Request for detailed analyses of raw census data—request refused on ground that specific analyses requested were not ‘held’ by agency—distinction between ‘holding’ information and being able to ‘create’ information
A company specialising in information research and analysis made requests for information relating to the 1991 and 1996 Censuses through the Statistics New Zealand Bureau Service and had been advised that the cost of purchasing the information would be in the order of $100,000. The company believed the cost was exorbitant and wrote to Statistics New Zealand asking the agency to reconsider the request specifically under the OIA. The company noted that under the Cabinet guidelines on charging under that Act it considered a charge of $1,000 would be reasonable.
Statistics New Zealand responded to the request under the OIA as follows. First, it noted that the information requested comprised ‘extremely detailed and user-specific analyses’. Secondly, it advised that the information in the precise form requested had not been produced and therefore ‘did not exist’. Consequently, the agency concluded that the request could be properly refused under section 18(e) of the OIA (on the ground that the specific information requested did not exist) and section 18(f) of the OIA (on the ground that the information requested could not be made available without substantial collation and research).
However, the agency advised that the information could be created from the raw data it held in its database. In this regard, it commented that ‘regardless of whether it might already exist in whole or in part or would need to be programmed specifically, the price for that provision of analyses would be set according to Statistics New Zealand’s charging policy and practices’. It added that ‘it has long been the practice that the commercial-type information access services provided by Statistics New Zealand operate under Statistics New Zealand charging policies and practices, rather than [the OIA] regime’.
After preliminary inquiries to clarify the exact nature of the information requested and the rationale on which the agency’s charging policy is based, it became clear that the key issue under the OIA was whether the particular information requested was ‘held’ by Statistics New Zealand for the purposes of the OIA.
If the information requested is ‘held’, then the reasonableness of the charge for its supply must be considered under the OIA itself. In this context, the Cabinet guidelines on charging for the supply of information under the OIA would be relevant.
However, if the information requested is not ‘held’ (even though the agency is willing to create it for a fee) then the Cabinet guidelines on charging for official information would not apply.
In considering the key issue of whether the specific information requested is ‘held’ by the agency, comments were sought from both the Government Statistician and an independent information technology specialist. The Government Statistician advised that the specific information at issue comprised a set of aggregated statistical measures that can be derived from census data in response to a particular request and released. It was not the raw census data. What the Department holds is raw census data, which cannot be released because of the confidentiality requirements of the Statistics Act which prohibits release of such raw data. The Government Statistician asserted that the Department did not ‘hold’ the specific information requested because it would not exist until it had been produced by transforming raw census data. The independent information technology specialist took the same view. He noted as follows:
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the agency collects and enters statistical data from individuals and individual household forms filled out on census night;
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since the agency is not able to accurately predict the nature of the requests for information to which it would need to respond, it has little choice but to ‘hold’ census data in its most basic form in its computer databases;
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the Statistics Act prohibits release of information in a form that identifies individuals, therefore whenever information derived from census data is released, it is aggregated into ‘mesh blocks’ (groups of sufficient size to conceal identity);
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such aggregation requires the raw data held to be processed into a different format regardless of whether the information is released in hard copy or machine readable form; and
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in the case at hand, the requester had asked for information to be processed and aggregated and for additional information to be created.
Following consideration of the circumstances of the particular case and the comments provided, it was noted that there is a crucial distinction, for the purposes of the OIA, between holding information at the time a request is received and being able to ‘create’ information in response to a request. In relation to the circumstances of this case, the specific analyses requested needed to be created from the raw census data held. Until those analyses were so created, they could not be said to be ‘held’ for the purposes of the OIA.
In these circumstances, section 18(g) provided good reason for refusal on the basis that ‘the information requested is not held by the agency’ and the agency had no grounds for believing that the information would be held by (or connected more closely with the functions of) another agency subject to the OIA.
As a consequence, the issue of whether the charge fixed by the agency for creating the specific information requested was reasonable did not fall to be considered under the OIA. However, it was noted that the decision to fix a certain charge did appear to ‘relate to a matter of administration’ affecting the requester in a personal capacity. Therefore, a complaint that the charge fixed was unreasonable could have been considered under the Ombudsmen Act 1975. The requester did not pursue the complaint under the Ombudsmen Act.
This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.