Delays by Te Puni Kōkiri in responding to requests from opposition researcher
Blanket policy to consult Minister on all OIA requests unlawful—Ministerial ‘clearance’ or ‘approval’ of agency OIA requests not permitted
An opposition researcher made a number of complaints about delays by Te Puni Kōkiri (TPK) in responding to requests for official information. During the Ombudsman’s investigation of these complaints, it became clear that the delays were in part caused by an instruction that all OIA requests received by TPK should be referred to the Minister of Maori Affairs for his ‘information and clearance’. The Chief Executive confirmed:
[T]hat this is a procedure which the Ministry has followed for several years. Initially, it was in the case of highly political or sensitive requests that were being made, but then it became the practice to forward on all responses.
The Ombudsman wrote to the Minister of Maori Affairs to explain that this practice is not contemplated by the OIA. The need for a department to consult with other parties is acknowledged by the Act (section 15(5)) in order that it may make a fully informed decision on the request. However consultations should be conducted promptly, and within the timelines set by the Act, to avoid unnecessary delays in responding to a request.
Moreover, section 15(4) of the OIA requires the final decision on the request to be made by the department unless the request is transferred in accordance with the Act. The ‘clearance’ process of the kind referred to by the Ministry did not accord with section 15(4).
A practice whereby every OIA request received by the Ministry is referred to the Minister cannot be justified in terms of the Act. It is sometimes appropriate for individual requests to be the subject of consultation with the relevant Minister, but the need for consultation should be decided on a ‘case by case’ basis, rather than pursuant to a general policy.
In response, the Minister agreed to amend the practice and advised that TPK would now only be required to inform the Minister of all requests received. He would not need to see the information in each case.
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.