Country

New Zealand

New Zealand

Name of law : Official Information Act
First adopted : 1982

Section Max ScoreScore
Right of Access 6 4
Scope 30 16
Requesting procedures 30 22
Exceptions 30 18
Appeals 30 23
Sanctions 8 6
Promotional measures 16 5
TOTAL 150 94

Introduction:
Comments: New Zealand's access regime is one that, according to our information, functions far better in practice than its legal framework would suggest. Nonetheless, it is important to note that it scored highest among developed, English-speaking countries, and was one of very few of the older laws (adopted in 1982) to score within the top quarter. The law's major problems include its limited scope (it does not apply to the legislature, the courts, or some bodies within the executive) and the fact that it allows information to be classified by other laws.
Right of Access

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
1 The legal framework (including jurisprudence) recognises a fundamental right of access to information.Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information.2 NO New Zealand has no constitution. A right to information is endorsed, in a weak way, in their quasi-constitutional bill of rights, but because there is no specific endorsement of a right to access government information this is not worth a point. Link to the Constitutional bill of rights: http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/domestic-human-rights-protection/about-the-new-zealand-bill-of-rights-act
2 The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions.No=0, Partially=1, Yes=22 YES 5. 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.
3 3.1 The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law
3.2 The legal framework emphasises the benefits of the right to information?
3.1(Y/N - max 1 point)
3.2 (Y/N - max 1 point)
2 YES 4. Purposes. The purposes of this Act are, consistently with the principle of the Executive Government’ s responsibility to Parliament,— (a) to increase progressively the availability of of ficial in- formation to the people of New Zealand in order— (i) to enable their more ef fective participation in the making and administration of laws and policies; and (ii) to promote the accountability of Ministers of the Crown and of ficials,— and thereby to enhance respect for the law and to pro- mote the good government of New Zealand: (b) to provide for proper access by each person to of ficial information relating to that person: (c) to protect of ficial information to the extent consistent with the public interest and the preservation of personal privacy .




Scope

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
4 Everyone (including non-citizens and legal entities) has the right to file requests for information.Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. 2 Partially 12 Requests (1) Any person, being— (a) a New Zealand citizen; or (b) a permanent resident of New Zealand; or (c) a person who is in New Zealand; or (d) a body corporate which is incorporated in New Zealand; or (e) a body corporate which is incorporated outside New Zealand but which has a place of business in New Zealand,— may request a department or Minister of the Crown or organisation to make available to him or it any specified official information. (1A) Notwithstanding subsection (1), a request made, on or after the date of commencement of this subsection, by or on behalf of a natural person for access to any personal information which is about that person shall be deemed to be a request made pursuant to subclause (1)(b) of principle 6 of the Privacy Act 1993, and shall be dealt with accordingly, and nothing in this Part or in Part 5 shall apply in relation to any such request. (2) The official information requested shall be specified with due particularity in the request. (3) If the person making the request asks that his request be treated as urgent, he shall give his reasons for seeking the information urgently. Section 12(1): replaced, on 1 April 1987, by section 6 of the Official Information Amendment Act 1987 (1987 No 8). Section 12(1A): inserted, on 1 July 1993, by section 3 of the Official Information Amendment Act 1993 (1993 No 36). Art 12 - corporations are ok, non-citizens or residents outside of New Zealand are not.
5 The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it.Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions.4 Partially 2. "Interpretation (1) In this Act, unless the context otherwise requires,— department means a government department named in Part 1 of Schedule 1 of the Ombudsmen Act 1975 (other than the Parliamentary Counsel Office) document means a document in any form; and includes—(...) (b) any information recorded or stored by means of any tape-recorder, computer, or other device; and any material subsequently derived from information so recorded or stored:(...)" 2(1)(b) definition is expansive without any exceptions. "Official Information" includes all info held, but with some limited exceptions.
6 Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents).Score 1 point for only documents, 1 point for information2 YES 2. "Interpretation (1) In this Act, unless the context otherwise requires,— department means a government department named in Part 1 of Schedule 1 of the Ombudsmen Act 1975 (other than the Parliamentary Counsel Office) document means a document in any form; and includes—(...) (b) any information recorded or stored by means of any tape-recorder, computer, or other device; and any material subsequently derived from information so recorded or stored:(...)" 12. "Requests (1) Any person, being— (a) a New Zealand citizen; or (b) a permanent resident of New Zealand; or (c) a person who is in New Zealand; or (d) a body corporate which is incorporated in New Zealand; or (e) a body corporate which is incorporated outside New Zealand but which has a place of business in New Zealand,— may request a department or Minister of the Crown or organisation to make available to him or it any specified official information.(...)" 16 Documents (1) Where the information requested by any person is comprised in a document, that information may be made available in 1 or more of the following ways: (a) by giving the person a reasonable opportunity to inspect the document; or (b) by providing the person with a copy of the document; or (c) in the case of a document that is an article or thing from which sounds or visual images are capable of being reproduced, by making arrangements for the person to hear or view those sounds or visual images; or (d) in the case of a document by which words are recorded in a manner in which they are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, by providing the person with a written transcript of the words recorded or contained in the document; or (e) by giving an excerpt or summary of the contents; or (f) by furnishing oral information about its contents. (2) Subject to section 17, the department or Minister of the Crown or organisation shall make the information available in the way preferred by the person requesting it unless to do so would— (a) impair efficient administration; or (b) be contrary to any legal duty of the department or Minister of the Crown or organisation in respect of the document; or (c) prejudice the interests protected by section 6 or section 7 or section 9 and (in the case of the interests protected by section 9) there is no countervailing public interest. (3) Where the information is not provided in the way preferred by the person requesting it, the department or Minister of the Crown or organisation shall, subject to section 10, give to that person— (a) the reason for not providing the information in that way; and (b) if that person so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 6 or section 7 or section 9 and (in the case of the interests protected by section 9) there is no countervailing public interest. Section 16(2)(c): amended, on 1 April 1987, by section 4(2) of the Official Information Amendment Act 1987 (1987 No 8). Section 16(3)(b): amended, on 1 April 1987, by section 4(2) of the Official Information Amendment Act 1987 (1987 No 8). 17 Deletion of information from documents (1) Where the information requested is comprised in a document and there is good reason for withholding some of the information contained in that document, the other information in that document may be made available by making a copy of that document available with such deletions or alterations as are necessary. (2) Where a copy of a document is made available under subsection (1), the department or Minister of the Crown or organisation shall, subject to section 10, give to the applicant— (a) the reason for withholding the information; and (b) if the applicant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 6 or section 7 or section 9 and (in the case of the interests protected by section 9) there is no countervailing public interest. Section 17(2)(b): amended, on 1 April 1987, by section 4(2) of the Official Information Amendment Act 1987 (1987 No 8). 2(1)(b) definintion of document includes derivative information. See s 12(1), 16 and 17 as well.
7 The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and adminsitration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above.Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc).8 Partially Applies to central government - use of "an organization" in the definition implies a very wide ambit. Local authorities are covered under LGOIMA. Does not apply to archives - but these are accessed through the Public Records Act. Does not apply to public trust or the Maori Trustee. Does not apply to Royal Commissions or Inquiries. Does not include some communications made by the Ombudsman. Does not apply to communications between the PRivacy Commissioner and the government.
8 The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government4 NO The act does not appear to apply to the legislature.
9 The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government4 Partially The OIA does not apply to the Controller and Auditor General, nor to the Ombudsmen themselves, but does apply to another Officer of Parliament, the Parliamentary Commissioner for the Environment. For more on scope issues see pages 2-3 of the Ombudsmen 2010 submission to the Law Commission review of the OIA and LGOIMA at:http://www.ombudsmen.parliament.nz/imagelibrary/100406.pdf
10 The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). Score 1 point if some, 2 points if all2 YES
11 The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). Score 1 point if some bodies, 2 points if all2 Partially The OIA does not apply to the Controller and Auditor General, nor to the Ombudsmen themselves, but does apply to another Officer of Parliament, the Parliamentary Commissioner for the Environment. For more on scope issues see pages 2-3 of the Ombudsmen 2010 submission to the Law Commission review of the OIA and LGOIMA at:http://www.ombudsmen.parliament.nz/imagelibrary/100406.pdf
12 The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. 1 point for public functions, 1 point for public funding 2 Partially 2. "Interpretation (...) (5)Any information held by an independent contractor engaged by any department or Minister of the Crown or organisation in his capacity as such contractor shall, for the purposes of this Act, be deemed to be held by the department or Minister of the Crown or organisation.(...)" There was a limited provision for some companies where the government owns significant shares, but this doesn't seem to qualify under this heading. However, the OIA does apply to those carrying out contracts for government departments or other organisations within the scope of the Act, in their capacity as such a contractor - see section 2(5).

