Below are some questions we are frequently asked. Please contact us if you have a question - it might be one that others want answered as well.
- What is an Ombudsman?
- What does the Ombudsman do?
- When should I contact the Ombudsman?
- What is the state sector?
- What powers does the Ombudsman have?
- What can a complaint to the Ombudsman achieve?
- Can I complain by phone? Email? Facebook?
- How much does it cost to make a complaint to the Ombudsman?
- Do I have to give my name? Will I be identified? Will my complaint be make public?
- What happens in an investigation?
- How long will an Ombudsman's investigation take?
- How many complaints does the Ombudsman receive?
- Which agencies are complained about the most to the Ombudsman?
- Who makes the most complaints to the Ombudsman?
- When will the Ombudsman’s annual report for the 2011/12 year be available?
The word "Ombudsman" is Swedish and loosely translated means “grievance person”. It was first used in its modern sense in 1809 when the Swedish Parliament established the office of Justitieombudsman, who was to look after citizens’ interests in their dealings with government. New Zealand was the first country outside Scandinavia to establish an Ombudsman in 1962. You can find more explanation on the history of the Office here.
The Ombudsman handles complaints and investigates the administrative conduct of state sector agencies, including in relation to official information requests. They also carry out a range of roles that go toward protecting your rights, like monitoring places of detention, and the implementation of the UN Disabilities Convention. You will find more explanation on the different roles and functions of the Ombudsman here
You should contact the Ombudsman when you have a problem with a state sector agency that you have been unable to resolve. For problems with official information requests, you can come straight to the Ombudsman for assistance if you do not receive a response to your request or are unhappy with the response you do receive. If you are unsure about when to seek help from the Ombudsman call us on 0800 802 602 or read more about our jurisdiction here.
The Ombudsman has authority to investigate approximately 4000 entities in the state sector, including:
- government departments and ministries;
- local authorities;
- crown entities;
- state-owned enterprises;
- district health boards;
- tertiary education institutions;
- school boards of trustees; and
- Ministers of the Crown (in relation to decisions on requests for official information).
The Ombudsman process is essentially an inquisitorial one. Ombudsman investigations are normally conducted in correspondence and by face to face or telephone interviews rather than in the adversarial environment of a courtroom. The Ombudsman has strong powers of investigation, which are set out in the Ombudsman Act. Although the vast majority of complaints to the Ombudsman are resolved quickly and informally, the Ombudsman has the power to enter government premises, require information and documents to be produced on demand, summon witnesses and examine them on oath. All government organizations must co-operate with the Ombudsman’s investigations.
The Ombudsman “system of justice” is significantly different from that of the Courts and Tribunals. Ombudsman findings are not confined to strict judicial precedent. Instead, the conclusions reached, are founded on what an Ombudsman considers just and reasonable in the particular circumstances of the case.
The Ombudsman has the power to recommend solutions or remedies. These will frequently extend beyond the sort of redress that a complainant could normally expect to obtain from the court and tribunal process. For example, an Ombudsman can determine best practice standards and recommend systemic change. The remedies offered by the Ombudsman often have greater potential for “putting right” the specific maladministration that gave rise to the particular grievance in the first place. As a result, they can effect a degree of future prevention as well as retrospective cure - and this is where the underlying ethos of the Ombudsman approach (which is as much concerned with the longer-term improvement of administrative systems as it is with the resolution of individual disputes), comes to the fore. The Ombudsman is unable to enforce their recommendations. However, almost all the Ombudsman’s recommendations made over the past 50 years have been accepted and implemented by New Zealand’s state sector agencies.
Under New Zealand’s freedom of information legislation, any recommendations of the Ombudsman that are made to an agency become a public duty for the agency to observe on the 21st working day after they are made, unless the Governor-General, by order in Council, otherwise directs or the local authority, by resolution, otherwise decides.
A complaint to the Ombudsman should be put in writing. If you can’t do this yourself, call us on 0800 802 602 and we will try to help. You can make a complaint by email, fax or letter, or use our online complaints form. Your complaint should:
- set out the action, decision or conduct that you want to complain about
- provide any relevant background details
- explain the steps you’ve taken to try and resolve the matter
- include copies of your correspondence with the agency.
- explain the outcome that you’re seeking.
Please don’t lodge your complaint on our facebook page. It’s not secure. Any complaints received via facebook will be referred to our Intake and Assessment team and the complaint removed from public view. This is both to protect the individual's privacy and to comply with our statutory obligations to conduct investigations in private. If you need advice on how to make a complaint to the Ombudsman, phone us on 0800 802 602.
