Purpose of the Act
8.22The Official Information Act 1982 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.
8.23The 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. This enables more effective public participation in the making and administration of laws and policies, and promotes the accountability of Ministers and officials.
8.24Section 5 of the Act sets out the important 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.
What is official information?
8.25“Official information” is defined in section 2 of the Act as any information held by a public service agency or organisation (as defined, “organisation” includes most agencies in the wider public sector) or a Minister of the Crown (including a Parliamentary Under-Secretary) in their official capacity.
8.26Information held by a Minister in their 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 unless and until it is used in their ministerial capacity.
8.27Ministers should always be clear about the capacity in which they are creating or using information. For example, a Minister corresponding in their capacity as a member of Parliament about an electorate matter should sign as a member of Parliament.
8.28The Attorney-General when performing law officer functions is not subject to the Official Information Act 1982. Information held by the Attorney-General in this capacity is not, therefore, official information in terms of the Act.
8.29Information held by an unincorporated body, such as a ministerial or agency committee, is treated as official information held by the Minister or agency concerned. Where independent contractors or consultants carry out work on behalf of a Minister or agency, such information is also deemed to be official information held by the relevant Minister or agency.
8.30The 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 an agency, 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.
8.31Access by individuals to information about themselves is governed by the Privacy Act 2020 (see paragraphs 8.72 – 8.89). 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 1982. Part 4 of the Official Information Act 1982 applies to requests by a corporate entity for information about that entity. In addition, the Official Information Act 1982 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. There is also a specific “right” of access under section 22 of the Official Information Act 1982 to policies, principles, rules, or guidelines that are used to make decisions about people.
Complying with the Official Information Act 1982
8.32Requests under the Official Information Act 1982 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.
8.33Public service chief executives, and the boards and chief executives of agencies in the wider public 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.
8.34Ministers 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)).
8.35If 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.
8.36Under section 14 of the Act, the Minister or organisation that receives a request may be required to transfer it to another Minister, agency, organisation, or local authority. Requests must be transferred if the information is not held by the agency receiving the request but is believed to be held by another agency, or if the information is believed to be more closely connected with the functions of another agency. 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 1982, but may be investigated under the Ombudsmen Act 1975, where the transfer was made by an agency subject to the Ombudsmen Act 1975.
8.37The 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.
8.38The 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). If a request is refused, section 19 requires the agency to give the reasons for refusal and advise the requester of their right to complain to the Ombudsman.
Advice and training
8.39Ministers and agencies may approach the Ombudsman for guidance about any official information request. This guidance can be offered only informally, because 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 staff 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.
8.40The Ombudsman can provide training to agencies about the Official Information Act 1982. Guidance can also be found on the Ombudsman website.
8.41The Ombudsman should be consulted on policy and legislative proposals with implications for access to official information. This can include when a proposal is made to exclude particular information from the Official Information Act 1982. See the Ombudsman's Guidance on when to engage the Ombudsman in law reform proposals.
Requests for Cabinet material under the Official Information Act 1982
8.42There is no blanket exemption for any class of papers under the Official Information Act 1982. 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 8.46 for guidance on requests for documents with security classifications.
8.43There is no requirement to consult the Cabinet Office on the release of Cabinet papers or minutes, except in the case of Cabinet material of a previous opposition administration (see paragraphs 8.150 - 8.151). However, the Cabinet Office should be consulted on the release of any other Cabinet material, including summary tops and agendas. The Cabinet Office is also available for general guidance, if agencies have queries about the process for releasing Cabinet material. Agencies that 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 8.36).
8.44It is good practice to indicate on Cabinet material released under the Official Information Act 1982 that it has been approved for release. However, watermarks across text are discouraged because these can interfere with the accessibility of a document.
8.45Ministers and agencies are responsible for keeping a record of the Cabinet documents that they have made available publicly, whether proactively or in response to a request under the Official Information Act 1982.
Security classifications and endorsements and the Official Information Act 1982
8.46A 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 1982, 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 1982. 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. More detailed guidance on security classifications is included in the New Zealand Government’s Protective Security Requirements.
8.47See paragraphs 4.69 - 4.73 for guidance on the release of legal advice, which is often endorsed “legally privileged”.
Consultation on Official Information Act 1982 requests
8.48The Act envisages that Ministers or organisations dealing with requests may need to consult other Ministers, organisations, or third parties before making a final decision on responding to requests for official information. Consultation may be undertaken where that is “necessary to make a decision on the request”. See paragraph 8.37 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 1982 requests should be recorded in accordance with normal, prudent business practice (see paragraph 8.108).