Requesting Procedures

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
13 Requesters are not required to provide reasons for their requests.Y/N answer 0 or 2 points2 YES OQR Vol 12, iss 2, June 2007, page 1: "In making and considering official information requests, requesters and agencies alike should bear in mind that: _ there is no requirement in the OIA and LGOIMA for a requester to specify the reasons for their request and failure to provide reasons for a request does not provide grounds to refuse that request" http://ombudsmen.parliament.nz/imagelibrary/100240.pdf
14 Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery).Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc.2 YES 12. "Requests (...) (2)The official information requested shall be specified with due particularity in the request.(...)" 23 Right of access by person to reasons for decisions affecting that person (1) Subject to section 6(a) to (d), section 7, section 9(2)(b), and section 10 and to subsections (2), (4), and (5), where a department or Minister of the Crown or organisation makes, on or after 1 July 1983, a decision or recommendation in respect of any person, being a decision or recommendation in respect of that person in his or its personal capacity, that person has the right to and shall, on request made within a reasonable time of the making of the decision or recommendation, be given a written statement of— (a) the findings on material issues of fact; and (b) subject to subsection (2A), a reference to the information on which the findings were based; and (c) the reasons for the decision or recommendation. (2) The right conferred by subsection (1) may be exercised only by a person who is— (a) a New Zealand citizen; or (b) a permanent resident of New Zealand; or (c) a person who is in New Zealand; or (d) a body corporate which is incorporated in New Zealand; or (e) a body corporate which is incorporated outside New Zealand but which has a place of business in New Zealand. (2A) A reference to the information on which any findings were based need not be given under subsection (1)(b) if— (a) the disclosure of the information or of information identifying the person who supplied it, being evaluative material, would breach an express or implied promise— (i) which was made to the person who supplied the information; and (ii) which was to the effect that the information or the identity of the person who supplied it or both would be held in confidence; or (b) after consultation undertaken (where practicable) by or on behalf of the department or Minister of the Crown or organisation with a natural person's medical practitioner, the department or Minister of the Crown or organisation is satisfied that— (i) the information relates to that person; and (ii) the disclosure of the information (being information that relates to the physical or mental health of the person making the request under this section) would be likely to prejudice the physical or mental health of that person; or (c) in the case of a natural person under the age of 16, the disclosure of that information would be contrary to that person's interests; or (d) the disclosure of that information (being information in respect of a person who has been convicted of an offence or is or has been detained in custody) would be likely to prejudice the safe custody or the rehabilitation of that person. (2B) For the purposes of subsection (2A), the term evaluative material means evaluative or opinion material compiled solely— (a) for the purpose of determining the suitability, eligibility, or qualifications of the person to whom the material relates— (i) for employment or for appointment to office; or (ii) for promotion in employment or office or for continuation in employment or office; or (iii) for removal from employment or office; or (iv) for the awarding of contracts, awards, scholarships, honours, or other benefits; or (b) for the purpose of determining whether any contract, award, scholarship, honour, or benefit should be continued, modified, or cancelled; or (c) for the purpose of deciding whether to insure any person or property or to continue or renew the insurance of any person or property. (3) Sections 12(3), 13 to 15A, and 19 shall apply, with all necessary modifications, to a request made under subsection (1). (4) Nothing in this section entitles any person to obtain a written statement of advice given to the Sovereign or her representative. (5) Nothing in this section applies in respect of any decision or recommendation by Public Trust or the Maori Trustee— (a) in their capacity as trustee within the meaning of the Trustee Act 1956; or (b) in any other fiduciary capacity. (6) In subsection (2A)(b), medical practitioner means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine. Section 23(1): amended, on 1 April 1987, by section 4(2) of the Official Information Amendment Act 1987 (1987 No 8). Section 23(1)(b): amended, on 1 July 1993, by section 4(1) of the Official Information Amendment Act 1993 (1993 No 36). Section 23(2A): inserted, on 1 July 1993, by section 4(2) of the Official Information Amendment Act 1993 (1993 No 36). Section 23(2B): inserted, on 1 July 1993, by section 4(2) of the Official Information Amendment Act 1993 (1993 No 36). Section 23(3): amended, on 1 April 1987, by section 9(2) of the Official Information Amendment Act 1987 (1987 No 8). Section 23(5): replaced, on 1 March 2002, by section 170(1) of the Public Trust Act 2001 (2001 No 100). Section 23(6): inserted, on 18 September 2004, by section 175(1) of the Health Practitioners Competence Assurance Act 2003 (2003 No 48). 24 Right of access to personal information (1) Subject to this Part, to sections 10 and 52, and to subsections (2) and (5), every person has a right to and shall, on request, be given access to any personal information which— (a) is about that person; and (b) is held in such a way that it can readily be retrieved. (2) The right conferred by subsection (1) may be exercised only by a person who is— (a) a body corporate which is incorporated in New Zealand; or (b) a body corporate which is incorporated outside New Zealand but which has a place of business in New Zealand. (3) Sections 12(3), 13 to 17, and 19 shall apply, with all necessary modifications, to a request made under subsection (1). (3A) Where any person is given access to personal information under this section, that person shall be advised of that person's right, under section 26, to request the correction of that information. (4) Nothing in this section requires, or imposes any responsibility on, any department or Minister of the Crown or organisation to compile files or data banks of personal information. (5) Nothing in this section gives any person the right to be given access to any personal information about the person that is held by Public Trust or the Maori Trustee— (a) in their capacity as trustee within the meaning of the Trustee Act 1956; or (b) in any other fiduciary capacity. Section 24(1): amended, on 1 July 1993, by section 5(1) of the Official Information Amendment Act 1993 (1993 No 36). Section 24(2): replaced, on 1 July 1993, by section 5(2) of the Official Information Amendment Act 1993 (1993 No 36). Section 24(3A): inserted, on 1 April 1987, by section 13 of the Official Information Amendment Act 1987 (1987 No 8). Section 24(5): replaced, on 1 March 2002, by section 170(1) of the Public Trust Act 2001 (2001 No 100). 24A Restriction where person sentenced to imprisonment [Repealed] Section 24A: repealed (without coming into force), on 1 July 1993, by section 6 of the Official Information Amendment Act 1993 (1993 No 36). 25 Precautions Where a request is made under section 24(1), the department or Minister of the Crown or organisation— (a) shall not give access to that information unless it or he is satisfied concerning the identity of the person making the request; and (b) shall ensure, by the adoption of appropriate procedures, that any information intended for a person is received— (i) only by that person; or (ii) where the request is made by an agent of the person, only by that person or his agent; and (c) shall ensure that, where the request is made by an agent of the person, the agent has the written authority of that person to obtain the information or is otherwise properly authorised by that person to obtain the information. Section 12(2) of the OIA states that the request only has to specify the information sought with "due particularity". Identifying information only required when seeking personal information about yourself (legal persons) under s. 24 OIA- see s. 25 OIA. It would probably be sought in practice if using right under s. 23 OIA - seeking reasons for a decision affecting you in a personal capacity.
15 There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law.Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. 2 YES Requests may be submitted by any means of communication and there is no requirement to use an official form or to state that the request is made pursuant to the OIA. See OQR Vol 8, iss 2, December 2002 page 3: "Requests under the Official Information Act (OIA) do not need to be in writing. An oral request is just as valid." http://ombudsmen.parliament.nz/imagelibrary/100213.pdf
16 Public officials are required provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. Score 1 point for help in formulation and 1 point for clarification procedures2 YES 13 Assistance It is the duty of every department, Minister of the Crown, and organisation to give reasonable assistance to a person, who— (a) wishes to make a request in accordance with section 12; or (b) in making a request under section 12, has not made that request in accordance with that section; or (c) has not made his request to the appropriate department or Minister of the Crown or organisation or local authority,— to make a request in a manner that is in accordance with that section or to direct his request to the appropriate department or Minister of the Crown or organisation or local authority. Section 13: amended, on 1 March 1988, by section 57(1) of the Local Government Official Information and Meetings Act 1987 (1987 No 174). Section 13(c): amended, on 1 March 1988, by section 57(1) of the Local Government Official Information and Meetings Act 1987 (1987 No 174). Art 13
