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Official Information Act - TEC

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Tony Dellow

on 26 August 2014

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Transcript of Official Information Act - TEC

Official Information Act 1982 Handling requests for information Tony Dellow
OCTOBER 2012 WHAT INFORMATION CAN BE REQUESTED? HANDLING REQUESTS FOR INFORMATION PURPOSE OF THE ACT INITIAL CONSIDERATIONS For the TEC, that means:

Any information held by the TEC
Any information held by one of the TEC's agents, including its contractors

"Information" does not only mean documents. Is the clear what information (or range of information) is being requested? Assist the person to make the request clearer by seeking further details (or by asking for the request to be put in writing) NO Is the information held by the TEC? YES Is the information held by another Minister, department, or organisation? Is the request more appropriately handled by another Minister, department, or organisation? Transfer the request and advise the applicant NO YES YES Advise the applicant that you don't hold the information NO YES Are you happy to release the information requested? Release the information YES Refer to "Handling requests for information" NO NO The first step is to identify the type of request that has been made. There are five main categories of requests. 1. Request from an entity for information about itself 2. Request from an individual for information about him/herself 3. Request from an entity or individual for information concerning a decision that affects that entity or individual 4. Request from an entity or individual for policies, principles, rules, or guidelines 5. General information request 1. REQUEST FROM AN ENTITY FOR INFORMATION ABOUT ITSELF 2. REQUEST FROM AN INDIVIDUAL FOR INFORMATION ABOUT HIM/HERSELF 3. REQUEST FOR INFORMATION ABOUT A DECISION THAT AFFECTS THE APPLICANT (ENTITY OR INDIVIDUAL) 4. REQUEST FROM AN ENTITY OR INDIVIDUAL FOR POLICIES, PRINCIPLES, RULES, OR GUIDELINES 5. GENERAL INFORMATION REQUEST A request may cover more than one of these categories.
Each type of information should be treated according to which category it falls into. This category of request comes under section 24 of the OI Act: Do any of the reasons for withholding information in that category apply? Could releasing the information in a different form remove your concern about releasing any of the information? Can any of the information be released? Release the information with all necessary deletions giving reasons and advise of right to review by Ombudsman and right to request correction. Release the information Release the information in another form. Give reasons and advise of right to review by Ombudsman. Reply to the applicant giving reasons and advise of right to review by the Ombudsman. REASONS FOR WITHHOLDING - SECTION 27 of the OI ACT NO YES YES NO NO YES This category of request comes under the Privacy Act 1993. In particular, principle 6: Do any of the relevant reasons in the Privacy Act for withholding the information apply? Could releasing the information in a different form remove your concern about releasing any of the information? Can any of the information be released? Release the information with all necessary deletions giving reasons and advise of right to review by Privacy Commissioner and right to request correction. Release the information Release the information in another form. Give reasons and advise of right to review by Privacy Commissioner. Reply to the applicant giving reasons and advise of right to review by Privacy Commissioner. REASONS FOR WITHHOLDING NO NO YES YES NO YES This category of request comes under section 23 of the Act: Do any of the relevant reasons for withholding information in that category apply? Release the information NO REASONS FOR WITHHOLDING - SECTION 23 of the OI ACT Can any of the information be released? Reply to the applicant giving reasons and advise of right to review by the Ombudsman. Release the information with all necessary deletions giving reasons and advise of right to review by Ombudsman. YES NO YES This category of request comes under section 22 of the Act: Do any of the relevant reasons for withholding information in that category apply? Could releasing the information in a different form remove your concern about releasing any of the information? Can any of the information be released? Release the information with all necessary deletions giving reasons and advise of right to review by Ombudsman. Release the information Release the information in another form. Give reasons and advise of right to review by Ombudsman. Reply to the applicant giving reasons and advise of right to review by the Ombudsman. REASONS FOR WITHHOLDING - SECTION 22 of the OI ACT YES YES YES NO NO NO This category of information comes under section 12 of the Act: Do any of the relevant reasons for withholding information in that category apply? Could releasing the information in a different form remove your concern about releasing any of the information? Can any of the information be released? Release the information with all necessary deletions giving reasons and advise of right to review by Ombudsman. Release the information Release the information in another form. Give reasons and advise of right to review by Ombudsman. Reply to the applicant giving reasons and advise of right to review by the Ombudsman. REASONS FOR WITHHOLDING - SECTION 18 of the OI ACT YES YES YES NO NO NO REASONS THAT DO NOT JUSTIFY WITHHOLDING TIME LIMITS SECTION 4 increase the availability of official information to the people of New Zealand
