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Public Law > Open Information Act > Flashcards

Open Information Act Flashcards

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1
Q

What is the key act concerning open government?

A

Official Information Act 1982

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2
Q

What did the Official Information Act 1982 replace?

A

Official Secrets Act 1951

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3
Q

Why was the Official Secrets Act 1951 replaced with the Official Information Act 1982?

A

We now recognise the importance of freedom of information and open government

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4
Q

Is official information just documents?

A

No, official information can include other forms of information.

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5
Q

What is information held in “official capacity”?

A

Information held by everyone who has something to do with the government apart from courts, tribunals and royal commissions.
- includes police

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6
Q

What are the purposes of the OIA 1982?

A

Section 4:
1. to increase progressively the availability of official information to the people of New Zealand to enable effective participation in laws making/administration and policies. And to promote the accountability of Ministers of the Crown and officials.

  1. provide proper access by a person to official information relating to that person:
  2. to protect official information (to the extent consistent with the public interest and the preservation of personal privacy).
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7
Q

What is the s 5 Principle of availability? IMPORTANT

A

Information shall be made available unless there is good reason for withholding it.
Unless the OIA specifically says otherwise, OI should be made available unless good reason not to.

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8
Q

Why do we want people to be able to request access to information?

A
  • Promote accountability of government
  • Principle of availability
  • Want people to participate effectively in govt
  • Enhance respect for the law
  • People able to access PI about themselves
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9
Q

Do we have an absolute open government?

A

No, there will be some situations where we are not open about information

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10
Q

Who can make a request under the OIA?

A

Any person can make a request (includes body corporates) who is a citizen, permanent resident, or in NZ (s 12).

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11
Q

How many days does an organisation get to respond to a request under the OIA?

A

20 working days

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12
Q

What must the organisation facing a request under the OIA do in 20 days from the request?

A

Grant information, refuse information or get an extension under s 15A.

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13
Q

When may an organisation charge for supplying the information?

A
  • When reasonable
  • Charge related to an actual cost (labour, materials)
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14
Q

What form should the information be provided in?

A

s 16, in the form preferred by the requestor

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15
Q

May there be redactions to the information provided?

A

Yes, s 17.

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16
Q

What form dose information take?

A

Can come in many different forms.

17
Q

Approximately how many requests under the OIA happen per annum?

A

Around 80,000 requests p/a

18
Q

When can an organisation refuse to provide information? section 18.

A

May ONLY refuse if Section 6 (conclusive), 7, 9 (other reasons), or 10 (neither confirm nor deny) applies.

  • disclosure would breach an Act, or be in contempt of the House
  • the information requested will soon be publicly available
  • the document does not exist
  • fulfilment would require substantial collation and research
  • the request is frivolous or vexatious, or the information requested trivial
19
Q

Does the organisation have to give reasoning for refusal of an OIA request?

A

Yes, s 19: Reasons for refusal and grounds supporting those reasons must also be given (the latter if requested)

20
Q

Who can investigate refusals?

A
  • Ombudsman can investigate and review refusals (s 28)
  • Judicial Review - OIC is judicially reviewable, s 32B
21
Q

What powers do the ombudsmen have in investigating refusals under the OIA?

A
  • Ombudsman can report to the relevant department / organisation / Minister and make recommendations (s 30)
  • If the Prime Minister certifies that disclosure of the information is likely to prejudice security or defence, the Ombudsman cannot recommend its release (s 31)
  • Public duties to observe the Ombudsman’s recommendations arise after 21 working days (s 32), unless the GG otherwise directs
22
Q

Kelsey v Minister of Trade [2015] NZHC 2497

A

Facts:
- Kelsey is a lecturer at Aukland University
- Upset about trans tasman partnership agreement (TTPA) and was protesting against it
- Sought information associated with negotiation of the TPPA
- Minister refused under ss 6(a), 6(e)(vi), 9(2)(j) and 18(f) (substantial collation and research)
- Kelsey requested reasons and grounds relied on

She went to Ombudsmen
- Mixed response

Judicial Review:
- Some information had already been released in NZ in redacted form, or by other countries in the TPPA negotiations
- To engage s 6, the Minister had to show good reasons
- Minister’s obligation is to consider each piece of information requested and release those which cannot be lawfully withheld … even if that involves substantial effort
- “blanket approach” was unlawful

23
Q

What type of reasons are under s 6?

A

Conclusive reasons for withholding official information
- These are all substantive reasons with social importance, things most of us would agree are important

24
Q

What reasons are under s 6?

A
  • Likely to prejudice security / defence / international relations of NZ govt
  • Prejudice the entrusting of information in confidence
  • Prevent the law from functioning
  • Endanger safety
  • Seriously damaging the economy of NZ
25
Q

What does likely mean?

A

Kelsey: likely means a real or significant possibility

26
Q

What kind of reasons are under s 9?

A

Other reasons for withholding official information.

27
Q

What are the reasons under s 9?

A

Must:
- protect people’s privacy
- protect info that could disclose a trade secret of prejudice commercial positions of those supplying

28
Q

If info can be withheld under both ss 6 and 9, which section will it be put under?

A

Section 6.

29
Q

What commens have been made about s 9(2)?

A
  1. Kelsey on s 9(2): “a decision-maker would have to be satisfied withholding the information requested is “essential” to protect or avoid the consequences enumerated in s 9(2)(a)-(k) of the Act.”
  2. S 9(2): Ombudsman prefers “reasonably necessary” (Television New Zealand Ltd v Ombudsman [1992] 1 NZLR 106)

Can use either!!!

30
Q

What is an NZ Agency?

A

Individuals, agencies whether public or private.
Excludes sovereign, GG, HoR, MPs, courts, Ombudsman, news media.

Public Law (12 decks)

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