Consultations of the Task Force with other Jurisdictions on their Access to Information Regimes

New Zealand

Access to Information Regime

In 1978 the government established a committee made up of senior government officials and two academics (known as the “Danks Committee”, after the chair) to study access to government information. The government introduced the Danks Committee draft bill in 1981. It has been theorized that because the bill was designed by government insiders, it was more acceptable to the political and bureaucratic leadership, and has thus been more readily incorporated into the life of the public service.

The Official Information Act, based on the principle that government information shall be made available unless there is a good reason for withholding it, was brought into force in 1982, reversing the presumption of secrecy contained in the Official Secrets Act. The purpose clause of the Act (Section 4) states that the purpose of the Act is “to increase progressively the availability of official information to the people of New Zealand” in order to enable effective participation, promote accountability and enhance respect for the law. That section goes on to say that the Act is also intended to “protect official information to the extent consistent with the public interest and the preservation of personal privacy.”

The Act covers ‘official information’ which is widely taken to mean any information held by Ministers in their official capacity, by departments and by organizations. The information does not have to be recorded (and can include information in the memory of those covered by the Act).

The Act also contains the principle that information shall be made available unless there is a good reason to withhold it. Among other things, this principle makes it clear that neither the intended or potential use of the information nor the identity of the requester are germane to the decision on availability.

The ‘good reasons’ for withholding information are set out in the Act, and only appear to resemble the exemptions contained in the legislation of other jurisdictions. The exemptions concentrate on the likely consequences of disclosure. There are no defined classes of documents that either may or need not be released. Instead the Act defines those public interests that do or may override the principle that information is to be available. Reasons may be conclusive: eg. if release would be likely to prejudice the defence and security of New Zealand; or reasons may be contingent, in that they justify withholding the information unless other circumstances mean that it is in the public interest to disclose.

The redress mechanism is through a complaint to the New Zealand Ombudsman. The Ombudsman makes recommendations which become binding 21 days after the recommendation is made. The Act originally included a provision for a Minister to veto a recommendation of an Ombudsman, but it was amended in 1987 to change the location of the veto to the Executive Council. There have been no vetoes since then.

The Law Commission of New Zealand reviewed the Official Information Act 1982 in 1997. That review identified four main problems: the burden of large, broadly defined requests; tardiness in responding to requests; resistance by agencies outside the core State sector; and the absence of a co-ordinated approach to policy advice and education regarding the Act and other information issues. The review did not recommend any dramatic changes to the legislation.

Generally, there is agreement that the Act has worked well over the last 20 years. Many commentators are of the view that the unique evolutionary and consequential approach of the New Zealand legislation to the release of information has yielded better results than the more ‘legalistic’ approach taken in most Western jurisdictions.

The use of the Act has increased significantly in the past few years, especially by opposition Members of the Legislature and the media. New Zealand has adopted a political convention of coalition governments, and this has resulted in an increase in requests from Members of the Legislature and the research services of political parties. Lobby groups and academics are now also frequent users of the Act. There seems to be a low proportion of commercial requests, perhaps because an effort is made to put information on government contracts on departmental Web sites. It is also possible that some government departments do not receive many commercial requests because they are more likely to be directed to the State Owned Enterprises or the Crown Research Institutes.

The concerns of officials are largely related to resourcing the activity and meeting demand. Although the Act contains a requirement for ‘due particularity’ of requests, departments perceive that there is a problem with ‘fishing expeditions’, which may be ill-directed, naive or deliberately vague. They do not believe the solution is legislative, as it could be difficult to craft a provision to deal with this issue. Fee estimates can be used to encourage requesters to focus their requests. Dialogue with requesters to help them frame their requests is also becoming a common practice now that the volume of requests has grown.

The individual who holds the information has the authority for responding to a request for access, and decisions are usually made by program area managers. In the rare circumstance where there is a disagreement on disclosure between the manager and the Minister, then the Minister may take the responsibility for the decision, however the vast majority of requests are handled without Ministerial involvement.

Training in the application of the Act is erratic; most people learn about the Act after they’ve been given a request to answer. Advice on the application of the Act comes from legal services units in each department. The Office of the Ombudsman also issues practice guidelines and a quarterly information bulletin.

From time to time there are problems with not meeting the 20 working-day timeframe provided in the Act. There are also growing problems with information management, and increasing problems with under-funding of the access system. Some people believe that the coverage of government institutions with a commercial mandate also raises concerns.

Generally the relationship between departments and the Office of the Ombudsman is good, and everyone works to keep it that way.

While the New Zealand system of access to information is held by some commentators to be one of the best, users still complain about the application of fees and delays in the processing of requests.