enable more effective participation
promote accountability of Ministers and officials provide for proper access by a person to official information that relates to them
protect official information to the extent consistent with the public interest and personal privacy The purpose of the Act is to: PRINCIPLE OF AVAILABILITY Official information shall be made available unless there is a good reason to withhold it
"Good reason" means a reason set out in the Act RIGHT OF ACCESS TO PERSONAL INFORMATION Access to personal information about the requester
Only available to body corporates either incorporated in NZ or with a place of business in NZ All information held by:
A department
A Minister
An organisation. DEFINITION OF OFFICIAL INFORMATION SECTION 6(a) - (d)
Conclusive reasons Prejudice security/defence of NZ
Prejudice supply of information to the Government
Prejudice maintenance of the law
Endanger the safety of any person SECTION 7
Special reasons related to the Cook Islands, Tokelau, or Niue, or the Ross Dependency Prejudice security or defence of those governments
Prejudice relations between NZ and those governments
Prejudice international relations of those governments SECTION 9(2)(b) Necessary to protect information where disclosing it would:
disclose a trade secret
unreasonably prejudice commercial position of person who supplied information/is subject of information Unwarranted disclosure of affairs of another person
Breach express/implied promise of confidence to the supplier of evaluative information
Breach legal professional privilege
Frivolous/vexatious or trivial request PRINCIPLE 6
Access to personal information If an agency holds personal information, the individual concerned shall be entitled to have access to that information
Individual may request correction of personal information under principle 7 Prejudice security/defence of NZ
Prejudice supply of information to the Government
Prejudice maintenance of the law
Endanger the safety of any person Prejudice security or defence of governments of Cook Islands, Tokelau, Niue or the Ross Dependency
Prejudice relations between NZ and the Cook Islands, Tokelau, Niue or the Ross Dependency
Prejudice international relations of Cook Islands, Tokelau, Niue or the Ross Dependency SECTION 27 PRIVACY ACT
Security, defence, international relations SECTION 28 PRIVACY ACT
Trade secrets Necessary to withhold information to protect a trade secret
Disclosure would unreasonably prejudice commercial position of supplier/subject of information
Note that above reasons must outweigh the public interest in releasing SECTION 29 PRIVACY ACT
Other reasons Examples:
Unwarranted disclosure of the affairs of another
Breach of express/implied promise of confidence to supplier of evaluative information
Release of information would prejudice physical or mental health of requester
Contrary to interests of requester (where under 16 years old)
Prejudice safe custody or rehabilitation of the requester
Breach legal professional privilege SECTION 6(a) - (d)
Conclusive reasons Prejudice security/defence of NZ
Prejudice supply of information to the Government
Prejudice maintenance of the law
Endanger the safety of any person SECTION 9(2)(b) Necessary to protect information where disclosing it would:
disclose a trade secret
unreasonably prejudice commercial position of person who supplied information/is subject of information SECTION 7
Special reasons related to the Cook Islands, Tokelau, or Niue, or the Ross Dependency Prejudice security or defence of those governments
Prejudice relations between NZ and those governments /
Prejudice international relations of those governments Where a decision or recommendation has been made concerning a person, that person has the right to be given the following:
the findings on material issues of fact
reference to information on which those findings were based
the reasons for the decision/recommendation Available both to individuals and body corporates SECTION 23
Right of access by person to reasons for decisions affecting that person Breach of express/implied promise of confidence to supplier of evaluative information OTHER REASONS RIGHT OF ACCESS TO INTERNAL RULES AFFECTING DECISIONS Access to documents containing policies, principles, rules, or guidelines in respect of which decisions or recommendations are made
Available to any person SECTION 6(a) - (d)
Conclusive reasons Prejudice security/defence of NZ
Prejudice supply of information to the Government
Prejudice maintenance of the law
Endanger the safety of any person SECTION 7
Special reasons related to the Cook Islands, Tokelau, or Niue, or the Ross Dependency Prejudice security or defence of those governments