17     Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled.Score Yes=2 point, No=02 YES 13 Assistance It is the duty of every department, Minister of the Crown, and organisation to give reasonable assistance to a person, who— (a) wishes to make a request in accordance with section 12; or (b) in making a request under section 12, has not made that request in accordance with that section; or (c) has not made his request to the appropriate department or Minister of the Crown or organisation or local authority,— to make a request in a manner that is in accordance with that section or to direct his request to the appropriate department or Minister of the Crown or organisation or local authority. Section 13: amended, on 1 March 1988, by section 57(1) of the Local Government Official Information and Meetings Act 1987 (1987 No 174). Section 13(c): amended, on 1 March 1988, by section 57(1) of the Local Government Official Information and Meetings Act 1987 (1987 No 174). No specific mention of disabilities - but general duty under Art 13 should cover this.
18 Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working daysScore 1 point for receipt, 1 point for max 5 working days2 NO No mentioned
19 Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held.Score: 1 point for information not held, 1 for referrals or 2 for transfers2 Partially 14 Transfer of requests Where— (a) a request in accordance with section 12 is made to a department or Minister of the Crown or organisation; and (b) the information to which the request relates— (i) is not held by the department or Minister of the Crown or organisation but is believed by the person dealing with the request to be held by another department or Minister of the Crown or organisation, or by a local authority; or (ii) is believed by the person dealing with the request to be more closely connected with the functions of another department or Minister of the Crown or organisation, or of a local authority,— the department or Minister of the Crown or organisation to which the request is made shall promptly, and in any case not later than 10 working days after the day on which the request is received, transfer the request to the other department or Minister of the Crown or organisation, or to that local authority, and inform the person making the request accordingly. Section 14: replaced, on 1 March 1988, by section 57(1) of the Local Government Official Information and Meetings Act 1987 (1987 No 174). Art 14 mandates direct transfers, but also allows them where info is more closely connected to another body. This costs them a point, as authorities should be required to deal with any requests for information they hold even if the information is more closely connected to a different body.
20 Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record).Score: 2 points for Yes, only 1 point if some limitations2 YES 16. "Documents (...) (2)Subject to section 17, the department or Minister of the Crown or organisation shall make the information available in the way preferred by the person requesting it unless to do so would— (a) impair efficient administration; or (b) be contrary to any legal duty of the department or Minister of the Crown or organisation in respect of the document; or (c) prejudice the interests protected by section 6 or section 7 or section 9 and (in the case of the interests protected by section 9) there is no countervailing public interest.(...)"
21 Public authorities are required to respond to requests as soon as possible.Score: No=0, Yes=2 points 2 YES Art 15 "Subject to this Act <...> as soon as reasonably practicable <...> a) decide whether the request is to be granted and, if it is to be granted, in what manner and for what charge(if any); and (b) give or post to the person who made the request notice of the decision on the request."
22 There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication).Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less.2 Partially Art 15 "Subject to this Act <...> as soon as reasonably practicable,and in any case not later than 20 working days after the day on which the request is received by that department or Minister of the Crown or organisation,— a) decide whether the request is to be granted and, if it is to be granted, in what manner and for what charge(if any); and (b) give or post to the person who made the request notice of the decision on the request." 20 working days
23 There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension.---2 Partially 15A Extension of time limits (1) Where a request in accordance with section 12 is made or transferred to a department or Minister of the Crown or organisation, the chief executive of that department or an officer or employee of that department authorised by that chief executive or that Minister of the Crown or that organisation may extend the time limit set out in section 14 or section 15(1) in respect of the request if— (a) the request is for a large quantity of official information or necessitates a search through a large quantity of information and meeting the original time limit would unreasonably interfere with the operations of the department or the Minister of the Crown or the organisation; or (b) consultations necessary to make a decision on the request are such that a proper response to the request cannot reasonably be made within the original time limit. (2) Any extension under subsection (1) shall be for a reasonable period of time having regard to the circumstances. (3) The extension shall be effected by giving or posting notice of the extension to the person who made the request within 20 working days after the day on which the request is received. (4) The notice effecting the extension shall— (a) specify the period of the extension; and (b) give the reasons for the extension; and (c) state that the person who made the request for the official information has the right, under section 28(3), to make a complaint to an Ombudsman about the extension; and (d) contain such other information as is necessary. Section 15A: inserted, on 1 April 1987, by section 9(1) of the Official Information Amendment Act 1987 (1987 No 8). Section 15A(1): amended, on 1 April 1988, pursuant to section 90(d) of the State Sector Act 1988 (1988 No 20). Art 15(a) - there is a requirement for notification, but no firm time limit.
24 It is free to file requests.Score: No=0, Yes=2 points2 YES
25 There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and a certain initial number of pages (at least 20) are provided for free. Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional2 YES 15 Decisions on requests (1) Subject to this Act, the department or Minister of the Crown or organisation to whom a request is made in accordance with section 12 or is transferred in accordance with section 14 of this Act or section 12 of the Local Government Official Information and Meetings Act 1987 shall, as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the request is received by that department or Minister of the Crown or organisation,— (a) decide whether the request is to be granted and, if it is to be granted, in what manner and for what charge (if any); and (b) give or post to the person who made the request notice of the decision on the request. (1A) Subject to section 24, every department or Minister of the Crown or organisation (including an organisation whose activities are funded in whole or in part by another person) may charge for the supply of official information under this Act. (2) Any charge fixed shall be reasonable and regard may be had to the cost of the labour and materials involved in making the information available and to any costs incurred pursuant to a request of the applicant to make the information available urgently. (3) The department or Minister of the Crown or organisation may require that the whole or part of any charge be paid in advance. (4) Where a request in accordance with section 12 is made or transferred to a department, the decision on that request shall be made by the chief executive of that department or an officer or employee of that department authorised by that chief executive unless that request is transferred in accordance with section 14 to another department or to a Minister of the Crown or to an organisation or to a local authority. (5) Nothing in subsection (4) prevents the chief executive of a department or any officer or employee of a department from consulting a Minister of the Crown or any other person in relation to the decision that the chief executive or officer or employee proposes to make on any request made to the department in accordance with section 12 of this Act or transferred to the department in accordance with section 14 of this Act or section 12 of the Local Government Official Information and Meetings Act 1987. Section 15: replaced, on 1 April 1987, by section 8(1) of the Official Information Amendment Act 1987 (1987 No 8). Section 15(1): amended, on 1 March 1988, by section 57(1) of the Local Government Official Information and Meetings Act 1987 (1987 No 174). Section 15(1A): inserted, on 1 December 1989, by section 2 of the Official Information Amendment Act 1989 (1989 No 122). Section 15(4): amended, on 1 April 1988, pursuant to section 90(d) of the State Sector Act 1988 (1988 No 20). Section 15(4): amended, on 1 March 1988, by section 57(1) of the Local Government Official Information and Meetings Act 1987 (1987 No 174). Section 15(5): amended, on 1 April 1988, pursuant to section 90(d) of the State Sector Act 1988 (1988 No 20). Section 15(5): amended, on 1 March 1988, by section 57(1) of the Local Government Official Information and Meetings Act 1987 (1987 No 174) Art 15 says they must be reasonable, but allows organizations to charge for the cost of locating the information as well as for reproduction and delivery costs. The Ministry of Justice Charging Guidelines for Official Information Act 1982 Requests: 2.1(c) makes clear that 1st 20 pages are free, and 7.1 discusses fee waivers (charging is entirely optional by the agency). Staff time for locating and retrieving information can be charged, although not decision-making time. http://www.justice.govt.nz/publications/global-publications/m/ministry-of-justice-charging-guidelines-for-official-information-act-1982-requests-18-march-2002
26   There are fee waivers for impecunious requesters ---2 Partially Fees are discretionary, but the act does not contain a specific waiver for financial hardship.
27 There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. Score: No=0, Yes=2 points2 NO 48. "Protection against certain actions (...) (2) The making available of, or the giving of access to, any official information in consequence of a request made under this Act shall not be taken, for the purposes of the law relating to defamation or breach of confidence or infringement of copyright, to constitute an authorisation or approval of the publication of the document or of its contents by the person to whom the information is made available or the access is given. Section 48: replaced, on 1 April 1987, by section 21 of the Official Information Amendment Act 1987 (1987 No 8)." No - see s. 48(2) OIA


