New Zealand Law Commission completes FOI review

The New Zealand Law Commission today released the final report, The Public’s Right to Know: Review of the Official Information Legislation, concluding its 2009 reference. The report evaluates the Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987 in the light of 30 years experience and changing times.

(Media Release).

The report reinforces the main principles of the Act but makes 137 recommendations including measures to encourage more proactive publication, improving operational processes, bolstering the leadership role and functions of the ombudsmen and ahem, attention Attorney General Roxon who may be still intending to fix an "anomaly" here, that the parliamentary departments be covered by the OIA.

I'll leave commentary to the kiwis-the government has welcomed the report but that's all so far. (Update: See No Right Turn-"An appalling conclusion"- among other things, lamenting the absence from the debate of OIA users. Know the feeling.)

Some of the 137 recommendations that attract the eye this side of the ditch include:

Spelling out a good government exemption

8. Sections 9(2)(f) and 9(2)(g) of the OIA (the “good government” grounds)
should be replaced by a provision stating that:
The withholding of the information is necessary to avoid prejudice to the effective conduct of public affairs by protecting:
(i) collective and individual ministerial responsibility;
(ii) the political neutrality of officials; negotiations between political parties or Members of Parliament for the purpose of forming or supporting the government;
(iii) the free and frank expression of opinions and provision of advice or information by, 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;
(iv) the ability of Ministers properly to consider advice tendered, whether that advice was requested or not;
(v) Ministers, members of organisations, officers and employees of any department or organisation from improper pressure or harassment;
(vi) the confidentiality of communications by or with or about the Sovereign or her representative.

No statutory definition or limitation on public interest

33. The term “public interest” should not be statutorily defined or limited by a list of factors to be taken into account. Instead, the Ombudsmen’s Guidelines should provide clear examples of previous cases in which the public interest in disclosure has, and has not, been sufficient to justify overriding a withholding ground.

Oral and any form of electronic request

48. A new provision in the OIA and LGOIMA should state that:
requests may be made in any form (in hard copy, electronically, or orally);
(a) requests do not need to make express reference to official information legislation;
(b) where it is reasonably necessary to clarify an oral request, agencies may ask for it to be put in writing;
(c) if the requester declines or is unable to put an oral request in writing, the agency should record its understanding of the request and provide a copy of it to the requester.

Urgent requests

56. A new provision in the OIA and LGOIMA should provide the following: a requester may make an urgent request provided that reasons for urgency are given;
(a) an agency must treat such a request as urgent if it would be reasonably practicable in the circumstances to do so; and
(b) a response to a request treated as urgent should be notified promptly and, where the decision is in favour of release, the information should be provided to the requester as soon as reasonably practicable in the circumstances.

All agencies covered by the legislation should be listed and advertise the fact

116. The schedules to the OIA and LGOIMA should be comprehensive and identify all agencies covered by the OIA and LGOIMA respectively.

118.  There should be a statutory responsibility on all agencies subject to the OIA and LGOIMA to state that fact on their website.

Parliamentary offices should be covered

124. The Office of the Clerk of the House of Representatives and the Parliamentary Service should be subject to the OIA by inclusion in Schedule 1. The definition of “official information” in section 2 of the OIA should state that, in relation to these agencies, “official information” includes only:
(a) statistical information about the agency’s activities;
(b) information about the agency’s expenditure of public money; information about the agency’s assets, resources, support systems, and other administrative matters.

125. The Speaker in his or her role as responsible Minister in relation to the Office of the Clerk and Parliamentary Service should be subject to the OIA by inclusion in Schedule 1. The definition of “official information” in section 2 of the OIA should state that only information held by the Speaker in that capacity is included.