MINISTRY OF CULTURE AND HERITAGE
This presentation is the property of its rightful owner.
Sponsored Links
1 / 55

What you need to know PowerPoint PPT Presentation


  • 35 Views
  • Uploaded on
  • Presentation posted in: General

MINISTRY OF CULTURE AND HERITAGE 30 November 2010 Official information requests What are the requirements? Emma Leach Senior Business Advisor Office of the Ombudsmen. What you need to know. Overview of the OIA: Purpose Key provisions Processing a request: The requirements on agencies

Download Presentation

What you need to know

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -

Presentation Transcript


What you need to know

MINISTRY OF CULTURE AND HERITAGE30 November 2010Official information requests What are the requirements?Emma Leach Senior Business AdvisorOffice of the Ombudsmen


What you need to know

What you need to know

Overview of the OIA:

  • Purpose

  • Key provisions

    Processing a request:

  • The requirements on agencies

  • Information about third parties

    The Ombudsmen:

  • Who they are and what they do


What you need to know

The pre-OIA years

Official Secrets Act 1951

Assumed that official information

  • was the property of the government

  • should never be releasedwithout specific reason or authorisation

    Criminal sanctions if released

  • hard to get information released

  • led to public criticism and concern


A need for change

A need for change

  • The public wanted greater access to information on the policies and activities of the government

  • Government officials recognised the need to keep the public informed and provide clear reasons for decisions


Introduction of the oia

Introduction of the OIA

1980 Danks Committee Recommendations

Replace the Official Secrets Act

“…the Government should reaffirm its responsibility to keep the public informed of its activities and make official information available unless there is good reason to withhold it”

1982 Official Information Act

1987 Local Government Official Information and Meetings Act


The constitutional importance of the oia

The Constitutional Importance of the OIA

The OIA enables the public to have timely access to adequate information so they can:

  • have a say and an opportunity to influence decision-making

  • hold the government to account for its decisions

  • understand why decisions were made


What you need to know

Key purposes of the OIA

Section 4

to increase progressively the availability of official information:

  • to enable more effective participation

  • to promote accountability

  • to enhance respect for the law and promote the good government of New Zealand


Principle of availability section 5

Principle of Availability – Section 5

When deciding whether official information should be released, a government agency must follow the principle that:

“the information shallbe made available unless

there is good reason for withholding it”


Principle of availability section 51

Principle of Availability – Section 5

Sometimes the release of information can do more harm than good:

  • Breach privacy

  • Break a promise of confidentiality

  • Prejudice a commercial position or negotiations

  • Cause harm or danger


Key purposes of the oia

Key purposes of the OIA

  • to protect official information to the extent consistent with the public interest and the preservation of personal privacy

  • to increase the availability of official information:

    - toenable more effective participation

    - to promote accountability and

    - to enhance respect for the law and promote the good government of New Zealand


Balancing competing public interests

Favouring release

Accountabilityvs

Transparency

Public participation in decision-making

Favouring withholding

Prejudice to:

Privacy

Commercial position

Negotiations

Confidential information

Free and frank expressions of opinion

Balancing competing public interests


What requests will trigger the oia

What requests will trigger the OIA?

Section 12

Requests can be made by any person who is:

  • a New Zealand citizen

  • a permanent resident of New Zealand

  • a person who is in New Zealand

  • a body corporate which is incorporated in New Zealand

  • a body corporate which has a place of business in New Zealand

    There is no set form in which to make a request


What you need to know

What is “official information”?

Any informationheld by a government agency including:

  • Drafts

  • E-mails

  • Minutes of meetings

  • Notes

  • Maps

  • Photographs

  • Video and sound recordings

  • Texts

  • Information held by independent contractors engaged by the agency (relating to that contract)

  • Knowledge of a particular state of affairs held by officials in their official capacity


What you need to know

What is “official information”?

No restrictions based on:

  • where the information is physically located

  • where the information was generated


What you need to know

What is “official information”?

Any informationheld by a government agency including:

  • Drafts

  • E-mails

  • Minutes of meetings

  • Notes

  • Maps

  • Photographs

  • Video and sound recordings

  • Texts

  • Information held by independent contractors engaged by the agency (relating to that contract)

  • Knowledge of a particular state of affairs held by officials in their official capacity


Why does it matter

Why does it matter?

If a request is made to a government agency for official information, the rules of the OIA apply:

  • Timeframes must be met

  • Limited reasons for refusing requests

  • The principle of availability must be applied

  • Investigation and review by an Ombudsman


Which set of rules in the oia

Which set of rules in the OIA?

