Section
14 of the Bill
of Rights Act states that "Everyone has the right
to freedom of expression, including the freedom to seek,
receive, and impart information and opinions of any kind
in any form."(1)
•
Combined gross enrolment ratio for primary,
secondary and tertiary schools, 2002/03: 105.7
•
GDP per capita (PPP US$) (HDI), 2003: 22,582
•
Total population (millions), 2003: 4
•
Total fertility rate (births per woman), 2000-05:
2.0
•
Under-five mortality rate (per 1,000 live births),
2003: 6
•
Net primary enrolment ratio (%), 2002/03: 100
•
HIV prevalence (% ages 15-49), 2003: <0.1
[<0.2]
•
Undernourished people (% of total population),
2000/03: N/A
•
Population with sustainable access to an improved
water source (%), 2002: N/A
Source:
UN Development Program, Human Development Reports
Data
The
Official
Information Act 1982 starts from the principle that
all official information should be available.(2)
The Court of Appeals said in 1988 that "the permeating
importance of the Act is such that it is entitled to be
ranked as a constitutional measure."(3)
Any citizen, resident, or company in New Zealand can demand
official information held by public bodies, state-owned
enterprises and bodies which carry out public functions.
Agencies have been required in some cases to take down notes
of discussions that contributed to government decision-making
if no documents are available. The body has no more than
20 days to respond.
There
are strict exemptions for releasing information that would
harm national security and international relations; information
provided in confidence by other governments or international
organizations; information that is needed for the maintenance
of the law and the protection of any person; information
that would harm the economy of New Zealand; and information
related to the entering into any trade agreements. In a
second set of exemptions, information can be withheld for
good reason unless there is an overriding public interest.
These exemptions include information that could intrude
into personal privacy, commercial secrets, privileged communication
and confidences, information that if disclosed could damage
public safety and health, economic interests, constitutional
conventions and the effective conduct of public affairs,
including "the free and frank expression of opinions"
by officials and employees.
The
Office
of the Ombudsmen reviews denials of access.(4)
The decisions of the Ombudsmen have limited many of the
categories of exemption, requiring agencies to justify their
decisions in terms of the possible consequences of disclosure.
The focus has shifted from withholding information to setting
how and when information, especially politically sensitive
information, should be released.(5) As
noted by a previous Secretary of the Cabinet, "virtually
all written work in the government these days is prepared
on the assumption that it will be made public in time […]
the focus in the current open style of government is on
managing the dissemination of official information."(6)
It is common for Cabinet documents and advice to be released.
The
Ombudsmen's decisions are binding, but there are limited
sanctions for non-compliance and some agencies have reportedly
ignored their rulings. The Ombudsmen received 922 complaints
in 2004-05 and actioned 1,183 complaints overall. A 2005
study into the Act found that of the sample applications
assessed, requesters who were denied information were informed
of their review rights in 71 per cent of responses.(7)
Significantly, private individuals were told of their
review rights in only 53 per cent of responses. The police
was the organization most complained about. The vast majority
of complaints related to refusals or delays which were deemed
as refusals. It took the Ombudsman's office an average of
73 days to complete their handling of complaints.(8)
In
2005, the Ombudsmen made a couple of notable precedent-setting
decisions. They dealt with a number of complaints regarding
whether advice or opinions from political advisers could
be accessed under the Act. Political advisers themselves
are not covered by the Act, but, if information generated
by advisers comes to be held by a Minister in his or her
official capacity, or by an agency subject to the Act, the
Ombudsman found that that information is subject to the
Act. The Ombudsman also considered the issue of whether
MPs should be charged fees for their requests. Generally,
where the requester is an MP, charges are waived because
it is recognized that there is a public interest in MPs
having access to information so they can exercise their
democratic responsibilities. However, the Ombudsman found
that in some cases it was still reasonable to fix a charge,
namely, where a Member made serial, virtually identical
requests, repeated on a monthly basis, for information coming
within a widely framed category. In 2004, he ruled that
the papers from the joint Australia New Zealand Food Regulation
Ministerial Council, a body that now sets food standards
for New Zealand, could be withheld but recommended changes
to the Act to limit the definition of an international organization.
The
Governor General can issue a "Cabinet veto" directing
an agency not to comply with the Ombudsmen's decision. The
veto, however, can be reviewed by the High Court. Between
1983 and 1987, 14 vetoes were exercised under a system that
allowed individual ministers to issue vetoes. Veto power
has not been used since 1987, when it was converted to a
collective decision.
An
Information Authority was created under the Act. The Authority
conducted audits, reviewed legislation and proposed changes.
The OIA put a fixed term on its existence and body was automatically
dissolved in 1988 after Parliament failed to amend the Act.
Some of its functions were transferred to the Legislative
Advisory Committee and the Ombudsmen.
The
Law Commission released a detailed review
of the Act in 1997.(9) It found that the
biggest problems were large and broadly defined requests,
delays in responding to requests, resistance to the Act
outside the core state sector, and the absence of a coordinated
approach to supervision, compliance, policy advice and education.