Making a complaint to the Ombudsman is free.
Normally, your name and other relevant information is necessary in order for the Ombudsman to address your complaint. All complaint information is kept strictly confidential. Investigations are required to be conducted in private. The Ombudsman does not identify anyone without their consent. This includes when the Ombudsman publishes their opinions.
After the issue is assessed and the decision is made to investigate, the Ombudsman then notifies the relevant state sector agency of the investigation. Investigators may then assist the Ombudsman by gathering the evidence upon which the Ombudsman bases their opinion and recommendations. The adversely affected party will be given the opportunity to respond or provide further comment before the Ombudsman’s opinion (and any recommendations) become final.
The Ombudsman aims to complete:
- 90% of all matters outside jurisdiction within one month of receipt.
- 90% of all matters that we decline to investigate or resolve informally within three months of receipt.
- 90% of all urgent investigations within four months of receipt.
- 70% of all other investigations within either six months, or 12 months, depending on the level of public interest in the matter.
Here's how we performed in 2011/12.
For Ombudsmen Act complaints we completed:
- 49% of complaints outside jurisdiction within one month of receipt.
- 86% of complaints that we declined to investigate or resolved informally within three months of receipt.
- 93% of all urgent investigations within four months of receipt.
- 100% of all non-urgent but high public interest investigations within six months of receipt.
- 77% of all other investigations within 12 months of receipt.
For OIA complaints we completed:
- 57% of complaints outside jurisdiction within one month of receipt.
- 82% of complaints that we declined to investigate or resolved informally within three months of receipt.
- 92% of all urgent investigations within four months of receipt.
- 44% of all non-urgent but high public interest investigations within six months of receipt.
- 84% of all other investigations within 12 months of receipt.
For LGOIMA complaints we completed:
- 70% of complaints outside jurisdiction within one month of receipt.
- 88% of complaints that we declined to investigate or resolved informally within three months of receipt.
- 100% of all urgent investigations within four months of receipt.
- 57% of all non-urgent but high public interest investigations within six months of receipt.
- 89% of all other investigations within 12 months of receipt.
More information about the Ombudsman's targets and the results in 2011/12 can be found in the Ombudsman's annual report.
The Ombudsman received 10,636 complaints and other contacts in 2011/12, an increase of 22% on last year's numbers.
In 2011/12, 58% of Ombudsmen Act complaints were made against central government departments. The agencies generating significant numbers of complaints tend to be ones that interact with and impact upon large numbers of New Zealanders. In 2011/12, these agencies were the Department of Corrections, the Earthquake Commission, the Ministry of Social Development, the Department of Labour (Immigration New Zealand), the Accident Compensation Corporation, and Inland Revenue Department.
In addition, 25% of official information complaints were made against government departments; 18% were made against local authorities and other agencies subject to the LGOIMA; 12% were made against Ministers of the Crown; and 45% were made against other state sector agencies. In 2011/12 the Ombudsman received the most official information complaints about various schools Boards of Trustees, the New Zealand Police, the Earthquake Commission, the Accident Compensation Commission and the Department of Corrections.
The Ombudsmen Act (OA) is overwhelmingly used by individual members of the public, even though corporate entities are equally entitled to do so. This reflects the intent of the legislation, which is to provide recourse for people personally affected by the administrative acts and decisions of state sector agencies. In 2011/12, 97% of OA complaints came from individual members of the public. 34% were from prisoners or prisoner advocates (not all against the Department of Corrections), and 63% were from other members of the public. Only 3% of OA complaints were made by corporate entities and special interest groups.
Individuals also accounted for well over half of all OIA complaints (65%), and three-quarters of all LGOIMA complaints (76%). The next highest users were the media, who made 16% of all OIA complaints, and 15% of all LGOIMA complaints. In 2011/12, MPs and political party research units accounted for a smaller proportion of OIA complaints received (7%).
- I can't meet the extended deadline for response. Can I extend again?
- Can I still transfer a request for official information if I'm outside the 10 working days specified in section 14 of the OIA (section 12 LGOIMA)?
- I’ve received a request by email outside business hours. When does the working day count start?
- Do I have to make the decision on a request and release the information at the same time?
- I'm in the process of consulting the requester. How does this affect the timeframe requirements?
- The requester has asked for an urgent response. How does this affect the timeframe requirements?