Prejudice relations between NZ and those governments
Prejudice international relations of those governments Protect the privacy of a person
Disclosure of a trade secret
Unreasonably prejudice commercial position of person who supplied information/is subject of information
Protect information subject to obligation of confidence
Enable a Minister, department or organisation to carry out negotiations or commercial activities without prejudice or disadvantage SECTION 9(2)(a), (b), (ba), (i), and (j) REQUESTS Any person may make a request for any specified official information
Requests must be specified with "due particularity" Prejudice security/defence of NZ
Prejudice supply of information to the Government
Prejudice maintenance of the law
Endanger the safety of any person
Damage seriously the economy of NZ SECTION 6
Conclusive reasons SECTION 7
Special reasons related to the Cook Islands, Tokelau, or Niue, or the Ross Dependency Prejudice security or defence of those governments
Prejudice relations between NZ and those governments
Prejudice international relations of those governments Protect the privacy of a person
Disclosure of a trade secret
Unreasonably prejudice commercial position of person who supplied information/is subject of information
Protect information subject to obligation of confidence
Avoid prejudice to measures protecting health or safety of the public
Avoid prejudice to substantial economic interests of NZ
Avoid prejudice to measures preventing material loss to the public SECTION 9
Other reasons Maintain certain constitutional conventions
Maintain effective conduct of public affairs (through free and frank expression of opinions or protection from improper pressure/harrassment)
Maintain legal professional privilege
Enable a Minister, department or organisation to carry out negotiations or commercial activities without prejudice or disadvantage
Prevent disclosure or use of official information for improper gain or advantage To transfer a request to another Minister, department, or organisation: 10 working days
To respond to a request:
As soon as reasonably practicable; and
No later than 20 working days Time limits may be extended if:
The request is for (or requires search through) large quantities of information
Consultations are necessary to decide how to handle the request The document is a draft
The information was provided by another person
Release of the information will be embarrassing for the TEC or the Government
Another Minister, department, or organisation has withheld the information - SECTION 24 OI ACT - PRINCIPLE 6 PRIVACY ACT - SECTION 23 OI ACT - SECTION 22 OI ACT - SECTION 12 OI ACT (SECTION 24 OI ACT) (PRINCIPLE 6 PRIVACY ACT) (SECTION 23 OI ACT) (SECTION 22 OI ACT) (SECTION 12 OI ACT) OTHER REASONS OTHER REASONS Contrary to the provisions of an enactment
Contempt of court or the House of Representatives
Information is or will soon be publicly available
Information subject to Criminal Disclosure Act 2008
Document alleged to contain information does not exist / cannot be found
Substantial collation or research involved
Information not held by the agency and no reason to believe is held by another agency
Request is frivolous or vexatious or information is trivial STRONG REASONS AND
WEAK REASONS
FOR WITHHOLDING STRONG REASONS Reasons that protect third party interests. For example:
section 9(2)(a) OI Act - protect the privacy of natural persons
section 9(2)(b) OI Act - protect information where disclosure would:
disclose a trade secret; or
unreasonably prejudice the commercial position of person who supplied / is subject of the information WEAK REASONS Release of information will promote accountability of government officials and how they do their jobs.
Section 9(2)(g) OI Act - necessary to withhold to maintain effective conduct of public affairs through:
free and frank expression of opinions by or between or to Ministers or officials Section 9(2)(f) OI Act - necessary to withhold to to maintain constitutional conventions which protect:
confidentiality of communications with the Sovereign
ministerial responsibility
political neutrality of officials
confidentiality of advice tendered to Ministers and officials For example: CHARGING FOR REQUESTS Consider whether it is appropriate to charge for the request
If so, consult Ministry of Justice guidelines MINISTRY OF JUSTICE CHARGING GUIDELINES: LINK TO RELEVANT MINISTRY OF JUSTICE WEBPAGE: http://www.justice.govt.nz/publications/global-publications/m/ministry-of-justice-charging-guidelines-for-official-information-act-1982-requests-18-march-2002 OTHER RELEVANT SECTIONS SECTION 10 Neither confirm nor deny existence of information (refers to sections 6, 7, and 9(2)(b)
To use this section effectively, TEC must adopt a policy of using section 10 in particular circumstances USEFUL LINKS Official Information Act 1982: http://legislation.govt.nz/act/public/1982/0156/latest/DLM64785.html Office of the Ombudsman: http://www.ombudsman.parliament.nz/ Office of the Privacy Commissioner: http://privacy.org.nz/
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