Official Information Act Guide

Section 12 of the OIA explains who can make a request. This is a very permissive section.

Are you in New Zealand?

If you are, you can use the OIA.

Are you a New Zealand citizen or permanent resident?

If you are, you can use the OIA even if you're not in New Zealand.

None of the above?

You aren't eligible under the OIA, but that doesn't mean you can't ask for information. Agencies can still choose to answer your request. The Ombudsman's guidance on the OIA for Ministers and agencies asks the question "What if a requester is not eligible". Here's what it says: Even if a person is not eligible to make a request for official information under the OIA (for example a person who is overseas and not a New Zealand citizen or resident), they can still ask an agency for the information they are seeking. While the agency is not required to respond in accordance with the requirements of the OIA, it should still deal with the request for information in an administratively reasonable manner. If the person still has any concerns about the response that they receive, then they can complain to the Ombudsman under the [OIA].

If you're not eligible yourself, there's nothing stopping you from asking someone who is eligible to make the request on your behalf.

Almost all information held by a government agency can be requested under the OIA. If you want to know specifically what does and doesn't count as "official information", section 2 of the OIA goes into all the legal detail. It's perhaps easier to give a summary of what you can't ask for:

You can't ask for an agency's opinion on an issue

This gets interpreted as a request to create information, which isn't covered under the OIA. However, you could ask for documents or internal communications about the issue that interests you.

You can't ask for information about yourself under the OIA

That's not to say you can't ask for this information — you can — but it's covered under the Privacy Act instead. The Office of the Privacy Commissioner has an online tool called AboutMe to help you make these requests.

Information likely to cause harm will be withheld

Section 6 of the OIA lays out several good reasons for withholding information, with a focus on preventing harm. You can read this section of the OIA itself for specifics.

Basically, it says that there's a good reason to withhold information if it would be likely to harm national security, international relations, maintenance of the law, or someone's personal safety.

It also says information about changes to economic policies shouldn't be released prematurely under the OIA if that would be likely to seriously harm the economy.

Information expected to be confidential will probably be withheld

Section 9 of the OIA lays out various other reasons withholding information, many of which have a focus on expectations of confidentiality.

For example, information can be withheld if it's necessary to protect someone's privacy, or a trade secret. You're likely to see parts of documents withheld for these reasons, for example if you asked for correspondence an agency received about a certain topic then they'd be likely to withhold the names and contact details of people involved.

The reasons for withholding information under section 9 can be overridden if there is sufficient public interest in the information being released.

Unfortunately, it's not super clear from the OIA alone just what some of the parts of section 9 mean. If you're unsure what a particular clause means, have a look at the list of guidance notes published by the Ombudsman. There's probably one that explains how the section you're wondering about should be applied.

If in doubt, ask.

The worst case scenario is that they say no.

One of the most important things in making a request is directing your question to the right place. This depends heavily on what you're asking for.

If you don't ask the right agency, your request might be delayed because they have to transfer it to an agency that can help you. Or they might refuse your request because they don't hold the information you're looking for.

If you're not sure which agency to ask, the website FYI.org.nz has a list of agencies you can search through. It also has a list of the most popular agencies.

Keep in mind that ministers and the agencies they oversee, e.g. the Minister of Justice and the Ministry of Justice, are separate entities. Unless you are asking for information specific to the minister, such as advice they have received, your request should be directed to the agency.

There are some public bodies that are not covered by the OIA. If you can't find an agency on FYI's list, they might fall under this category. You can still ask them for information, but they aren't bound by the rules of the OIA.

Local government bodies are covered by the LGOIMA rather than the OIA. Generally, the two laws work the same, so this guide should still be useful to you.

My favourite way to make OIA requests is using the website FYI.org.nz. When you make a request there, FYI handles the email correspondence between you and the agency, and keeps your request public so anyone can see what you've requested and how the agency has responded.

It's not the only way you can make a request though. In fact, requests may be made in any form. Section 12(1AA)(a) of the OIA very explicitly states that requests: may be made in any form and communicated by any means (including orally) and you don't need to mention the OIA. This is said explicitly in Section 12(1AA)(b) of the OIA.

