This week, the Minister of Justice announced that the Official Information Act 1982 (OIA) will be rewritten.
The announcement follows public consultation that took place in March and April 2019, where submitters were asked to comment on:
what they considered to be the key issues with the OIA,
whether those issues related to the legislation or practice, and
what reforms to the legislation they thought would make the biggest difference.
That consultation revealed frustration on the part of both requesters and those responding to OIA requests.
Requesters perceived that the process was mired in delay, that agencies made inappropriate redactions and improper use of the withholding grounds, and that there was too much political interference, particularly where requests were sent to Ministers for review prior to their release.
Agencies subject to the OIA found it difficult to deal with large and ill-defined requests, particularly given the amount of information that is now generated and stored electronically. Retrieving and reviewing that information can be burdensome, especially for smaller agencies.
The government has not yet released details about the changes that it intends to bring about in the rewrite. However, they are likely to be informed by the Law Commission's 2012 review of the OIA (The Public's Right to Know), and by the feedback provided in response to the consultation undertaken last year (including by influential parties like the Chief Ombudsman).
We consider the likely discussion areas to include:
whether the existing public interest balancing test in section 9(1) (which is not always well understood) should be recast to provide greater guidance to agencies trying to apply it,
whether there is a need for additional or different grounds for withholding information, such as in relation to the protection of commercial interests and third party information, or information obtained in regulatory investigations and inquiries,
whether there needs to be greater clarity around when agencies should notify or consult with others (including Ministers) when responding to requests,
whether the OIA should require agencies to release certain kinds of official information proactively,
whether there should be amendments to the “due particularity" requirement or the “substantial collation or research" and “frivolous or vexatious" grounds for refusal to deal with overly burdensome requests, and
whether there should be offences for wilful non-compliance, as has been suggested by the Chief Ombudsman.
The rewrite will present a good opportunity to update the OIA for the digital era and to provide welcome clarification to both requesters and agencies. The government has not announced a timeline for the rewrite process, but we will continue to monitor developments.
If you have any questions about the matters raised in this article, please get in touch with the contacts listed, or your usual Bell Gully adviser.
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.