2004 freedominfo.org Global Survey Results - New Zealand
Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated 12 May 2004)

Section 14 of the Bill of Rights Act states, "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)

The Official Information Act 1982 starts from the principle that all official information should be available. (2) 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 decisions of the Ombudsmen have limited many of these categories, 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. (3) As noted by the 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." (4) It is common for Cabinet documents and advice to be released.

The Office of the Ombudsmen reviews denials of access. (5) The Ombudsmen's decisions are binding, but there are limited sanctions for noncompliance and some agencies have reportedly ignored their rulings. The ombudsman received 863 complaints in 2002, down from an average of around 1,200.

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.

The Ombudsmen have regularly commented on the lack of knowledge about the OIA leading to delays. In their 2002 report, they note:

The significant changes which have taken place since the mid 1980s in the way in which the public sector operates still highlights a lack of an adequate understanding of the requirements of the legislation. Each year for the past several years, we have signaled our concern to Parliament about delays both in the processing of some requests for official information and in responding to our investigations, and about the need for the training of staff within the public sector in the requirements of the official information legislation. We have to report that we have seen no overall improvement in either of these areas during the current year resulting in an increase in frustration by some requesters and in the time taken to complete our reviews of refusals to make information available…As a consequence, the good progress that is being made with the dissemination of a great amount of information into the public domain, both voluntarily and in response to official information requests, is being offset by an inability or unwillingness by some to meet the statutory time lines set by the provisions of the Official Information Act.

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.

An Information Authority was created under the Act, but the law put a fixed term on its existence. The body was automatically dissolved in 1988 after Parliament failed to amend the Act. The Information Authority conducted audits, reviewed legislation and proposed changes. Some of its functions were transferred to the Legislative Advisory Committee and the Ombudsmen.

In the past year, there have been several significant controversies relating to failures to release information. 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. (6) The memo was subsequently publicly leaked and the Ombudsman re-opened his inquiry and issued a new report critical of the agency. (7) The employee was later sacked. In the "Corngate" controversy, Prime Minister Helen Clark has been accused of withholding information after it was revealed that the head of the Department of Prime Minister and Cabinet had not released over 100 documents relating to genetically modified foods prior to the 2002 election, some of which undermined the PM's categorical claims that crops had not been contaminated by GM. The Government released 1,800 pages just prior to the election to rebut claims of GM contamination in a new book and the controversy resulted in the Green Party losing significant power in Parliament.

The Law Commission released a detailed review of the Act in 1997. (8) 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 up yet. (9)

The Local Government Official Information and Meetings Act 1987 provides for access to information held by local authorities. (10) It follows the same framework for access as the OIA. It is also overseen by the Ombudsmen

The Privacy Act 1993 allows individuals to obtain and correct records about themselves held by public and private bodies. (11) It is overseen by the Privacy Commissioner. (12) 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. (13)

The OIA repealed the Official Secrets Act 1951. Protections for classified information were set by a Cabinet Directive issued in 1982. (14) 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 Archives Act 1957 sets a 25 year rule on the transfer of documents to the Archive. However, the OIA's requirements on release of information prevail. The NZ Security Intelligence Service has thus far been exempted from providing its archives but is anticipated to develop a policy this year. (15)

Notes

1. http://www.uni-wuerzburg.de/law/nz01000_.html

2. Official Information Act 1982.

3. 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.

4. Marie Shroff, "Behind the Official Information Act: Politics, Power and Procedure" in The Official Information Act: 1997.

5. Office of Ombudsman Home page: http://www.ombudsmen.govt.nz/

6. Inquiry misled over 'lie in unison' memo, NZ Herald, 30 July 2003.

7. Ombudsman's Report upon the Actions of the Department of Labour , http://www.ombudsmen.govt.nz/Own%20Motion%20Report.htm

8. Law Commission, Review of the Official Information Act 1982. http://www.privacy.org.nz/people/oiasub.html

9. See Paul Bellamy, NZ Parliamentary Library, Background Paper No. 27 on Access to Official Information, May 2003.

10. Local Government Official Information and Meetings Act 1987.

11. Privacy Act 1993. Text and amendments available at http://www.knowledge-basket.co.nz/privacy/legislation/legislation.html

12. Homepage: http://www.privacy.org.nz/

13. Private Word, Issue No.20, November 1998, http://www.privacy.org.nz/privword/nov97pw.html

14. Cabinet Directive on Security Classification. CO (82) 14, 17 December 1982. http://www.security.govt.nz/sigd/sigd4a.html. See Security in Government Departments Manual 1994. http://www.security.govt.nz/sigd/index.html

15. They're keeping our secrets, The Dominion Post, 23 May 2003.