Exceptions

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Scoring instructions
MAX score
Findings

Points

Article

Comments
28 The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict.Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. 4 NO 18. "Refusal of requests A request made in accordance with section 12 may be refused only for 1 or more of the following reasons, namely: (...) (c) that the making available of the information requested would— (i) be contrary to the provisions of a specified enactment(...)" 52. "Savings. (...) Except as provided in sections 50 and 51, nothing in this Act derogates from— (a) any provision which is contained in any other enactment and which authorises or requires official information to be made available; or (b) any provision which is contained in any other Act of Parliament or in any regulations within the meaning of the Regulations (Disallowance) Act 1989 (made by Order in Council and in force immediately before 1 July 1983) and which— (i) imposes a prohibition or restriction in relation to the availability of official information; or (ii) regulates the manner in which official information may be obtained or made available; or (c) any provision of any Order in Council made under the Commissions of Inquiry Act 1908 or of any other document by which a Royal commission or commission of inquiry or board of inquiry is appointed. Section 52(1): amended, on 1 April 1987, by section 22 of the Official Information Amendment Act 1987 (1987 No 8). Section 52(2)(a): replaced, on 1 March 2002, by section 170(1) of the Public Trust Act 2001 (2001 No 100). Section 52(3)(b): amended, on 19 December 1989, pursuant to section 11 of the Regulations (Disallowance) Act 1989 (1989 No 43)." 18(c)(1) - info will be withheld if disclosure would be contrary to the provisions of another enactment. The law also contains various other references to other legislation - such as Art 52(3)
29 The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. It is also permissible to refer requesters to information which is already publicly available, for example online or in published form.Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed10 Partially 9. "Other reasons for withholding official information. (...) (2) Subject to sections 6, 7, 10, and 18, this section applies if, and only if, the withholding of the information is necessary to—(...) (k) prevent the disclosure or use of official information for improper gain or improper advantage.(...)" 9(2)(k) - improper gain or advantage.
30 A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. Score 4 points and then deduct 1 point for each exception which is not subject to the harm test 4 Partially 9. "Other reasons for withholding official information. (...) (2) Subject to sections 6, 7, 10, and 18, this section applies if, and only if, the withholding of the information is necessary to—(...) (b) protect information where the making available of the information— (i) would disclose a trade secret;(...) (f)maintain the constitutional conventions for the time being which protect— (i) the confidentiality of communications by or with the Sovereign or her representative: (ii) collective and individual ministerial responsibility: (iii) the political neutrality of officials: (iv) the confidentiality of advice tendered by Ministers of the Crown and officials;(...)" Trade secrets - 9(2)(b)(I). 9(2)(f) - constitutional conventions of confidence.
31 There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity.Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory.4 Partially 9 Other reasons for withholding official information (1) Where this section applies, good reason for withholding official information exists, for the purpose of section 5, unless, in the circumstances of the particular case, the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available. (2) Subject to sections 6, 7, 10, and 18, this section applies if, and only if, the withholding of the information is necessary to— (a) protect the privacy of natural persons, including that of deceased natural persons; or (b) protect information where the making available of the information— (i) would disclose a trade secret; or (ii) would be likely unreasonably to prejudice the commercial position of the person who supplied or who is the subject of the information; or (ba) protect information which is subject to an obligation of confidence or which any person has been or could be compelled to provide under the authority of any enactment, where the making available of the information— (i) would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied; or (ii) would be likely otherwise to damage the public interest; (c) avoid prejudice to measures protecting the health or safety of members of the public; or (d) avoid prejudice to the substantial economic interests of New Zealand; or (e) avoid prejudice to measures that prevent or mitigate material loss to members of the public; or (f) maintain the constitutional conventions for the time being which protect— (i) the confidentiality of communications by or with the Sovereign or her representative: (ii) collective and individual ministerial responsibility: (iii) the political neutrality of officials: (iv) the confidentiality of advice tendered by Ministers of the Crown and officials; or (g) maintain the effective conduct of public affairs through— (i) the free and frank expression of opinions by or 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; or (ii) the protection of such Ministers, members of organisations, officers, and employees from improper pressure or harassment; or (h) maintain legal professional privilege; or (i) enable a Minister of the Crown or any department or organisation holding the information to carry out, without prejudice or disadvantage, commercial activities; or (j) enable a Minister of the Crown or any department or organisation holding the information to carry on, without prejudice or disadvantage, negotiations (including commercial and industrial negotiations); or (k) prevent the disclosure or use of official information for improper gain or improper advantage. Section 9(2): amended, on 1 April 1987, by section 4(2) of the Official Information Amendment Act 1987 (1987 No 8). Section 9(2)(b): replaced, on 1 April 1987, by section 5(1) of the Official Information Amendment Act 1987 (1987 No 8). Section 9(2)(ba): inserted, on 1 April 1987, by section 5(1) of the Official Information Amendment Act 1987 (1987 No 8). Section 9(2)(g)(i): amended, on 1 April 1987, by section 5(2) of the Official Information Amendment Act 1987 (1987 No 8). Section 9(2)(g)(ii): amended, on 1 April 1987, by section 5(3) of the Official Information Amendment Act 1987 (1987 No 8). Section 9(2)(i): replaced, on 1 April 1987, by section 5(4) of the Official Information Amendment Act 1987 (1987 No 8). Section 9(2)(j): replaced, on 1 April 1987, by section 5(4) of the Official Information Amendment Act 1987 (1987 No 8). Art 9 - public interest override only applies in certain circumstances
32 Information must be released as soon as an exception ceases to apply (for example, for after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old.Score 1 point for each2 NO Not mentioned
33 Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information.Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals.2 Partially 15. "Decisions on requests.(...) (5)Nothing in subsection (4) prevents the chief executive of a department or any officer or employee of a department from consulting a Minister of the Crown or any other person in relation to the decision that the chief executive or officer or employee proposes to make on any request made to the department in accordance with section 12 of this Act or transferred to the department in accordance with section 14 of this Act or section 12 of the Local Government Official Information and Meetings Act 1987.(...)" The OIA mentions this in 15(5), but does not mandate this, nor does it clarify how this should be done.
34 There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted2 YES 17 Deletion of information from documents (1) Where the information requested is comprised in a document and there is good reason for withholding some of the information contained in that document, the other information in that document may be made available by making a copy of that document available with such deletions or alterations as are necessary. (2) Where a copy of a document is made available under subsection (1), the department or Minister of the Crown or organisation shall, subject to section 10, give to the applicant— (a) the reason for withholding the information; and (b) if the applicant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 6 or section 7 or section 9 and (in the case of the interests protected by section 9) there is no countervailing public interest. Section 17(2)(b): amended, on 1 April 1987, by section 4(2) of the Official Information Amendment Act 1987 (1987 No 8).
35 When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures.Score Y/N: 1 point for a and 1 point for b2 YES 19 Reason for refusal to be given Where a request made in accordance with section 12 is refused, the department or Minister of the Crown or organisation, shall,— (a) subject to section 10, give to the applicant— (i) the reason for its refusal; and (ii) if the applicant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 6 or section 7 or section 9 and (in the case of the interests protected by section 9) there is no countervailing public interest; and (b) give to the applicant information concerning the applicant's right, by way of complaint under section 28(3) to an Ombudsman, to seek an investigation and review of the refusal. Section 19(a)(ii): amended, on 1 April 1987, by section 4(2) of the Official Information Amendment Act 1987 (1987 No 8). Section 19(b): amended, on 1 April 1987, by section 16(2) of the Official Information Amendment Act 1987 (1987 No 8).


