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Making a request for official information
As we are all aware, more and more information about us is being held by more and more government and other agencies, but how do we go about finding out what information is held, or obtaining a copy of it?
The short answer is by making a request for official information. In this article, we will try to expand the short answer a bit.
1. Who can make a request for official information?
Any New Zealand citizen or permanent resident or any person who is in New Zealand.
2. Who can I request official information from?
• Ministers of the Crown.
• Local and central government departments and organisations.
• State-owned Enterprises.
• District Health Boards and other public health authorities.
• Educational institutions, including Boards of Trustees.
• Any other “organisation” as defined in the Official Information Act 1982.
You cannot make a request for official information to courts/tribunals, Royal Commissions/Commissions of Enquiry, or Members of Parliament.
3. Is there a way of finding out who holds the required information?
The Ministry of Justice website (www.justice.govt.nz) has a “Directory of Official Information” available in the “Publications” section. The Directory can be read online. It contains a useful list of all departments/organisations subject to the Official Information Act 1982, and gives information on what each organisation does and the type of information held.
The Directory also contains helpful information on the process for obtaining official information.
4. Does my request have to be made in writing and does it have to be in a particular format?
No and no. However, our advice would be that it would be advisable to make the request in writing. If you do not, you should at least keep a written note of when you made your verbal request, what information you asked for, and who you spoke to.
There is a distinction between a request for personal information (which is governed by the Privacy Act 1993) and a request for other information (which is governed by the Official Information Act 1982 for central government, or the Local Government Official Information and Meetings Act 1987 for local government), but the distinction only affects what happens if your request is refused (see below), so your request does not have to refer to any particular Act.
If you make a request to the wrong organisation, or your request was not specific enough, the recipient organisation is obliged to assist you to make your request in the correct way or request it from the correct organisation.
5. Do I have to pay?
Yes – the information holder is entitled to charge a reasonable fee, which you may be required to pay in advance. The Ministry of Justice has “Charging Guidelines” pertaining to requests under the Official Information Act 1982. Again, these guidelines can be read online at www.justice.govt.nz under “Publications”.
6. How long will it take?
The information holder must respond “as soon as is reasonably practicable” and not later than 20 working days after receipt of the request.
7. Can my request for Official Information be refused?
Yes. However, the Official Information Act 1982 contains a presumption in favour of the release of government information, so you are entitled to receive that information unless there is good reason for it to be withheld or other factors apply.
The “good reasons” are fairly extensive. Some examples:
• Where release would be likely to prejudice New Zealand’s security, defence or international relations, the entrusting of information to the government by foreign governments or international organisations on a confidential basis, or seriously damage the New Zealand economy (by disclosing government policy decisions prematurely).
• Where release would be likely to endanger the safety of any person, to prejudice the maintenance of the law (including the prevention, investigation and detection of offences), or the right to a fair trial.
• To protect someone’s privacy, to protect trade secrets, or the commercial position of the supplier of, or the subject of, the information or to protect the health or safety of the public.
• To avoid prejudice to New Zealand’s “substantial economic interests”.
• To maintain the confidentiality of lawyer-client communications.
Some examples of other factors are:
• Where the information is or will soon be publicly available.
• Where the information or document does not exist or cannot be found.
• Where making the information available would require substantial collating or research.
• Where making the information available would be contrary to a specific Act, or would be in contempt of Court of contempt of Parliament.
• Where, in some sensitive cases (for example, information about terrorism), the existence of the information can neither be confirmed or denied.
• The request is frivolous or vexatious or the information is trivial.
In certain circumstances (e.g. where the information holder is likely to refuse your request on the grounds that the information cannot be found, or would require substantial collating or research), the information holder must consider whether it could help you make your request in a way that would remove the difficulty or could grant your request if it charged a fee.
8. What are my options if my request is refused?
This depends on whether your request is for personal information or other information.
If you are refused personal information or an information holder fails to respond within a required time limit, you can complain to the Privacy Commissioner (under the terms of the Privacy Act 1993). The Privacy Commission has an information hotline (09 302 8666 for Auckland callers, or 0800 803 909 for other areas).
A complaint to the Privacy Commissioner can be made verbally or in writing – the details are available on the Privacy Commissioner’s website: www.privacy.org.nz Complaints should include the name of the agency (and details of any persons within that agency who have been involved with your complaint), a brief description of the problem, relevant dates, and copies of any relevant correspondence.
If the Privacy Commissioner decides that your complaint has merit, he/she will try to resolve the matter between the parties. If this proves to be unsuccessful, the Privacy Commissioner has the option of referring your complaint to the Director of Human Rights Proceedings, who can take your case to the Human Rights Review Tribunal. However, even if your complaint is not referred to the Human Rights Review Tribunal, you do have the option of taking proceedings to that Tribunal yourself. The Tribunal can make various awards, and we can provide you with more information on this if required.
If your request was for other information, you should write to the Ombudsman’s Office nearest to you. There are Ombudsman Offices in Auckland, Wellington and Christchurch. Information is available on the Ombudsman website – www.ombudsman.parliament.nz
Your complaint to the Ombudsman does not have to be in writing but if it is not made in writing, it should be put into writing as soon as practicable. If the Ombudsman thinks that the information requested should have been released, it can recommend to the information holder that it releases the information. If the information holder is part of central government the recommendation becomes binding after 21 working days. The Government can override the recommendation with a veto passed as an Order in Council by Cabinet sitting with the Governor-General, but this veto has almost never been used. If the information holder is a local authority, the Ombudsman’s recommendation becomes binding after 21 working days unless the local authority passes a resolution overriding it.
Article is supplied by East Brewster Ltd in Rotorua – Commercial and Property Law Specialists