For much of the 20th century government employees had to be good at keeping secrets. All public servants were bound by the Official Secrets Act 1951 and could not publicly reveal anything that crossed their desks.
During the 1970s that traditional approach began to be challenged, both in New Zealand and overseas. In many countries lobby groups for ‘open government’ sprang up, encouraging debate about government plans and policies, and arguing that the public should be able to see the information behind them. The main such lobby group in New Zealand was the Coalition for Open Government. It was formed in 1979 to campaign against the then government’s ‘think big’ programme of major industrial projects. The coalition later became a major force in the development of the Official Information Act 1982.
In 1978 the government set up the Committee on Official Information. The committee was usually called the Danks Committee after its chairman, Alan Danks. It produced two reports in 1981, recommending fundamental change. Instead of presuming that all government information should be kept secret, the committee thought that the default setting in law should be in favour of openness. Information should be able to be released unless there was a good reason to withhold it. The possible reasons for withholding information should be specified in the law, and decisions to withhold information could be reviewed by the ombudsman (an independent officer of Parliament).
A request under the Official Information Act does not have to be in writing or follow any particular form. However, a request does have to be reasonably specific so that the information can be identified, and must be for information that already exists and which can be pulled together without too much collation or research.
The organisation holding the information has to answer ‘as soon as reasonably practicable’ and no later than 20 working days after receiving the request.
The committee saw the essential purpose of these reforms as being to improve communication between New Zealanders and the government. One of its reports stated:
Greater freedom of information cannot be expected to end all difference of opinion within the community, or to resolve major political issues. If applied systematically, however, with due regard for the balance between divergent interests, the changes we propose should help to narrow differences of opinion, increase the effectiveness of policies adopted, and strengthen public confidence in our system of government.1
The Official Information Act 1982, often known as the OIA, implemented most of the Danks Committee’s recommendations.
The Official Information Act 1982 includes three explicit purposes:
Section 5 sets out the basic presumption of openness, or the ‘principle of availability’. This principle means information should be made available unless there is good reason for withholding it.
One important feature of the act is that it is technology-neutral – it applies to information however it is stored or held, not just to documents. This has enabled the act to cope with the massive changes of technology and information storage since the early 1980s. Whether official information is held in an email, database or computer file, or on a piece of paper, it can be sought under the act. Even information held only in the head of a public servant is potentially accessible.
If someone requests information under the Official Information Act 1982 (OIA), the information may be withheld for a number of reasons. These include:
If a person is unhappy with the response they get (usually because information has been withheld), they can ask the ombudsman to review the decision. The ombudsman will obtain the full information from the agency and an explanation of their reasons for withholding it, before forming an independent view on whether the information can be released. If the ombudsman recommends that it should be released, this decision is legally binding.
The New Zealand OIA is unusual in international terms. It goes much further than most other freedom-of-information regimes in terms of what information is able to be requested and the limitations on the reasons for refusing to release information. In most countries, the legislation states categories of documents or information that are automatically excluded from release. Cabinet papers are often automatically excluded, as in Queensland, Australia, for example. In New Zealand cabinet papers are often released only days after cabinet has considered them.
Since 1982 there have been many other legislative reforms that have built on the principles and practice established by the OIA. They include:
There is broad agreement in New Zealand that the Official Information Act 1982 (OIA) has changed the culture of government in relation to access to information, and expectations of public participation in decision-making. Mark Prebble, former State Services Commissioner, has said, ‘My view, formed of close personal experience, is that the OIA remains effective and relevant. I believe it has been the most significant and valuable reform that has affected the public service during my career.’1
Interviewees in a research study in 2006 commented:
‘I think it’s been spectacularly successful … our system of government is far more open.’
‘It’s definitely increased accountability and transparency, no doubt about that. There is also no doubt that it has changed the way that we do things … every day there would be times when I think “Well, I’m not writing that down”.’2
Some users of the Official Information Act find it too restrictive. Researcher Nicky Hager discovered that most official information about New Zealand’s electronic intelligence agencies was not available under the act on the grounds that its release would cause ‘exceptionally grave’ damage to security and intelligence operations. However, he argued that ‘there was in fact no “exceptionally grave” damage or even much damage at all. Intelligence agencies … have certain legitimate areas where their activities need, at least for a time, to be secret. But the balance needs to be shifted much more in the direction of accountability.’3
A great deal of basic information is now made publicly available as a matter of routine. Departmental websites, for example, provide a great deal of research and background documents, statistics and surveys. Another, quite different, example of what has been achieved by the OIA is the return of examination scripts to tertiary students. Before the passing of the OIA students rarely saw their marked papers. Once the precedent had been established, the system changed so that papers were sent back to students on request.
It has been suggested that the scrutiny that the act enabled has improved the quality of advice and decision-making at all levels of government. Commentators have identified this consequence both in relation to policy advice, where the advice had to be able to withstand scrutiny by interested parties, media and academics, and in relation to lower-level administrative decision-making. Any previous looseness in those systems was quickly eliminated once those affected could see and challenge the basis on which decisions were being taken.
In 2011 New Zealand had, by international standards, a strong culture of openness in government. Any significant reform usually involved public consultation – often several times. That consultation was supported by the publication of a significant amount of information and advice. The submissions received, and their analysis, were also likely to be made public. Most official papers and advice were written on the assumption that they could be made public and needed to be able to withstand scrutiny.
Many commentators have also credited the OIA with playing a major part in ensuring the accountability of governments and public sector decision-makers. The level of openness, and the ability to access information about what decision-makers are doing and why, has given the media, opposition parties in Parliament, lobby groups and others, a powerful tool with which to question and challenge.
Committee on Official Information. Towards open government. Wellington: Government Printer, 1981.
Price, Steven. The Official Information Act 1982: a window on government or curtains drawn? Wellington: New Zealand Centre for Public Law, 2005.
White, Nicola. Free and frank: making the Official Information Act 1982 work better. Wellington: Institute of Policy Studies, 2007.