Appeals

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
36 The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less).Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals.2 NO No internal appeals.
37 Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). 1 for partial, 2 for yes2 YES 28 Functions of Ombudsmen (1) It shall be a function of the Ombudsmen to investigate and review any decision by which a department or Minister of the Crown or organisation— (a) refuses to make official information available to any person in response to a request made by that person in accordance with section 12; or (b) decides, in accordance with section 16 or section 17, in what manner or, in accordance with section 15, for what charge a request made in accordance with section 12 is to be granted; or (c) imposes conditions on the use, communication, or publication of information made available pursuant to a request made in accordance with section 12; or (d) gives a notice under section 10. (2) It shall be a function of the Ombudsmen to investigate and review any decision by which the chief executive of a department or an officer or an employee of a department authorised by its chief executive or a Minister of the Crown or an organisation extends any time limit under section 15A. (3) An investigation and review under subsection (1) or subsection (2) may be made by an Ombudsman only on complaint being made to an Ombudsman in writing or orally. (3A) A complaint made orally must be put in writing as soon as practicable. (4) If, in relation to any request made in accordance with section 12, any department or Minister of the Crown or organisation fails within the time limit fixed by section 15(1) (or, where that time limit has been extended under this Act, within that time limit as so extended) to comply with paragraph (a) or paragraph (b) of section 15(1), that failure shall be deemed, for the purposes of subsection (1), to be a refusal to make available the official information to which the request relates. (5) Undue delay in making official information available in response to a request for that information, shall be deemed, for the purposes of subsection (1), to be a refusal to make that information available. Section 28: replaced, on 1 April 1987, by section 16(1) of the Official Information Amendment Act 1987 (1987 No 8). Section 28(2): amended, on 1 April 1988, pursuant to section 90(d) of the State Sector Act 1988 (1988 No 20). Section 28(3): replaced, on 22 October 2003, by section 5 of the Official Information Amendment Act 2003 (2003 No 90). Section 28(3A): inserted, on 22 October 2003, by section 5 of the Official Information Amendment Act 2003 (2003 No 90). Yes - Art 28 - the Ombudsmen.
38 The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so they are protected against arbitrary dismissal (procedurally/substantively) once appointed.Score: 1 point for appointment procedure, 1 point for security of tenure2 YES 3. "Ombudsmen. (...) (2)Subject to the provisions of section 7, each Ombudsman shall be appointed by the Governor-General on the recommendation of the House of Representatives.(...)" 6 Removal or suspension from office (1) Any Ombudsman may at any time be removed or suspended from his office by the Governor-General, upon an address from the House of Representatives, for inability to perform the functions of the office, bankruptcy, neglect of duty, or misconduct. (2) At any time when Parliament is not in session, any Ombudsman may be suspended from his office by the Governor-General in Council for inability to perform the functions of the office, bankruptcy, neglect of duty, or misconduct proved to the satisfaction of the Governor-General; but any such suspension shall not continue in force beyond 2 months after the beginning of the next ensuing session of Parliament. Compare: 1962 No 10 s 5 Section 6(1): amended, on 1 January 2002, by section 70(1) of the Human Rights Amendment Act 2001 (2001 No 96). Section 6(2): amended, on 1 January 2002, by section 70(1) of the Human Rights Amendment Act 2001 (2001 No 96). By convention, appointment procedure is by Parliament as a whole following report of a bipartisan committee (s. 3(2) OA). Effectively they're appointed unanimously by MPs. Ombudsmen Act Art 6 - can be dismissed by GG on advice of legislature.
39 The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence.Score 1 point for reports to parliament, 1 point for budget approved by parliament2 YES 9. "Salaries and allowances of Ombudsmen. (...) (3) The salary of an Ombudsman is not to be diminished during the continuance of the Ombudsman's appointment.(...)" 29 Annual report Without limiting the right of an Ombudsman to report at any other time, but subject to the provisions of subsection (7) of section 22 and to any rules for the guidance of the Ombudsmen made by the House of Representatives and for the time being in force, the Ombudsmen shall in each year make a report to the House of Representatives on the exercise of their functions under this Act and the Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987 and the Protected Disclosures Act 2000. Compare: 1962 No 10 s 25 Section 29: amended, on 22 October 2003, by section 6 of the Ombudsmen Amendment Act 2003 (2003 No 91). Section 29: amended, on 1 January 1987, by section 27 of the Constitution Act 1986 (1986 No 114). Section 29: amended, on 1 July 1983, by section 6 of the Ombudsmen Amendment Act (No 2) 1982 (1982 No 164). 31 Money to be appropriated by Parliament for purposes of this Act Except as otherwise provided in this Act, all salaries and allowances and other expenditure payable or incurred under or in the administration of this Act shall be payable out of money to be appropriated by Parliament for the purpose. Compare: 1962 No 10 s 27 Yes - Art 29 of Ombudsmen Act, and Art 31 of Ombudsmen Act, as well as 9(3) of the OA.
40 There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise.Score 1 point for not politically connected, 1 point for professional expertise2 Partially 4 Ombudsmen to hold no other office An Ombudsman shall not be capable of being a member of Parliament or of a local authority, and shall not, without the approval of the Prime Minister in each particular case, hold any office of trust or profit, other than his office as an Ombudsman, or engage in any occupation for reward outside the duties of his office. Compare: 1962 No 10 s 3 S.4 OA bars Ombudsmen from being MPs, local authority councillors or holding any other office of 'trust or profit'.
41 The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies.Score 1 point for reviewing classified documents, 1 point for inspection powers2 YES 29 Application of Ombudsmen Act 1975 (1) Except as otherwise provided by this Act, the provisions of the Ombudsmen Act 1975 shall apply in respect of investigations and other proceedings carried out under this Part in respect of decisions under Part 2 or section 10 as if they were investigations carried out under the Ombudsmen Act 1975. (2) Nothing in sections 13, 14, and 25 of the Ombudsmen Act 1975 shall apply in relation to any function or power conferred on an Ombudsman by this Act or in relation to any proceeding, decision, recommendation, or act of an Ombudsman under this Act. 29A Requirements of Ombudsman to be complied with within certain period (1) Subject to this section, where, during the course of an investigation, under section 28, of any decision of any department or Minister of the Crown or organisation, an Ombudsman, pursuant to any power conferred on that Ombudsman by section 19 of the Ombudsmen Act 1975, requires that department or Minister of the Crown or organisation to furnish or produce to that Ombudsman any information or document or paper or thing which relates to that investigation, that department, Minister of the Crown, or organisation shall, as soon as reasonably practicable, and in no case later than 20 working days after the day on which that requirement is received by that department or Minister of the Crown or organisation, comply with that requirement. (2) Where any requirement to which subsection (1) applies is made to any department or Minister of the Crown or organisation, the chief executive of that department or an officer or employee of that department authorised by that chief executive or that Minister of the Crown or that organisation may extend the time limit set out in subsection (1) in respect of that requirement if— (a) the requirement relates to, or necessitates a search through, a large quantity of information or a large number of documents or papers or things, and meeting the original time limit would unreasonably interfere with the operations of the department or the Minister of the Crown or the organisation; or (b) consultations necessary before the requirement can be complied with are such that the requirement cannot reasonably be complied with within the original time limit; or (c) the complexity of the issues raised by the requirement are such that that requirement cannot reasonably be complied with within the original time limit. (3) Any extension under subsection (2) shall be for a reasonable period of time having regard to the circumstances. (4) The extension shall be effected by giving or posting notice of the extension to the Ombudsman within 20 working days after the day on which the requirement is received. (5) The notice effecting the extension shall— (a) specify the period of the extension; and (b) give the reasons for the extension; and (c) contain such other information as is necessary. (6) If any department or Minister of the Crown or organisation fails, within the time limit fixed by subsection (1) (or, where that time limit has been extended under subsection (2), within that time limit as so extended) to comply with any requirement to which subsection (1) applies, the Ombudsman may report such failure to the Prime Minister, and may thereafter make such report to the House of Representatives on the matter as the Ombudsman thinks fit. (7) Notwithstanding anything in this section, an Ombudsman shall not, in any report made under subsection (6), make any comment that is adverse to any person unless the person has first been given an opportunity to be heard. Section 29A: inserted, on 1 April 1987, by section 17(1) of the Official Information Amendment Act 1987 (1987 No 8). Section 29A(2): amended, on 1 April 1988, pursuant to section 90(d) of the State Sector Act 1988 (1988 No 20). 