Charge for provision of information regarding trade negotiations
Request for information on current GATS round—charge levied—GATS a matter of substantial public interest—information sought for research which would ultimately be made publicly available—release would promote informed public debate—charge found to be unreasonable—recommendation to waive charge accepted
The complainant originally wrote to the Minister for Trade Negotiations in 2003 requesting copies of documents relating to:
the implications of the General Agreement on Trade in Services (GATS) for both his portfolios and the government generally; and
the process and nature of consultations with non-government parties on the current round of GATS negotiations that had been prepared by or for the Ministry, including consultations relating to the request and offer stage of the negotiations.
The Minister replied to the requester in writing agreeing to release this information and seeking the requester’s agreement to pay a charge which had been set in accordance with the Ministry of Justice’s ‘Charging Guidelines for Official Information Act Requests 1982’ (the Guidelines).
The requester advised the Minister that she was prepared to pay the charge. However, she noted that the government had given assurances relating to the openness of the GATS negotiation process. In these circumstances and given there was no other way of discovering the information, the requester asked the Minister to reconsider the levying of the charge.
In response, the Minister advised that he was not prepared to waive the charge as the Government had already made its initial offer publicly available and also intended to make the Cabinet paper available on the Ministry of Foreign Affairs and Trade website shortly.
The Ombudsman asked the Minister for a report explaining the basis for both his decision to set the charge at the amount proposed and his later decision not to waive the charge.
The Minister confirmed that both the estimated and actual charge were calculated in accordance with the Guidelines. So too was the decision not to waive the charge. He said that, given the amount of material searched and processed, he considered the final charge made was reasonable, particularly in light of the fact that the file search took longer than originally estimated and the actual costs were approximately double the amount sought. The Minister also noted that hardship was not a factor in this case and, in responding to this request, staff had to be diverted from other work.
The Ombudsman put this to the complainant and sought her further comments. In response, the complainant advised that she did not dispute the quantity of the work required to answer the requests. Rather, she considered the background was such that any charge should be remitted in its entirety.
The Ombudsman’s investigation therefore focused solely on whether it was reasonable to levy any charge in the circumstances of this particular case, irrespective of whether the charge had been fixed in accordance with any guidelines.
Particular note was taken of the purposes of the OIA set out in section 4(a) of the OIA, namely:
(a) to increase progressively the availability of official information to the people of New Zealand in order—
(i) to enable their more effective participation in the making and administration of laws and policies; and
(ii) to promote the accountability of Ministers of the Crown and officials,—
and thereby to enhance respect for the law and to promote the good government of New Zealand:
The Ombudsman considered this section relevant to any assessment of whether it would be appropriate for the government either to bear the full cost of making the information available, or to require the requester to pay at least part of the cost.
In this particular case, the Ombudsman noted that GATS was a matter of substantial public interest in terms of New Zealand’s economic concerns. He also noted the extensive range of material freely available on New Zealand’s approach to the GATS negotiations, which the Minister said had been provided with a view to informing the public and enabling better understanding and participation in these matters.
The Minister queried whether the complainant was actually likely to use the information requested to help enhance public understanding of GATS. In response, the Ombudsman noted that the complainant was a legitimate researcher who sought access to the requested information in order to undertake her research on GATS, which would ultimately be made publicly available. Whilst declining to comment on the merits of this research, the Ombudsman did say that the complainant may present a distinctly different point of view to that advanced by the government through material disseminated by the Ministry of Foreign Affairs and Trade.
The Ombudsman did not consider it was sufficient to argue that those representing the government were of the view that all appropriate steps had been taken to allow reasonable public debate by the release of certain information. Given GATS was a matter of substantial public interest in terms of New Zealand’s economic concerns, the Ombudsman considered public understanding of this major public issue was best served by maximising the availability of information so that source material may be analysed for public discussion by a variety of parties. He said members of the public are entitled to take a contrary view to the government and the OIA envisages that individuals may access information in order to participate in debate in their own way. In this case, the complainant sought the information in order to undertake research which ultimately would be made publicly available for discussion and debate, and the Ombudsman was of the view that any charge would hinder such access.
The Ombudsman’s final opinion was that the decision to impose a charge for the provision of official information in this particular case was unreasonable and he recommended that the charge be waived. The Minister agreed to do so.
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.