- I’ve received a request from fyi.org.nz. How do I know the requester is eligible?
Yes, there’s nothing in the Act that says you can’t extend more than once. However, any extension must be made within the original 20 working day period of receiving the request. This is because of section 15A(3) of the OIA (section 14(3) of the LGOIMA) which says “the extension shall be effected by giving or posting notice of the extension to the person who made the request within 20 working days after the day on which the request is received”.
Having said that, multiple extensions are likely to irritate requesters, and may create an impression that the agency doesn’t really know what it’s doing. Remember that the extension is for the maximum time frame within which you expect to be able to respond. It may be better to extend once, for a realistic period of time, and indicate that the agency will endeavour to respond to the request sooner if possible.
If it’s looking like you won’t make an extended deadline, consider contacting the requester by phone or email to let them know the current state of play and reasons for the hold-up. Requesters will appreciate being kept informed, and may be more understanding if the agency ends up in breach of the timeframe requirements. Also consider whether it’s possible to make a staged reply. If most of a response is straightforward and ready to go, there is often no need to hold that up in order to deal with a few remaining issues.
Can I still transfer a request for official information if I’m outside the 10 working days specified in section 14 (section 12 LGOIMA)?
Under the official information legislation, transfers of requests must be made “promptly, and in no case later than 10 working days after the day on which the request is received”.
The legislation is pretty clear – the need to transfer a request is something the agency should be looking to identify and action as early as possible. If you transfer a request outside the 10 working day period, this could potentially be the subject of an Ombudsmen Act complaint, and the likely finding would be that you have acted “contrary to law”.
However, that doesn’t mean the transfer will be invalid. Even if it is made out of time, it will still have the desired effect of shifting the responsibility for reaching a decision on the request to the most appropriate agency. That is, after all, what the transfer provision is about – ensuring that the agency that holds the information, or that is best placed to know whether there are valid concerns about disclosure, ends up deciding on the request.
If you identify the need to transfer a request in whole or part outside the 10 working days, consider contacting the requester by phone or email to explain the reason for the delay and the need for the transfer. Requesters will appreciate being kept informed, and may be more understanding if the agency ends up in breach of the timeframe requirements.
The 20 working day count always starts the day after a request is received. “Working day” means any day of the week excluding weekends, specified holidays, and the period between 25 December and 15 January. The Act doesn’t say anything about a working day being 9am-5pm. Requests by post will only be received during normal business hours, but requests by email can be received at any time.
The Electronic Transactions Act 2002 tells us when an email request is taken to have been received:
11 Time of receipt
An electronic communication is taken to be received,—
(a) in the case of an addressee who has designated an information system for the purpose of receiving electronic communications, at the time the electronic communication enters that information system; or
(b) in any other case, at the time the electronic communication comes to the attention of the addressee.
In most cases then, an email is received at the time it enters the designated information system – whether or not that’s outside business hours. So when an email request is received outside business hours, as long as it is received before midnight then it is to be treated as having been received on that day, and the working day count will start the next day e.g:
- An email request is received at 5.01pm on Monday – the working day count starts on Tuesday.
- An email request is received at 12.01am on Tuesday – the working day count starts on Wednesday.
- An email request is received at 7.30pm on Friday – the working day count starts the following Monday.
Use the response calculator on our home page to help you calculate working day counts.
No. Your legal obligations are to:
- make and communicate the decision on a request for official information as soon as reasonably practicable and within 20 working days (see section 15(1) OIA and section 14(1) LGOIMA); and
- release any official information requested without “undue delay” (see section 28(5) OIA and section 27(5) LGOIMA).
Often these steps are done in conjunction, but there’s no requirement for that to be the case. Doing them separately can be a helpful way of managing large requests.
For instance, an agency may know that it intends to grant a request subject to some redactions under section 9(2)(a), but the process of preparing the material for release will take a bit longer. The agency can advise the requester of its decision on the request within the original 20 working days, and give an indication of when it will be in a position to release the information requested. The agency’s decision must still comply with section 19 of the OIA (section 18 of the LGOIMA). But so long as there’s no “undue” delay in releasing the information, there will be no breach of the legislation.
This really depends on the purpose and outcome of the consultation.
Purpose of the consultation: due particularity
Section 12 of the OIA (section 10 of LGOIMA) says that “the official information requested shall be specified with due particularity in the request”. If the purpose of the consultation is because the requester hasn’t specified the information requested with “due particularity”, then a valid request hasn’t yet been received, and the timeframe requirements will not apply. Remember, all “due particularity” means is that the requested information must be able to be identified by a reasonably experienced officer of the agency. It’s not a reason for declining a request for lots of information, if that information can reasonably be identified.