27 Power of entry on premises (1) For the purposes of this Act, but subject to the provisions of this section, an Ombudsman may at any time enter upon any premises occupied by any of the departments or organisations named or specified in Schedule 1 and inspect the premises and, subject to the provisions of sections 19 and 20, carry out therein any investigation that is within his jurisdiction. (2) Before entering upon any such premises an Ombudsman shall notify the chief executive of the department or, as the case may require, the chief executive of the organisation by which the premises are occupied. (3) The Attorney-General may from time to time by notice to the Chief Ombudsman exclude the application of subsection (1) to any specified premises or class of premises, if he is satisfied that the exercise of the power conferred by this section might prejudice the security, defence, or international relations of New Zealand, including New Zealand's relations with the government of any other country or with any international organisation. Compare: 1962 No 10 s 23 Section 27(2): amended, on 1 July 2003, by section 262 of the Local Government Act 2002 (2002 No 84). Section 27(2): amended, on 1 April 1988, pursuant to section 90(d) of the State Sector Act 1988 (1988 No 20). Art 29(1)(a) accords inspection powers. Art 27 of Ombudsman Act allows entry onto any premises.
42 The decisions of the independent oversight body are binding. Score N=0, Y=2 points2 Partially 31 Disclosure of certain information not to be recommended Where— (a) the Prime Minister certifies that the making available of any information would be likely to prejudice— (i) the security or defence of New Zealand or the international relations of the Government of New Zealand; or (ii) any interest protected by section 7; or (b) the Attorney-General certifies that the making available of any information would be likely to prejudice the prevention, investigation, or detection of offences— an Ombudsman shall not recommend that the information be made available, but may recommend that the making available of the information be given further consideration by the appropriate department or Minister of the Crown or organisation. 32 Recommendations made to department or Minister of the Crown or organisation (1) Where a recommendation is made under section 30(1) to a department or to an organisation named in Part 1 or Part 2 of Schedule 1 of the Ombudsmen Act 1975,— (a) a public duty to observe that recommendation shall be imposed on that department or organisation from the commencement of the 21st working day after the day on which that recommendation is made to the department or organisation unless, before that day, the Governor-General, by Order in Council, otherwise directs; and (b) the public duty imposed by paragraph (a) shall be imposed not only on the department or organisation itself but also on— (i) the members of the organisation; and (ii) every officer and employee of that department or organisation to whom that recommendation is applicable; and (iii) every body within that department or organisation to whom that recommendation is applicable; and (iv) every statutory officer to whom that recommendation is applicable. (2) Where a recommendation is made under section 30(1) to a Minister of the Crown, a public duty to observe that recommendation shall be imposed on that Minister from the commencement of the 21st working day after the day on which that recommendation is made to that Minister unless, before that day, the Governor-General, by Order in Council, otherwise directs. (3) Where a recommendation is made under section 30(1) to an organisation named in Schedule 1,— (a) a public duty to observe that recommendation shall be imposed on that organisation from the commencement of the 21st working day after the day on which that recommendation is made to that organisation unless, before that day, the Governor-General, by Order in Council, otherwise directs; and (b) the public duty imposed by paragraph (a) shall be imposed not only on the organisation itself but also on— (i) its governing body (if any); and (ii) its members; and (iii) every officer, employee, and body within that organisation to whom that recommendation is applicable; and (iv) every statutory officer to whom that recommendation is applicable. (4) As soon as practicable after an Order in Council is made under this section, the Minister who recommended the making of that Order in Council shall give a copy of that Order in Council to the Ombudsman who made the recommendation. (5) Nothing in this section— (a) limits section 8 of the Judicature Amendment Act 1972; or (b) prevents effect being given to any interim order made under section 8 of the Judicature Amendment Act 1972 or to any declaration contained in any such interim order. Section 32: replaced, on 1 April 1987, by section 18 of the Official Information Amendment Act 1987 (1987 No 8). Ombudsman's recommendations are binding in some instances (Art 32) but not in others (Art 31). According to our expert, these provisions have never been used, but the fact that they're still on the books costs a point nonetheless due to the structure of our rating system in measuring legislative framework rather than implementation.
43 In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. 1 for partial, 2 for fully2 Partially 30 Procedure after investigation (1) Where, after making an investigation of a complaint made under section 28, an Ombudsman is of the opinion— (a) that the request made in accordance with section 12 should not have been refused; or (b) that the decision complained of is unreasonable or wrong or is otherwise a decision to which subsection (1) or subsection (2) of section 22 of the Ombudsmen Act 1975 applies,— the Ombudsman shall, subject to subsection (3) of this section,— (c) report his opinion and his reasons therefor to the appropriate department or Minister of the Crown or organisation; and (d) subject to section 31, make such recommendations as he thinks fit; and (e) give to the complainant— (i) a copy of his recommendations (if any); and (ii) such other information as he thinks proper. (2) The Ombudsman shall also— (a) in the case of an investigation relating to a department or organisation named in Part 1 or Part 2 of Schedule 1 of the Ombudsmen Act 1975, send a copy of his report and recommendations to the Minister concerned; and (b) in the case of an organisation named in Schedule 1, send a copy of his report and recommendations to such Minister of the Crown as he considers appropriate. (3) Notwithstanding anything in this section, an Ombudsman shall not, in any report made under this section, make any comment that is adverse to any person unless the person has been given an opportunity to be heard. (4) Except as provided in subsection (1), nothing in section 22 of the Ombudsmen Act 1975 shall apply in respect of a decision that may be investigated and reviewed under section 28(1) or section 28(2) of this Act. Section 30(4): amended, on 1 April 1987, by section 16(3) of the Official Information Amendment Act 1987 (1987 No 8). 32 Recommendations made to department or Minister of the Crown or organisation (1) Where a recommendation is made under section 30(1) to a department or to an organisation named in Part 1 or Part 2 of Schedule 1 of the Ombudsmen Act 1975,— (a) a public duty to observe that recommendation shall be imposed on that department or organisation from the commencement of the 21st working day after the day on which that recommendation is made to the department or organisation unless, before that day, the Governor-General, by Order in Council, otherwise directs; and (b) the public duty imposed by paragraph (a) shall be imposed not only on the department or organisation itself but also on— (i) the members of the organisation; and (ii) every officer and employee of that department or organisation to whom that recommendation is applicable; and (iii) every body within that department or organisation to whom that recommendation is applicable; and (iv) every statutory officer to whom that recommendation is applicable. (2) Where a recommendation is made under section 30(1) to a Minister of the Crown, a public duty to observe that recommendation shall be imposed on that Minister from the commencement of the 21st working day after the day on which that recommendation is made to that Minister unless, before that day, the Governor-General, by Order in Council, otherwise directs. (3) Where a recommendation is made under section 30(1) to an organisation named in Schedule 1,— (a) a public duty to observe that recommendation shall be imposed on that organisation from the commencement of the 21st working day after the day on which that recommendation is made to that organisation unless, before that day, the Governor-General, by Order in Council, otherwise directs; and (b) the public duty imposed by paragraph (a) shall be imposed not only on the organisation itself but also on— (i) its governing body (if any); and (ii) its members; and (iii) every officer, employee, and body within that organisation to whom that recommendation is applicable; and (iv) every statutory officer to whom that recommendation is applicable. (4) As soon as practicable after an Order in Council is made under this section, the Minister who recommended the making of that Order in Council shall give a copy of that Order in Council to the Ombudsman who made the recommendation. (5) Nothing in this section— (a) limits section 8 of the Judicature Amendment Act 1972; or (b) prevents effect being given to any interim order made under section 8 of the Judicature Amendment Act 1972 or to any declaration contained in any such interim order. Section 32: replaced, on 1 April 1987, by section 18 of the Official Information Amendment Act 1987 (1987 No 8). Ombudsmen's investigations are S 30 and 32 give the Ombudsmen broad powers, however while the Ombudsman can order that a document should not be withheld they do not have the power to declassify it.
