Request by Parliamentary Research Unit to Minister of Revenue—convention for requests to be made to appropriate Minister and not to charge for supply of information—information held by Inland Revenue Department—request not transferred by Minister but responded to by Department— ss 13, 14, 15, 18(f).
A researcher with a Parliamentary Research Unit requested from the Minister of Revenue:
All reports, letters and briefing papers prepared by your officials and other organisations concerning the implementation of the Compliance and Penalties regime, which came into effect in 1997, including instructions from the Commissioner of the Inland Revenue Department to Inland Revenue employees regarding the implementation of the regime.
The information at issue was held by the Inland Revenue Department rather than the Minister. Following a discussion between departmental officials and the requester as to the scope of the request, in terms of section 13 of the OIA, the Department advised that, in terms of section 15 of the OIA, the estimated charge for providing the information was $1,500.00.
The requester sought a review of the proposed charge, noting that in its report Review of the Official Information Act the Law Commission ‘[did] not support any change to the practice of not charging for requests by members of Parliament and parliamentary research units’. The requester said he had made it clear to the Department that he had made the request on behalf of a Member of Parliament.
Upon receipt of the original request, the Minister had referred the matter to the Department for report. In reporting to the Minister the Department had noted that, as he did not hold the information at issue, section 14 of the OIA required that he transfer the information to the Commissioner of Inland Revenue. Although there was no evidence that the Minister had transferred the request to the Department in terms of section 14, the Department had treated the request as if it had been transferred. In its report to the Minister it had referred to section 15(4) of the OIA, noting that it was for the Department to make the final decision on the request. It had also referred to the provision for consultation with the Minister in section 15(5). However, as there had in fact been no transfer in terms of section 14, the decision on the request was deemed to have been taken by the Minister.
Following notification of the complaint, the Minister referred the matter back to the Department. After reconsidering its decision to charge the requester, the Department modified its policy on charging. In future official information in response to requests from the parliamentary system (Members of Parliament and Parliamentary Research Units) would, in principle, be supplied free of charge. However, it noted that where a request from the parliamentary system required substantial collation or research, the Commissioner might determine to withhold the information in terms of section 18(f) of the OIA.
In the case under review, the information requested by the researcher was released without charge thereby resolving the complaint.
Comment
This review identified a number of administrative matters which holders of official information need to address when considering requests from Members of Parliament and parliamentary research units.
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If a Minister, to whom a request is addressed, does not hold the information at issue, the request should be transferred in terms of section 14.
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Where a request is transferred by a Minister to a Department, the responsibility for making the decision on the requests rests with the Department.
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The Department may consult with the Minister about the request, but, notwithstanding any views expressed by the Minister, the Department must make its decision having regard to the requirements of the legislation.
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A convention has developed for official information supplied by Ministers in response to requests from within the parliamentary system to be supplied free of charge.
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The Department of Justice’s January 1992 charging guidelines (which remain in force) provide in paragraph 7.4 a discretion to exempt Members of Parliament from charges for official information. Departments and organisations therefore need to consider this discretion when dealing with requests from within the parliamentary system. At the same time Departments and organisations should have regard to the comments in paragraph 148 of the Law Commission’s report, Review of the Official Information Act.
This case note is published under the authority of the Ombudsmen Rules 1989. 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.
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