The review also found that "the assumption that policy
advice will eventually be released under the Act has in
our view improved the quality and transparency of [policy]
advice." The Commission recommended reducing response
time to 15 days and making agencies respond before the deadline,
requiring bodies that do not appeal Ombudsman's decisions
to the court to release information, giving the Ministry
of Justice more coordination responsibility (in lieu of
creating an Information Commission), providing more resources
to the Ombudsman and Ministry of Justice, and adequately
funding the Ombudsman's public activities to promote the
Act. The proposals have not been acted upon yet.(10)
In
2005, a review by academic Steven Price found that problems
with the Act remained.(11) The review
quoted former MP Michael Laws as saying, "It is ridiculously
easy to circumvent the act and to hide information from
requesters and Ombudsmen alike […] Of course, all
potentially embarrassing information is routinely refused
and time delays are simply de rigueur." Price reported
that the Ombudsman's 2002 OIA Practice Guideline contain
a damning list of 57 "misconceptions" about the
OIA that persist more than 20 years after its enactment,
including that information must be withheld if the person
concerned does not consent to its release; if the information
is misleading it can be withheld; any confidential information
can be withheld; and that ministers have a right to undisturbed
consideration of advice; drafts can be withheld. It is understood
that the Government has recently commissioned an academic
study of the Act looking at how well it is administered
and where shortcomings continue to exist. The report is
likely to be released at the end of 2006.
In
the past few years, there have been several significant
controversies relating to failures to release information.
In 2003, the Immigration Service told the Ombudsman that
it did not possess a memorandum that stated that the Immigration
Service was "lying in unison" regarding the case
of Ahmed Zaoui, an Algerian asylum seeker.(12)
The memo was subsequently leaked to a MP and the Ombudsman
re-opened his inquiry and issued a new report critical of
the agency and recommended changes to the information request
procedures.(13) The employee was later
sacked. The Ombudsmen reviewed the revised procedures and
noted in their 2003-2004 report that "the resulting
policy for handling OIA requests produced by the Department
is one of the best we have seen and would serve as a model
on how to approach statutory obligations under the official
information legislation."
The
Ombudsmen said the greatest problems that caused delays
is a failure to determine who is responsible for answering
the request and in cases where "politically sensitive"
information is requested and when third parties need to
be notified. The Ombudsmen said there was an "urgent
need" for better training of public employees and released
new Practice Guidelines to facilitate better understanding
of the Act. The report also reviewed an effort by the government
to create a de facto class exemption for advice to the Prime
Minister from the Department of the Prime Minister and Cabinet
and stated that decisions would still have to be made on
a case by case basis. In 2004, they recommended additional
training by either the State Services Commission or the
Ministry of Justice to improve all agencies' consistency
in responding to requests and are seeking more money to
provide additional training themselves since the two bodies
have not done it themselves.
The
Privacy
Act 1993 allows individuals to obtain and correct records
about themselves held by public and private bodies.(15)
It is overseen by the Privacy
Commissioner.(16) The Privacy Commissioner
and the Ombudsman have an agreement to work together when
there is a request that applies to both Acts. In 1998, the
Privacy
Commissioner also recommended more training for government
officials to reduce the misapplication of the Privacy Act
to justify nondisclosure.(17)
The
OIA repealed the Official Secrets Act 1951. Protections
for classified information are set by a Cabinet Directive
issued in 1982.(18) The levels of protection
are Top Secret, Secret, Confidential, Restricted, Sensitive
and In Confidence. The classification level is not determinative
on the decision to release the information under the OIA.
The
Public
Records Act was passed by Parliament in April 2005 and
replaced the Archives Act and the document and archive provisions
of the Local Government Act 1974.(19)
The Public Records Act now requires that at 25 years, records
will need to be classified as having either open access
or restricted access and will then be available for transfer
to the Archive. However, the OIA's requirements on release
of information prevail.
Cows
from New Zealand Allegedly Abused in China
Green Party MP Sue Kedgley acquired an Agriquality report
under the Official Information Act, in which a stockman
raised serious concerns over treatment of cows shipped from
New Zealand to China. In particular, the report notes that
pens were overcrowded and unventilated, cows were forced
to stand in knee-deep excrement, and were fed hay contaminated
with dead animals and wire. The Associate Minister of Agriculture
Damien O'Connor told Parliament that his staff would be
"investigating whether all the requirements of the
animal welfare export certificate were met."
SOURCE:
"Cows shipped to China forced to stand in excrement,"
New Zealand Press Association, Mar. 9, 2005.
Confidential
Cabinet Documents Expose New Zealand's Flawed, Ineffective
Tsunami Warning System
Reviews obtained by media under New Zealand's Official Information
Act express findings that the nation's new seismic warning
system is incomplete, facing a more than $18 million budget
shortfall, and lack a nationwide program to educate people
about what they should do in the case of a tsunami threat.
Officials called on the nation's Earthquake Commission and
others to report by September on ways to improve the warning
system.
SOURCE:
"Report: New Zealand works to upgrade badly flawed
tsunami warning system," AP Asia, Feb. 28, 2005.