This means that any request for information received by a government agency is an OIA request. No matter what form it came in, the agency is obliged to abide by the OIA.

Being able to make requests in any way means you can make them via email, phone, and social media. The Ombudsman's guidance note on requests made online explains that: Any agency that has an email address can receive a request via FYI, and agencies that have a Twitter account or Facebook page can receive requests in that way. But there's a pitfall to be wary of here. Make sure you are directing your request to an address operated by the agency in its official capacity.

This comes up most often when making requests of ministers, because they also have other roles such as being a member of a political party. If your request goes to an email or social media account operated by their political party, For example, in early 2017 I sent an OIA request via Twitter to the account @pmbillenglish, which was operated by the Prime Minister at the time, Bill English. It seemed pretty clear to me at the time that the account was operated in Mr English's official capacity as Prime Minister. However, I was later informed that the account was actually operated by the Office of the Leader of the National Party. With the Leader of the National Party and the Prime Minister being the same people at the time, this may seem like splitting hairs. But when I followed up by inquiring with the Office of the Ombudsman they agreed with what I had been told. Here is an extract from the general guidance they sent me on the matter: it may be arguable that a Minister has not designated a Twitter account or Facebook page for the purpose of receiving electronic communications in their capacity as Minister, and therefore, such communications will not be taken to be received until they come to the Minister’s attention. As there may be no guarantee when this will be, requesters may prefer to use officially designated channels for ministerial communication (see www.beehive.govt.nz). rather than the minister's office, then it won't count.

You should be able to find an appropriate email address on the agency's website. If you can't find a dedicated OIA email address listed, you can send it to a general one. The email addresses for ministers can be found on www.beehive.govt.nz.

If your request was made orally, agencies can request that you put it in writing. You don't need to do this — if you don't, they still have to answer your request — but it's likely a good idea to help them give you the information you're after.

Before you write a request, have a search for the information you're looking for. It's possible that it's already available online, in which case you could have saved yourself a month of waiting.

As well as searching the agency's website, it can be useful to search the requests already made on FYI.org.nz.

Here's a template you can use to write an OIA request. Click on the highlighted sections if you're interested in why I've included a certain section, or what sort of information you might want to fill in.

An OIA request isn't the place for a political rant. Limit yourself to things that will be useful for the person who will be handling your request.

Since examples always help, here's a slightly edited I swapped the order of a few paragraphs and made some minor changes to the wording to better match the template given here, and fixed a typo. You can find the original request on FYI:
Strip searches in New Zealand prisons example of a request that I've sent:

From the day the agency receives your request, they have 20 working days Section 2 of the OIA and LGOIMA each define a working day as any day of the week that isn't a Saturday or Sunday, certain public holidays (including local regional anniversaries for LGOIMA requests), or for a period over the new year. Requests made in December or early January will not get quick responses. The OIA effectively takes a break from the 25th of December to the 15th of January. The LGOIMA also takes a break, but its one runs from the 20th of December to the 10th of January. When you make a request on FYI, it will tell you when to expect a response. There is also an OIA Response Calculator on the Ombudsman's website. Or you can create a bookmarklet (a bookmark that runs some JavaScript code instead of going to a website) in your browser. This will let you input a date (like "2017/09/03"), and be told when a response would be due for an OIA request received on that date (like "2017/09/29"). Remember that the due date might be different for a request made under the LGOIMA. To create this bookmarklet, bookmark this link, or you can click on it to try it out on this page: OIA due date to respond.

Section 15 of the OIA says agencies must make a decision on your request Making a decision on your request can mean anything from giving you the information you asked for, deciding to withhold all or some of it, or transferring you to a different agency. and tell you about it "as soon as reasonably practicable", and certainly no later than 20 working days after receiving the request.

Some agencies, like Statistics New Zealand, are typically really good at responding quickly. Unfortunately this is an exception; most agencies are fairly likely to take the full 20 working days.

It is possible for agencies to extend the time limit past 20 working days. Section 15A of the OIA says they can do this if it's necessary because the information you've asked for takes a long time to retrieve, or if they need to make consultations before they can respond and they can't do this within the standard time limit.

