers, members of organisations, officers, and employees from improper pressure or harassment 9(2)(h) To maintain legal professional privilege. 9(2)(i) To enable a Minister of the Crown or any department or organisation holding the information to carry out, without prejudice or disadvantage, commercial activities. 9(2)(j) To enable a Minister of the Crown or any department or organisation holding the information to carry on, without prejudice or disadvantage, negotiations (including commercial and industrial negotiations). 9(2)(k) To prevent the disclosure or use of official information for improper gain or improper advantage.
These reasons must always be balanced against the public interest in release. The Ombudsman has extensive guidance available on public interest factors which may apply to any particular request, including transparency, participation, accountability, and the administration of justice. Only limited withholding grounds apply to requests for internal rules affecting decisions,OIA, section 22. or to requests by individuals for the reasons for decisions about them.OIA, section 23.