31
DECEMBER 2003
NEW ZEALAND: Ombudsman Blast Slow Public Bodies The
New Zealand Herald reports on
the Ombudsman John Belgrave's observations on the Government's
handling of the Freedom of Information Act.
According
to Belgrave's report, government agencies are dragging their
feet over Official Information Act requests and failing
to fulfil obligations to respond as soon as possible. The
Ombudsman said that under the act, agencies were required
to respond to information requests as "soon as reasonably
practicable" and no later than 20 working days after
the request was made.
Yet ombudsmen continued to receive complaints that agencies
believed they had no obligation to respond any earlier than
20 working days, irrespective of the nature of the request.
"Regrettably, investigation of such complaints often
reveal a misconception among staff of some agencies about
the true nature of their obligations."
When
the 20-day time limit was inserted in the 1987 act, Parliament
had made it clear the 20 working days should not be treated
as the normal time period for making and communicating a
decision. Instead it should be the maximum period, except
where specific circumstances required an extension.
12
NOVEMBER 2003
AUSTRALIA/NEW ZEALAND: Alarm over Food Labeling Secrecy
According to a Press
Release by New Zealand's Green Party, decisions about
what goes into Australians' and New Zealanders' food and
even what goes onto the label will continue to be made in
secret, as a result of an Ombudsman's ruling.
The
Ombudsman has upheld a refusal by the Minister of Food Safety
to release information under the Official Information Act
regarding any decisions made by the Australia New Zealand
Food Regulation Ministerial Council, on the grounds that
the council is an international organization.
The
ministerial council makes decisions on what is in our food:
what ingredients are legal and illegal; the level of pesticide
residues allowable; how food is produced and how food is
labeled.
It
is outrageous that food policy decisions are exempt from
the Official Information Act, and that the government is
colluding with the Australian Federal and State governments
in keeping this information secret from New Zealanders and
Australians," said Sue Kedgley, the Green Food Safety
spokesperson.
6
NOVEMBER 2003 NEW ZEALAND:
Intelligence Agencies to Become More Transparent Scoop.com
(New Zealand) have posted on their
website a New Zealand Government press release indicating
that the government intends to declassify Security Intelligence
Service (NZSIS) material for release where possible.
The
Prime Minister and Minister in Charge of the New Zealand
Security Intelligence Service, Helen Clark, said today that
the NZSIS has developed an archives policy for its records.
“Successive
governments have encouraged greater openness by the NZSIS,
to the extent compatible with security and privacy”,
Helen Clark said.
“In
that context, and as the fiftieth anniversary of the foundation
of the Service approaches in 2006, I agreed with the Director
of Security that it was time to develop a policy framework
for making decisions on the retention, destruction, and/or
declassification of Service archives. That policy has now
been completed and will be put into effect.”
Helen
Clark acknowledged the constructive role which other relevant
officials had played in developing the policy. The Chief
Archivist, the Chief Ombudsman and the Privacy Commissioner,
and appropriate members of their respective offices, and
the Inspector-General of Intelligence and Security, had
all been consulted and had made helpful comments. Their
advice had been taken into account in finalizing the document.
29
AUGUST 2003
NEW ZEALAND: Official Defies Prime Minister's Request Stuff
Magazine (New Zealand) reports that Mark Prebble, head
of the Department of Prime Minister and Cabinet, said yesterday
he had decided to treat the Prime Minister's request for
Corngate documents as a request under the Official Information
Act, leading to the withholding of all advice from the department.
Policy
adviser Ruth Wilkie had dissented, saying in a memo to Dr
Prebble: "I do not agree with your view that this should
be regarded as a normal release (and hence that these notes
would usually be withheld)."
In
his defense, Dr Prebble said he had applied the convention
that preserves the confidentiality of advice to ministers.
"The convention is what it is - the done thing. If
I don't keep doing the done thing, it's not a convention
any more."
He
had known Miss Clark wanted all the information "out
there".
"I
knew she had not said, 'And I want Official Information
Act rules to apply'. I believed I had an obligation to take
account of the constitutional dimensions so I still did."
Yet
in doing so he had not applied another important convention,
that officials should not give their ministers "nasty
surprises".
He
had looked at the four relevant memos individually and made
a "high speed judgment" whether the public interest
would be served by releasing them. "I
understood that there was nothing in those documents that
wasn't reflected in other documents."
So
though he had knowingly withheld documents, he had not knowingly
withheld information. He now accepted he was wrong in thinking
all the information was to come out.
5.
Alastair Morrison, "The Games People Play: Journalism
and the Official Information Act," in The Official
Information Act: Papers presented at a seminar held by the
Legal Research Foundation, 1997.
6.
Marie Shroff, "Behind the Official Information
Act: Politics, Power and Procedure" in The Official
Information Act: 1997.
1)
Voice and Accountability: 1.47
2) Political Instability and Violence: 1.51
3) Government Effectiveness: 2.05
4) Regulatory Burden: 1.78
5) Rule of Law: 1.93
6) Control of Corruption: 2.38