Consultation by Ministers
8.49When considering a request, Ministers 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.
8.50Special consultation arrangements apply to the release of Cabinet records that date from a previous opposition administration (see paragraph 8.151).
Consultation between agencies
8.51When considering a request, an agency should consult another agency when the information sought:
- was produced with substantial or critical input from that other agency; or
- contains material that relates to the activities of the other agency or that may result in publicity for that agency.
8.52Agencies 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 8.151.
Agencies' consultation with Ministers
8.53An agency may consult its Minister about any request for official information it receives. An agency should consult its Minister if the request relates to Cabinet material, because such material relates to their activities as a Minister. Ministerial consultation on an Official Information Act 1982 request is no different from any other consultation process. It should be clear that the agency is consulting rather than providing the request for the Minister's information, and sufficient time should be allowed for the Minister's office to provide any input about the proposed decision. The decision on how to respond to the request must nonetheless be made by the agency, in accordance with the Official Information Act 1982. It is good practice for Ministers and chief executives to agree on how consultation arrangements on Official Information Act 1982 requests will be handled generally. The Ombudsman has published a “model protocol” that can be used to guide these arrangements, and encourages agencies to proactively publish such arrangements.
8.54Agencies 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 must be transferred to the Minister under section 14 of the Official Information Act 1982 (see paragraph 8.36. 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.
8.55On being consulted, the Minister may take the view that information that the agency 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 agency, 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 agency as to whether any of the withholding provisions apply.
8.56An agency 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 3.26). A notification for this purpose is not the same as consultation and should be done at the same time as, or just before, sending the decision to the requester, so as not to delay the agency's decision on a request.
8.57Advice on ministerial consultation or notification can be sought from the Public Service Commission or the Ombudsman. Further information is also available on the Public Service Commission website.
Coordinating Official Information Act 1982 requests
8.58Sometimes requests are directed at or affect several Ministers or agencies. In these cases, recipients of a request should consider the requirement in section 14 to transfer a request, or part of a request, together with any relevant information, where the information is more closely connected with the functions of another agency or Minister or organisation.
8.59It will not always be obvious that other agencies and Ministers have had the same request addressed to them; requests that are potentially “common” should be checked with other agencies or Ministers.
8.60Agencies may participate in cross-government forums to develop best practice in responding to Official Information Act 1982 requests. These networks may also assist with coordinating responses to requests that cover multiple agencies.
Effect of change of Minister or administration
8.61Sometimes a request for official information that was received by a previous Minister or administration will not have been responded to before the appointment of a new Minister or administration. In these cases, the request for information continues and the new Minister must respond to the request in accordance with the provisions of the Official Information Act 1982.
8.62The Minister should assess whether they, or any others who are subject to the Act, hold the information requested. If the Minister does not hold the information but believes it to be held by another agency or Minister, then the Minister should transfer the request under section 14 of the Act. If the information requested is not held by any Minister or other agency then the request can be refused under section 18(g) of the Act.
8.63In the event of a complaint, the Ombudsman may inquire into the steps taken by the incumbent Minister before reaching a view on the complaint.
Charging for official information
8.64The Ministry of Justice has issued guidelines on what the government regards as reasonable charges for the purposes of the Official Information Act 1982. 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 Ombudsman has also published guidance on charging on its website.
Review of decisions to withhold official information
Conduct of the review
8.65A person who has requested official information can ask an Ombudsman to investigate a decision by a Minister or an agency 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 1982.
8.66Where an Ombudsman undertakes a review, the Ministers, agencies, 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. An agency or Minister will be expected to provide a detailed justification in each case, and should use the review as an opportunity to set out their concerns about meeting the request.
8.67The Ombudsmen have extensive powers to require information for the purposes of the review. Ministers and agencies must respond as soon as reasonably practicable and in no case later than 20 working days of any such request. This time limit may be extended under section 29A for specified reasons 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.
8.68An Ombudsman, having investigated a complaint made under section 28 of the Official Information Act 1982, will issue an opinion and may make such recommendations as they see 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 agency concerned the action to be taken.
8.69Before forming a final opinion and making a recommendation, it is the Ombudsman's practice to first provide the Minister or agency 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 their opinion differs from that of the holder of the information.
8.70The 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 agency or Minister concerned give further consideration to making the information available.
8.71The 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 1982). 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.