Purpose of the consultation: broad requests / information doesn’t exist or can’t be found
Section 18B of the OIA (section 17B LGOIMA) imposes a duty on agencies to consider consulting a requester if the request is likely to be refused on the grounds of substantial collation or research, or because the information doesn’t exist or can’t be found. If that’s the purpose of your consultation with the requester, then it doesn’t alter the fact that a valid request has been received, and the agency is obliged to make and communicate its decision on that request within 20 working days. The working day count will continue notwithstanding any delay caused by consulting the requester. Agencies should be aware of this, and if the 20 working day mark is approaching, consideration should be given to either:
- extending the timeframe for response because of consultation required; or
- communicating a decision on the request as it was originally made.
If the consultation hasn’t yet resulted in a workable refinement or clarification of the original request, then the likely decision will be a refusal on the relevant grounds (section 18(e) or (f) of the OIA; section 17(e) or (f) of the LGOIMA). Agencies can still refer to the fact that consultation with the requester is ongoing, and note that the purpose of the consultation is to assist the requester to make the request in a form that would remove the reason for refusal.
Outcome of the consultation
The outcome of the consultation can also affect the timeframe requirements.
Consultation may result in a refinement of the original request – meaning the request is for a subset of the information originally requested. In that case, the original working day count will still apply, and if that’s fast approaching, agencies will need to consider extending.
Consultation may also result in a new request – i.e. the information requested is substantially or materially different to that which was specified in the original request. If consultation results in a new request, the working day count will start afresh the day after that request was received.
Section 12(3) of the OIA (section 10(3) of LGOIMA) states “if the person making the request asks that his request be treated as urgent, he shall give his reasons for seeking the information urgently”. This means that urgent requests can be made, and if they are, the requester must give their reasons for seeking urgency.
Notwithstanding a request for urgency, the agency’s legal obligations remain the same:
- to make and communicate the decision on a request for official information as soon as reasonably practicable and within 20 working days (see section 15(1) OIA and section 14(1) LGOIMA); and
- to release any official information requested without “undue delay” (see section 28(5) OIA and section 27(5) LGOIMA).
However, agencies must still provide a reasonable response to a request for urgency. An unreasonable response may be the subject of an Ombudsmen Act complaint.
Providing a reasonable response to a request for urgency may involve:
- Assessing the requester’s reasons for seeking urgency (do they merit the request being accorded priority over other work, including other official information requests?)
- Deciding whether to accord urgency to the request.
- Advising the requester of this decision, and (if applicable) providing an indicative timeframe for response.
Agencies could consider discussing the urgent request with the requester. This may enable:
- Agencies to clarify the competing priorities that would need to be sidelined in order to accord urgency to the request.
- Requesters to clarify the reasons for urgency, in light of these competing priorities.
- Requesters to clarify the intended scope of their request, or to prioritise particular information, allowing certain information to be made available sooner rather than later.
Note that the legislation makes it clear that charges may be imposed to cover the costs incurred pursuant to a request to make information available urgently (section 15(2) OIA; section 13(3) LGOIMA).
Agencies may receive requests via a website called fyi.org.nz. There’s no reason why official information requests cannot be made in this way, but one question agencies have asked is how to know whether a requester is eligible.
Eligibility is an issue that only arises under the OIA, because section 12(1) provides that requests can only be made by New Zealand citizens, permanent residents, people in New Zealand, and bodies corporate that are incorporated or have a place of business in New Zealand. The same restrictions don’t apply under the LGOIMA.
Agencies are entitled to make reasonable enquiries to satisfy themselves that a person is eligible to make a request under the OIA. This can be complicated in the context of a request via fyi.org.nz because all your communications with the requester will be published online, and a requester may not want to reveal those kinds of details publicly.
Agencies that want to query eligibility should do so promptly so they don’t unnecessarily delay the proper processing of a valid request. The best way to do this may be to reply to the requester (preferably at the same time as the request is acknowledged), explaining the eligibility requirements, and providing the name and contact details of a staff member the requester can contact privately in order to provide the assurance required regarding eligibility.
Alternatively, the agency may decide it doesn’t really matter whether the requester is eligible or not, because they’d be perfectly happy to supply the information to any person regardless of eligibility.
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