If an agency wants to extend this time limit, they have to tell you that before the initial 20 working days is up. They also have to tell you the reason why they're extending it. Unfortunately, this explanation typically comes in the vague form of saying it's necessary for them to be able to make the necessary consultations.

Agencies are not allowed to require you to make your request via another method, but it sometimes happens. For example, NZ Police have told people making requests via FYI that they must visit a police station to make a request in person, or fill out a particular form.

This is unlawful. It is the agency's responsibility to make sure your request is handled appropriately regardless of how they received it.

If it's straightforward, such as emailing your request to a different address, it may be easier to do as they've asked instead of fighting it. Regardless, you should inform them that section 12(1AA)(a) of the OIA says requests may be made in any form and communicated by any means.

The 20 working days deadline for them to reply to your request is set from when they originally received it. If it takes a week before you make your request again in the way they asked, that wouldn't change the deadline they have to abide by.

Depending on how you've made your request, and if you've had contact with the agency in the past, some agencies will ask for proof of eligibility under the OIA before they will process your request. Often, they will ask for your address to prove you are in New Zealand.

Unfortunately, this is often used as a tactic by some agencies to delay or block requests. Having a government authority demand private information can be intimidating.

You don't need to provide any information you don't want to, though an agency may refuse to fulfil your request if they can't establish eligibility. This isn't usually an issue with most agencies, but some (such as NZ Police) are more likely to ask for proof of eligibility.

The Office of the Ombudsman's guidance note on requests made online contains a section on page 4 on establishing eligibility under the OIA.

If you are asking a local government body for information under the LGOIMA, they cannot ask you to provide proof of eligibility. Unlike the OIA, the LGOIMA allows anyone to make requests. Section 10(1) of the LGOIMA says: Any person may request any local authority to make available to that person any specified official information.

Asking for a very large amount of information is a permitted reason for refusing a request, but agencies can instead propose a fee There are fairly specific guidelines for charging for requests, which lay out what activities can and can't be charged for and how much agencies can charge for their time. If an agency is asking you to pay a fee for them to release certain information, you can ask them for a breakdown of the fee. They'll have to tell you how much time they've estimated for each chargeable activity. You can check this breakdown against the Ombudsman's guidance note on charging to see if they are proposing to charge you for activities that can't be charged for. for the time it would take to retrieve the information.

If you're like me, just some random kiwi wanting to ask the government a question, the fee is likely to be pretty prohibitive.

Depending on what you're asking for, there may be ways you can get around this. For example, you can break up your request into multiple smaller requests and make them sequentially.

If you can collaborate with others, you could break your request up into smaller parts and have a different person send each request. A request in late 2016 asked the Department of Corrections for all Crimes of Torture Act reports produced between 2007 and the end of 2016. In response, Corrections said it would only release this information if it was paid $9,956.00 in advance. Some months later, separate requests were made, each by a different person, for these reports on a per-year basis. For example, this request asked for all those reports produced in 2009. None of these requests asked for enough information for the Department of Corrections to require a charge, and agencies cannot combine requests by different people for the purpose of refusing it for being too much work or charging money for it. The response to these separated requests was for the Department of Corrections to commit to publishing all the requested reports on their website.

Another option is to talk to a member of parliament (you'll probably have better luck with an MP in opposition) about the issue. If they agree to make the request, the agency should usually not charge an MP The Ombudsman's guidance note on charging says that: There is nothing in the legislation which says that MPs and parliamentary research units cannot be charged for the supply of official information. However, the usual approach has been to remit any charge that would otherwise have been fixed, in recognition of the public interest in MPs having access to official information to assist in the reasonable exercise of their democratic responsibilities. for it.

Section 18 of the OIA allows agencies to refuse requests under certain conditions.

Substantial collation or research

Most commonly, requests will be refused under section 18(f) of the OIA, because it would take too much work to make the information available. When this happens, you should consider if you could make a similar request for a smaller amount of information, or perhaps several smaller requests made over a longer period of time.

You could also ask the agency to help you to refine your request. It's possible there is different information they could collect more easily that would still be useful to you.