44 Requesters have the right to lodge a judicial appeal.1 for partially, 2 for fully.2 YES 34 Restriction on application for review Where any person makes a request under this Act that official information be made available to him and a decision to which section 28(1) or section 28(2) applies is made in relation to that request, that person— (a) shall not make an application under section 4(1) of the Judicature Amendment Act 1972 for the review of that decision; and (b) shall not commence any proceedings in which that decision is sought to be challenged, quashed, or called in question in any court,— unless a complaint made by that person in respect of that decision has first been determined under this Part. Section 34: amended, on 1 April 1987, by section 16(5) of the Official Information Amendment Act 1987 (1987 No 8). 32B Right of review (1) Where— (a) a recommendation is made under section 30(1) in respect of a request made under section 12; and (b) an Order in Council is made under section 32 in respect of that recommendation,— the person who made that request may apply to the High Court for a review of the making of that Order in Council. (2) An application under subsection (1) may be made on the ground that the Order in Council was beyond the powers conferred by sections 32 and 32A or was otherwise wrong in law. (3) On an application under subsection (1), the High Court may— (a) make an order confirming that the Order in Council was validly made; or (b) make an order declaring that the making of the Order in Council was beyond the powers conferred by sections 32 and 32A or was otherwise wrong in law. (4) Unless the High Court is satisfied that an application brought under subsection (1) has not been reasonably or properly brought, it shall, in determining the application and irrespective of the result of the application, order that the costs of the applicant on a solicitor and client basis shall be paid by the Crown, and such costs shall be paid out of money appropriated by Parliament for the purpose. Section 32B: inserted, on 1 April 1987, by section 18 of the Official Information Amendment Act 1987 (1987 No 8). S 34 of OIA allows the right to seek judicial review of the Ombudsman's decision, but the courts have a high level of deference to the Ombudsman's rulings. 32B also allows for appeals against a government veto of the Ombudsman's recommendations.
45 Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance.1 for free, 1 for no lawyer required. 2 YES Ombudsmen's investigations are conducted for free. See: http://ombudsmen.parliament.nz/index.php?CID=100092 No lawyer is required.
46 The grounds for appeal to the oversight body (where applicable, or to the judiciary if no such body exists) are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.).Score 1 point for appealing refusals, additional points for appealing other violations.4 YES 28. "Functions of Ombudsmen (1) It shall be a function of the Ombudsmen to investigate and review any decision by which a department or Minister of the Crown or organisation— (a) refuses to make official information available to any person in response to a request made by that person in accordance with section 12; or (b) decides, in accordance with section 16 or section 17, in what manner or, in accordance with section 15, for what charge a request made in accordance with section 12 is to be granted; or (c) imposes conditions on the use, communication, or publication of information made available pursuant to a request made in accordance with section 12; or (d) gives a notice under section 10.(...)" Art 28(1) - very broad.
47 Clear procedures, including timelines, are in place for dealing with external appeals (oversight/judicial).Score 1 point for clear procedures, 1 point for timelines. 2 Partially Ombudsmen Act 1975 contains fairly clear procedures - but no timelines.
48 In the appeal process (oversight/judicial/) the government bears the burden of demonstrating that it did not operate in breach of the rules.Score Y/N and award 2 points for yes. 2 YES 5 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. The provisions of s. 5 OIA apply to the Ombudsmen when conducting their investigation so, in effect, the answer is 'yes'.
49 The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better record management)1 for partial, 2 for fully. 2 Partially 32 Recommendations made to department or Minister of the Crown or organisation (1) Where a recommendation is made under section 30(1) to a department or to an organisation named in Part 1 or Part 2 of Schedule 1 of the Ombudsmen Act 1975,— (a) a public duty to observe that recommendation shall be imposed on that department or organisation from the commencement of the 21st working day after the day on which that recommendation is made to the department or organisation unless, before that day, the Governor-General, by Order in Council, otherwise directs; and (b) the public duty imposed by paragraph (a) shall be imposed not only on the department or organisation itself but also on— (i) the members of the organisation; and (ii) every officer and employee of that department or organisation to whom that recommendation is applicable; and (iii) every body within that department or organisation to whom that recommendation is applicable; and (iv) every statutory officer to whom that recommendation is applicable. (2) Where a recommendation is made under section 30(1) to a Minister of the Crown, a public duty to observe that recommendation shall be imposed on that Minister from the commencement of the 21st working day after the day on which that recommendation is made to that Minister unless, before that day, the Governor-General, by Order in Council, otherwise directs. (3) Where a recommendation is made under section 30(1) to an organisation named in Schedule 1,— (a) a public duty to observe that recommendation shall be imposed on that organisation from the commencement of the 21st working day after the day on which that recommendation is made to that organisation unless, before that day, the Governor-General, by Order in Council, otherwise directs; and (b) the public duty imposed by paragraph (a) shall be imposed not only on the organisation itself but also on— (i) its governing body (if any); and (ii) its members; and (iii) every officer, employee, and body within that organisation to whom that recommendation is applicable; and (iv) every statutory officer to whom that recommendation is applicable. (4) As soon as practicable after an Order in Council is made under this section, the Minister who recommended the making of that Order in Council shall give a copy of that Order in Council to the Ombudsman who made the recommendation. (5) Nothing in this section— (a) limits section 8 of the Judicature Amendment Act 1972; or (b) prevents effect being given to any interim order made under section 8 of the Judicature Amendment Act 1972 or to any declaration contained in any such interim order. Section 32: replaced, on 1 April 1987, by section 18 of the Official Information Amendment Act 1987 (1987 No 8). 22. "Procedure after investigation. (...) (3)If in any case to which this section applies an Ombudsman is of opinion— (a) that the matter should be referred to the appropriate authority for further consideration; or (b) that the omission should be rectified; or (c) that the decision should be cancelled or varied; or (d) that any practice on which the decision, recommendation, act, or omission was based should be altered; or (e) that any law on which the decision, recommendation, act, or omission was based should be reconsidered; or (f) that reasons should have been given for the decision; or (g) that any other steps should be taken— the Ombudsman shall report his opinion, and his reasons therefor, to the appropriate department or organisation, and may make such recommendations as he thinks fit. In any such case he may request the department or organisation to notify him, within a specified time, of the steps (if any) that it proposes to take to give effect to his recommendations. The Ombudsman shall also, in the case of an investigation relating to a department or organisation named or specified in Parts 1 and 2 of Schedule 1, send a copy of his report or recommendations to the Minister concerned, and, in the case of an investigation relating to an organisation named or specified in Part 3 of Schedule 1, send a copy of his report or recommendations to the mayor or chairperson of the organisation concerned.(...)" Art 32 seems broad enough for this. See Ombudsmen Act s 22(3). However, there is a difference between recommendations under the OIA and under the OA. The government has the power to reject structural solutions - so 1 point here rather than 2.


