Summary of the Issues Paper re the Official Information Act

The Law Commission is working on a review of the Official Information Act. They have just released the first Issues Paper, representing their initial thinking on the matter.

In general they believe that the Official Information Act and Local Govt Official Information and Meetings Act are working well and do not need any major revisions. They suggest:

• That there needs to be more clarity around which agencies are subject to the Act.
• That there is no need to create new categories of documents or information that are exempt from the Act.
• They support the idea of making decisions on a case-by-case basis (rather than having inflexible rules) but believe there needs to be more guidance in the Act and from the Ombudsman.
• That the Government should be able to continue to hide the advice it receives in order to ensure it is "free and frank".
• They continue to support "commercial sensitivity" as a grounds for withholding information, but acknowledge that there is sometimes a public interest in commercially sensitive data being released. They have asked for submissions on how this could be done.
• There is a discussion of privacy issues in relation to the Act, noting that the 1993 Privacy Act was passed 9 years after the OIA. They note some issues with the different approaches taken by the two acts, but recommend no changes.
• That the grounds for refusal "that the information is or will soon be publicly available" should be tightened up so that it will apply less often and that the information must actually be released soon.
• They note that "maintenance of law" is overused as a grounds to refuse the release of information, with some agencies using it to hide information about ongoing investigations where disclosure might hinder the investigation. They then recommend that this should be added as a separate grounds to refuse release.
• They ask for comment on whether it should be possible to refuse to release information to protect cultural matters (as is currently provided for in LGOIMA).
• There is a discussion around the definition of "public interest" and whether the test is being properly administered (some grounds to refuse release can be overridden by the public interest). They recommend making changes to clarify this.
• There is a large section talking about requests and the resourcing difficulties in responding to them. It makes an odd distinction between legitimate requests and "fishing expeditions" that seems to have no basis in law.
• They suggest establishing that certain requesters can be declared to be "vexatious" and their requests ignored.
• The current timeframe of 20 working days is seen as reasonable, with the suggestion that more complex requests should find it easier to have the timeframe extended.
• They suggest that the problem of requests being transferred back and forth between Minister and Department can be resolved by clearer guidelines and that improper or untimely transfers should be a new grounds for complaint.
• They recommend that the regime for charging for OIA requests should be clarified and ask for input.
• They raise the topic of "reverse freedom of information complaints" where someone can complain if information was released improperly and ask for comment.
• They recommend removing the right of Cabinet/the city council to veto the release of information requested by the Ombudsman in response to a complaint. 
• There is a discussion of proactive disclosure – the idea that government departments should publish information before it is requested. They note that this practice is increasing and should be encouraged, but do not suggest making substantive changes. There is a note that this should be reviewed in three years.
• They recommend against publishing a list of OIA requests and results as is done in some other jurisdictions.
• They see no need for further harmonisation between the Public Records Act and the OIA.

The Law Commission has asked for submissions before Friday 10th December 2010.