The information is, or will soon be, publicly available

Agencies can also refuse your request under section 18(d) of the OIA if the information you've asked for is, or soon will be, publicly available. If it's already publicly available, the agency should tell you where you can find it. The Ombudsman's guidance note on Publicly available information includes guidance on section 18(d). It notes that, if a request is refused because the information is publicly available: Also as a matter of good practice, rather than a legal requirement, agencies should consider letting the requester know when the information has been published, and where they can access it.

If it will be publicly available soon, the agency should tell you when they expect it to be available, and they also should contact you when it becomes available.

They should also consider releasing the information to you immediately if it would be easy for them to do, in addition to making it public.

However, not every agency will know this. If you have a request refused under section 18(d), you should remind them of these responsibilities. It may help to quote this provisional opinion from the Ombudsman, which I received in response to a complaint I laid regarding this section of the OIA:

I would like to suggest that in future cases where section 18(d) is being considered for refusal, the following points are taken into account:

• Releasing the information to requestors as soon as reasonably practicable particularly where no harm or prejudice has been identified in the release of the information;
• Providing requestors with a specific date (or a date by which) it is expected that the information will be released; and
• Notifying requestors and providing a link to the information when it becomes known that release of the information is imminent.

Peter Boshier, Chief Ombudsman (Case 448574)

When you do get a response, you may find that some or all of the information you requested has been withheld. The agency has to tell you why each piece of information has been withheld, and different information may have been withheld for different reasons.

Why was it withheld?

When you get a response like this, especially if they've specified the section of the OIA the information was withheld under without much explanation of what that means, it's best to check the relevant section of the OIA yourself. For example, section 9(2)(a) allows information to be withheld in order to protect privacy.

If you don't think the agency is justified in having withheld that information for that reason, or if the relevant section of the OIA doesn't seem clear on its own, you should next have a look at the list of guidance notes produced by the Ombudsman. There's probably a note directly relevant to the section that's been cited in your case, and the guidance notes can help you understand if the decision was fully justified.

Challenging the decision

If you think the information shouldn't have been withheld, or even if you're not sure (it can be hard to tell sometimes, without seeing the information) and don't trust that the agency has made the right decision, the next step is to lay a complaint to the Ombudsman.

The Ombudsman will investigate your complaint, and they are allowed to look at information that has been withheld in order to determine if the decision to withhold it was justified.

If they agree with you that the information should not have been withheld, they will make a recommendation to the agency. The agency should then take steps to make the information available to you.

In your complaint, you should outline what's happened and why you disagree with the decision.

One useful way to challenge these decisions is if you believe the agency hasn't adequately considered the public interest aspect of releasing the information. The provisions for withholding information laid out in section 9 of the OIA can be overridden if it is in the public interest for the information to be released.

It's also important to understand that section 9 only allows for information to be withheld if it's necessary for the given purpose, such as protecting privacy. If you believe it wasn't necessary for the agency to withhold that information, you can challenge the decision on those grounds.

For example, if they've withheld the author of a report but it's public knowledge who the report's author is, it was not necessary for them to withhold that information to protect the author's privacy.

You should attach a zip file to your complaint, containing all the correspondence you've had with the agency about your request. Make sure you also include any attachments that the agency sent to you.

Complaints to the Ombudsman should be emailed to info@ombudsman.parliament.nz, or you can fill out a form on their website.

Complaining to the Ombudsman is a much slower process than making an OIA request, so be prepared for it to take months to be resolved. In the meantime, you may want to think about what related information you might be able to request from the agency, or from a different agency.

If the 20 working days deadline passes and you haven't received a response from the agency, your first step should be to make sure they did receive your request. In most cases, you should expect to have received an acknowledgement email saying that your request will be processed under the OIA.

You can complain to the Ombudsman about overdue requests, but you should be aware that this is not typically likely to speed up the response. The likely outcome of a complaint about this is that the Ombudsman will tell the agency that their handling of your request was not acceptable.

Still, I think these complaints are worth making. I've found myself making complaints about enough overdue OIA requests for it to be useful to put together a template:

You should attach a zip file containing all the correspondence you've had with the agency about your request. Make sure you also include any attachments that the agency sent to you.

Complaints to the Ombudsman should be emailed to info@ombudsman.parliament.nz, or you can fill out a form on their website.