Sanctions & Proteccions

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
50 Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information.Score 1 point for sanctions for underming right, 1 point for destruction of documents 2 NO No mentioned
51 There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them).Score 1 point for either remedial action or sanctions, 2 points for both 2 YES 22. "Procedure after investigation. (...) (3)If in any case to which this section applies an Ombudsman is of opinion— (a) that the matter should be referred to the appropriate authority for further consideration; or (b) that the omission should be rectified; or (c) that the decision should be cancelled or varied; or (d) that any practice on which the decision, recommendation, act, or omission was based should be altered; or (e) that any law on which the decision, recommendation, act, or omission was based should be reconsidered; or (f) that reasons should have been given for the decision; or (g) that any other steps should be taken— the Ombudsman shall report his opinion, and his reasons therefor, to the appropriate department or organisation, and may make such recommendations as he thinks fit. In any such case he may request the department or organisation to notify him, within a specified time, of the steps (if any) that it proposes to take to give effect to his recommendations. The Ombudsman shall also, in the case of an investigation relating to a department or organisation named or specified in Parts 1 and 2 of Schedule 1, send a copy of his report or recommendations to the Minister concerned, and, in the case of an investigation relating to an organisation named or specified in Part 3 of Schedule 1, send a copy of his report or recommendations to the mayor or chairperson of the organisation concerned.(...)" Yes - this is within the ambit of the Ombudsmen's powers - Ombudsmen Act 1975 Art 22(3)
52 The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law.Score 1 for oversight body, 1 for immunity for others2 YES 48 Protection against certain actions (1) Where any official information is made available in good faith pursuant to this Act,— (a) no proceedings, civil or criminal, shall lie against the Crown or any other person in respect of the making available of that information, or for any consequences that follow from the making available of that information; and (b) no proceedings, civil or criminal, in respect of any publication involved in, or resulting from, the making available of that information shall lie against the author of the information or any other person by reason of that author or other person having supplied the information to a department or Minister of the Crown or organisation. (2) The making available of, or the giving of access to, any official information in consequence of a request made under this Act shall not be taken, for the purposes of the law relating to defamation or breach of confidence or infringement of copyright, to constitute an authorisation or approval of the publication of the document or of its contents by the person to whom the information is made available or the access is given. Section 48: replaced, on 1 April 1987, by section 21 of the Official Information Amendment Act 1987 (1987 No 8). 26 Proceedings privileged (1) Subject to subsection (2),— (a) no proceedings, civil or criminal, shall lie against any Ombudsman, or against any person holding any office or appointment under the Chief Ombudsman, for anything he may do or report or say in the course of the exercise or intended exercise of his functions under this Act or the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987 or the Protected Disclosures Act 2000, unless it is shown that he acted in bad faith: (b) no Ombudsman, and no such person as aforesaid, shall be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything coming to his knowledge in the exercise of his functions under this Act or the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987 or the Protected Disclosures Act 2000. (2) Nothing in subsection (1) applies in respect of proceedings for— (a) an offence against section 78 or section 78A(1) or section 105 or section 105A or section 105B of the Crimes Act 1961; or (b) the offence of conspiring to commit an offence against section 78 or section 78A(1) or section 105 or section 105A or section 105B of the Crimes Act 1961; or (c) the offence of attempting to commit an offence against section 78 or section 78A(1) or section 105 or section 105A or section 105B of the Crimes Act 1961. (3) Anything said or any information supplied or any document, paper, or thing produced by any person in the course of any inquiry by or proceedings before an Ombudsman under this Act or the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987 or the Protected Disclosures Act 2000 shall be privileged in the same manner as if the inquiry or proceedings were proceedings in a court. (4) For the purposes of clause 3 of Part 2 of Schedule 1 of the Defamation Act 1992, any report made by an Ombudsman under this Act, or under the Official Information Act 1982, or under the Local Government Official Information and Meetings Act 1987, or under the Protected Disclosures Act 2000, shall be deemed to be an official report made by a person holding an inquiry under the authority of the Parliament of New Zealand. Section 26: replaced, on 1 July 1983, by section 5 of the Ombudsmen Amendment Act (No 2) 1982 (1982 No 164). Section 26(1)(a): amended, on 22 October 2003, by section 5(1) of the Ombudsmen Amendment Act 2003 (2003 No 91). Section 26(1)(a): amended, on 1 March 1988, by section 57(1) of the Local Government Official Information and Meetings Act 1987 (1987 No 174). Section 26(1)(b): amended, on 22 October 2003, by section 5(1) of the Ombudsmen Amendment Act 2003 (2003 No 91). Section 26(1)(b): amended, on 1 March 1988, by section 57(1) of the Local Government Official Information and Meetings Act 1987 (1987 No 174). Section 26(2)(a): amended, on 1 July 1993, by section 4 of the Ombudsmen Amendment Act 1993 (1993 No 34). Section 26(2)(b): amended, on 1 July 1993, by section 4 of the Ombudsmen Amendment Act 1993 (1993 No 34). Section 26(2)(c): amended, on 1 July 1993, by section 4 of the Ombudsmen Amendment Act 1993 (1993 No 34). Section 26(3): amended, on 22 October 2003, by section 5(1) of the Ombudsmen Amendment Act 2003 (2003 No 91). Section 26(3): amended, on 1 March 1988, by section 57(1) of the Local Government Official Information and Meetings Act 1987 (1987 No 174). Section 26(4): replaced, on 1 February 1993, by section 56(1) of the Defamation Act 1992 (1992 No 105). Section 26(4): amended, on 22 October 2003, by section 5(2) of the Ombudsmen Amendment Act 2003 (2003 No 91). S 48 of OIA, and 26 of OA
53 There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers).Score 2 for strong protections, 1 for moderate protections2 YES This is covered by the Protected Disclosures Act 2000. See: http://www.legislation.govt.nz/act/public/2000/0007/latest/DLM53466.html


Promotional measures

Indicator

Description

Scoring instructions
MAX score
Findings

Points

Article

Comments
54 Public authorities are required to appoint dedicated officials (information officers) or units with a responsibility for ensuring that they comply with their information disclosure obligations.Score Y/N, Y=2 points2 NO No mentioned
55 A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. Score Y/N, Y=2 points2 NO No - the Ombudsman is a general adminstrative investigatory body - not specifically there to promote FOI.
56 Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. Score Y/N, Y=2 points2 Partially 20. "Publication setting out functions of departments and organisations (1) The Ministry of Justice shall cause to be published, not later than the end of the year 1989, a publication that includes in respect of each department and each organisation,— (a) a description of its structure, functions, and responsibilities including those of any of its statutory officers or advisory committees; and (b) a general description of the categories of documents held by it; and (c) a description of all manuals, and similar types of documents which contain policies, principles, rules, or guidelines in accordance with which decisions or recommendations are made in respect of any person or body of persons in his or her or its personal capacity; and (d) a statement of any information that needs to be available to members of the public who wish to obtain official information from the department or organisation, which statement shall include particulars of the officer or officers to whom requests for official information or particular classes of information should be sent.(...) (4) In complying with subsections (1) and (2), the Ministry of Justice shall have regard, among other things, to the need to assist members of the public to obtain official information and to effectively exercise their rights under this Act.(...) 20(1) - this doesn't quite meet all the requirements of a promotional guide - but the fact that 20(4) states that it's being produced with the aim of assisting the public to exercise their right to information means they get a point.
57 A system is in place whereby minimum standards regarding the management of records are set and applied. Score Y/N, Y=2 points2 YES 17 Requirement to create and maintain records (1) Every public office and local authority must create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice, including the records of any matter that is contracted out to an independent contractor. (2) Every public office must maintain in an accessible form, so as to be able to be used for subsequent reference, all public records that are in its control, until their disposal is authorised by or under this Act or required by or under another Act. (3) Every local authority must maintain in an accessible form, so as to be able to be used for subsequent reference, all protected records that are in its control, until their disposal is authorised by or under this Act. S 17 of the Public Records Act 2005 here: http://www.legislation.govt.nz/act/public/2005/0040/latest/DLM345529.html
58 Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. Score Y/N, Y=2 points2 YES 20. "Publication setting out functions of departments and organisations (1) The Ministry of Justice shall cause to be published, not later than the end of the year 1989, a publication that includes in respect of each department and each organisation,— (a) a description of its structure, functions, and responsibilities including those of any of its statutory officers or advisory committees; and (b) a general description of the categories of documents held by it; and (c) a description of all manuals, and similar types of documents which contain policies, principles, rules, or guidelines in accordance with which decisions or recommendations are made in respect of any person or body of persons in his or her or its personal capacity; and (d) a statement of any information that needs to be available to members of the public who wish to obtain official information from the department or organisation, which statement shall include particulars of the officer or officers to whom requests for official information or particular classes of information should be sent.(...)" 20(1)
59 Training programs for officials are required Score Y/N, Y=2 points2 NO No mentioned
60 Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. Score Y/N, Y=2 points2 NO No mentioned
61 A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. Score Y/N, Y=2 points2 NO No mentioned