Part 2

requests for access to official information

Part 4

requests for access to personal information

about a body corporate

Why the distinction?


Part 4 requests for personal information

Part 4Requests for personal information

  • Every person has a right to be given on request:

    • access to any personal information which is about that person

    • and which can be readily retrieved

  • There are only limited grounds for refusal

  • If the person is given access:

    • the agency must be sure it is sent to the correct person

    • they must be advised of their right to request correction of the information


Which set of rules

Which set of rules?

Part 2

requests for official information

Part 4

requests for personal information about a body corporate

Privacy Act

requests for personal information about a natural person

Part 3

requests for policies, guidelines and rules

used for decision making

&

requests for reasons why a decision was made


Maximum time limits

Maximum time limits

20 working days

maximum time limit for making a decision and communicating it to the requester

10 working days

maximum time limit for transferring the request

to another agency


Maximum time limits1

Maximum time limits

Time limits start

  • the day after the agency receives the request

    What is a working day?

  • Not weekends

  • Not public holidays

  • Not 25 December to 15 January


Maximum time limits2

Maximum time limits

20 working days

maximum time limit for making a decision and communicating it to the requester

10 working days

maximum time limit for transferring the request

to another agency


The legal obligations

The legal obligations

  • Make a decision and communicate it to the requester:

    “as soon as reasonably practicable and in no case later than 20 working days after the day on which the request is received”

  • Release any information the agency has made a decision on without “undue delay”


Requests for urgency

Requests for urgency

Section 12(3)

“If the person making the request asks that [their] request be treated as urgent,

[that person] shall give…reasons for seeking the information urgently”.


The legal obligations when urgency requested

The legal obligations when urgency requested

  • Make a decision and communicate it to the requester:

    “as soon as reasonably practicable and in no case later than 20 working days after the day on which the request is received”

  • Release any information the agency hasmade a decision on without “undue delay”


Tools to manage requests

Tools to manage requests

  • Consulting the requester

  • Transfer

  • Choosing the form in which information is released

  • Imposing conditions

  • Charging

  • Extensions

  • Consulting third parties

  • Refusing the request


Transferring a request

Transferring a request

  • An agency must transfer if:

    • the agency doesn't hold the information but believes another central or local government agency does

    • the agency does hold the information, but believes the information is more closely connected with the functions of another central or local government agency

  • Must be done within 10 working days


Form in which information is released

Form in which information is released

If the requested information is in document form an agency’s options for release include:

  • copy

  • inspection

  • summary

  • oral briefing

  • transcript

  • video/disc/tape

    The agency must provide the information in the way preferred by the requester unless doing so would:

  • impair efficient administration

  • be contrary to a legal duty, or

  • prejudice certain interests protected under OIA


Imposing conditions

Imposing conditions

  • OIA recognises that information may be released subject to conditions

  • Conditions usually relate to a legitimate need for the information not to be:

    • Disclosed publicly

    • Released out of context

  • Conditions are not enforceable under OIA – rely on trust


Extending the maximum time limits

Extending the maximum time limits

  • May extend the time limits for transfer or for making a decision

  • A reasonable extension may be made if:

    • the request is for a large quantity of information or the agency needs to search through a large quantity of information and doing this within the original timeframe would unreasonably interfere with the operations of the agency

      OR

    • The agency needs to consult others to make the decision and because of this, a proper response to the request can’t reasonably be made within the original time limit


What you need to know

Consulting third parties

  • OIA recognises that agencies may consult third parties before making a decision on a request

  • This includes the subject of the information – who may have concerns about its release

  • The third party cannot veto release – the decision remains with the government agency


What you need to know

Tips for third parties

  • Be aware that the government agency has a set timeframe it must meet

  • If you need more time – tell the agency as soon as possible – the agency may be able to extend its timeframe for making a decision

  • If you have concerns with release, explain your concerns in detail – this will help the agency to consider whether there is good reason to refuse the request


What you need to know

Limited reasons to refuse a request

Requests for official information under Part 2 of the OIA

may only be refused for one of the reasons set out in the Act:

  • administrative reasons (section 18)

  • good reasons (section 9)

  • conclusive reasons (section 6)


Administrative reasons section 18

Administrative reasons (section 18)

  • Release would be contrary to legislation or contempt of court

  • The information is, or will soon be, publicly available

  • The information does not exist or can’t be found

  • The information is not held by the agency

  • Substantial collation or research would be required

  • The request is frivolous or vexatious or the information requested is trivial


Good reasons section 9

Good reasons (section 9)

