Council’s decision to charge for supply of official information

Decision to charge $836.00 for supply of information relating to Policy NFL-P5 of the Proposed District Plan – unreasonable charge – Council accepted recommendation to reconsider its decision and engage with the requester to consider ways to refine request

Background

1. The requester made a request to the Central Hawke’s Bay District Council (the Council) for information relating to Policy NFL-P5 (the Policy) of the Proposed District Plan (the Plan) to ascertain the origins of the Policy and how it came into the Plan.
2. The Council advised the requester of its decision to extend the timeframe to make a decision on the request as it ‘necessitates a search through a large quantity of information and meeting the original time limit is unreasonably interfering with [its] operations’.
3. In addition, the Council advised that it would charge the requester a maximum of $836.00, being its best estimate of time required to search for and supply the information.  The Council considered the charge reasonable given its significant resource constraints. The Council also requested a 50 percent deposit before it proceeded further with the request.
4. The requester objected to the charge on the basis that the information is in the public interest and there is a strong case for transparency and accountability in determining how the policy came to be in the Plan. The requester and the Council continued to communicate, with the requester proposing alternative ways to get the information including a meeting with the Council’s policy staff and subsequently writing to the Mayor. The Council engaged with the requester through emails and phone calls and Mayor responded to the requester’s query but the requester was not satisfied with the response.  Council staff declined to meet the requester on the basis that it was not anticipated such a meeting would remove or substantially reduce the work required to respond.

Investigation

5. Section 13(3) of the LGOIMA provides that any charge fixed for the supply of official information must be reasonable and ‘regard may be had to the cost of the labour and materials involved in making the information available.’
6. The Ombudsman considered that the Council had not ‘properly and actively’ engaged with the requester in an attempt to reduce or remove the need to charge. The Ombudsman explained that effective engagement with the requester was not so much about the frequency of communication, but the quality and substance of the exchanges. It was considered that this had not been done adequately in this case.
7. While the Ombudsman acknowledged the Council’s small team and resourcing pressures, it was noted that for these exact reasons, it would have been prudent for the Council to have engaged effectively with the requester. The Ombudsman’s view was that doing this at the outset, would have minimised any ambiguities with the request and could have, in turn, reduced pressure on the Council’s resources.
8. In terms of the Council’s actual calculation of the charge, the Council estimated that responding to the request would take a maximum of approximately 12 hours and gave the requester a breakdown of the tasks involved. Each task was estimated to take two to three hours. The Ombudsman considered the Council’s comments that reasonableness of the estimate should be seen in light of the resourcing pressures experienced by the local authority. However, the Ombudsman was not satisfied with how the charge was calculated based on the description provided. The Council had not satisfactorily explained how some of the tasks, such as keyword searches, would take as long as two to three hours each and why transcribing audio recordings was necessary to meet the request. The Ombudsman considered that in the absence of a sampling exercise, it was unclear how the Council could have established the time taken to complete each task.
9. The Ombudsman also observed that the Council communicated an extension of the timeframe for making a decision on the request, at the same time as advising the requester of the proposed charge for releasing the information. In effect, this meant that the Council had not actually completed a review of the information before deciding to release it. The Ombudsman considered that while the Council was not obliged to collate and review all the relevant information before deciding to charge for its release, at a minimum, it was expected to scope enough to get a sense of how much information might be available under the LGOIMA.
10. The Ombudsman observed that the request related to the proposed district plan which dealt with a wide range of significant issues for the district in which the public had the opportunity to engage through the submissions process.  The Council considered that the public interest was better served by following the statutory process, rather than through requests for information.  Ombudsman noted it appeared letting the process play out through the statutory hearing process is appropriate. 

Outcome

11. In all the circumstances, the Ombudsman formed the opinion that the Council’s decision to charge the requester was unreasonable.
12. The Ombudsman recommended that the Council reconsider its decision on the request and work with the requester to refine the request, or consider whether there were other ways to meet the request in a way that would reduce or remove the need to charge.
13. The Council accepted the Ombudsman’s final opinion and agreed to reconsider its decision on the request and engage with the requester to refine the request. 

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.