Some of the reasons for withholding information under section 9(2) are:

  • Privacy

  • A trade secret

  • Information held in confidence

  • Free and frank opinions

  • Legal professional privilege

  • Prejudice to commercial interests

  • Prejudice to negotiations

    Does not depend on the type of information requested - you need to identify a harm in release


When a section 9 ground becomes a good reason to refuse official information

When a section 9 ground becomes a “good reason” to refuse official information

A two stage test:

  • Disclosure must cause a harm that is protected in section 9(2)

    2. If so, the need to withhold information must not be outweighed by a public interest in release - section 9(1)


Balancing competing public interests1

Favouring release

Accountabilityvs

Transparency

Public participation in decision-making

What if it’s a 50/50 call?

Favouring withholding

Prejudice to:

Privacy;

Commercial position;

Negotiations;

Confidential information;

Free and frank expressions of opinion;

Maintenance of the law

Balancing competing public interests


When a section 9 ground becomes a good reason to refuse official information1

When a section 9 ground becomes a “good reason” to refuse official information

A two stage test:

  • Disclosure must cause a harm that is protected in section 9(2)

    2. If so, the need to withhold information must not be outweighed by a public interest in release - section 9(1)


Oia request

OIA request

Please tell me how much

your Chief Executive is getting paid

and provide me with a breakdown of the total remuneration package


Privacy

Privacy

“if…withholding…is necessary to

protect the privacy of natural persons, including deceased natural persons”

Section 9(2)(a)


Balancing competing public interests2

Favouring release

Accountabilityvs

Transparency

Favouring withholding

Prejudice to Chief Executive’s privacy

Balancing competing public interests


Oia request1

OIA request

Please tell me how much

your receptionist is being paid


Balancing competing public interests3

Favouring release

Accountabilityvs

Transparency

Favouring withholding

Prejudice receptionist’s privacy

Balancing competing public interests


Conclusive reasons section 6

Conclusive reasons (section 6)

If making the information available would be likelyto:

  • Prejudice the security or defence of NZ

  • Prejudice NZ’s international relations

  • Prejudice the maintenance of the law

  • Seriously damage NZ’s economy

  • Endanger the safety of another person

    No need to balance against public interest in release


The ombudsmen

The Ombudsmen

Chief Ombudsman Beverley Wakem Ombudsman David McGee

“The Ombudsman is Parliament’s man,

put there for the protection of the individual,

& if you protect the individual, you protect society”


The ombudsmen1

The Ombudsmen

Ombudsmen Act– investigate government conduct

Protected Disclosures Act- guidance for whistleblowers

Crimes of Torture Act-monitor places of detention

Disabilities Convention – protect and monitor

OIA and LGOIMA


What you need to know

Role of the Ombudsmen

  • The Ombudsmen can investigate complaints about:

    • refusals of requests

    • delays

    • charges

    • manner of release

    • conditions on use, communication, publication

    • extensions of time limits for responding

    • decisions to transfer


Investigation by an ombudsman

Investigation by an Ombudsman

Conduct investigations in private

Take an oath of secrecy

Can require information and documents to be produced on demand


Investigation by an ombudsman1

Investigation by an Ombudsman

Ombudsmen form an independent opinion whether the agency met the requirements of the OIA

The Ombudsmen will consider the views of any third party that may be affected

Ombudsmen expect agencies and third parties to provide material to support any concerns with release


Contact us

Contact Us

Please feel free to contact the Ombudsmen

website: www.ombudsmen.parliament.nz

- Pamphlets

- Guidance

- Annual Reports

free-phone: 0800 802 602


Oia request2

OIA request

I want to request funding from the Ministry

I understand you funded a similar project last year

Please provide me with:

  • your budget for this year’s funding round

  • your agreement with the organisation that had a similar project funded last year


Confidential information

Confidential Information

  • If withholding is necessary to protect:

    - information subject to an obligation of confidence

    - or information which a person is legally compelled to provide

  • and making the information available:

    - would be likely to prejudice the supply of information, and it is in the public interest that such information should continue to be supplied

    - or would be likely to otherwise damage the public interest

    Section 9(2)(ba)


Negotiations

Negotiations

“enable [any] organisation holding the information to carry on,

without prejudice or disadvantage, negotiations”

Section 9(2)(j)


Balancing competing public interests4

Favouring release

Accountabilityvs

Transparency

Public participation

Favouring withholding

Prejudice future

supply of confidential information

Prejudice or disadvantage ability to carry out negotiations

Balancing competing public interests


  • Login