Requests for official information made to Health New Zealand (HNZ) – failures by HNZ to make and communicate decisions on requests within statutory timeframe under the Official Information Act 1982 (OIA) – HNZ claimed to have made decisions within the legislated timeframes – Chief Ombudsman did not agree – HNZ accepted that it had failed in its responsibilities under the OIA – committed to reviewing its practices and providing staff with additional OIA learning – Chief Ombudsman formed the opinion that HNZ’s failures were contrary to law under section 15(1) of the OIA.
Background
The Chief Ombudsman received ten complaints from requesters about decisions by HNZ on their requests for information under the Official Information Act (OIA). The requests were made between April 2023 and January 2024.
In all ten cases, HNZ extended the original timeframe to respond to the request for the purpose of consultation. At the end of the extended timeframe, HNZ told the requesters that a decision had been made on their request, but that more time was needed to make the information available for release.
The requesters individually complained to the Ombudsman about the delays in providing the requested information within the legislated timeframe.
The Ombudsman investigated the 10 cases together because the grounds for their complaints were essentially identical.
Investigation
The OIA requires an agency to:
- make a decision and communicate it to the requester ‘as soon as reasonably practicable’ and no later than 20 working days after the request is received; [1] and
- release any official information without ‘undue delay’. [2]
Before making a valid decision on a request, the Chief Ombudsman would expect agencies to assess each piece of information that is captured within the scope of a request.
This reflects the High Court’s decision in Kelsey v Minister of Trade [2015] NZHC at [108], which found that it is a:
"… fundamental point that the [OIA] required the Minister to assess each piece of information requested…that was held by the Minister…against the criteria in the [OIA] for withholding official information before that request could be refused."
To constitute a valid decision under the OIA, an agency must clearly demonstrate that it has reviewed all of the information at issue, considered the contents, and shown it has determined that the information should be withheld or released in part or in full and for what reason.
In all 10 cases, HNZ extended the original timeframe to respond to the requesters so it could undertake consultation. HNZ said consultation was necessary to make a decision on the requests.
At the end of the extended timeframe, a frequent phrase used in HNZ’s correspondence with the requesters was along the lines that a decision had been made on the request, but that more time was needed for consultation. However, the fact that consultation was ongoing indicated that work was still being done on the requests and therefore a valid decision could not yet have been made and communicated to the requester.
While some of HNZ’s responses did not specifically reference needing further time to consult, it would appear from the extensions sought earlier that this was the reason why a full and complete decision could not be given at the time.
The Ombudsman formed a provisional opinion that HNZ had not made valid decisions in relation to the requests in accordance with section 15(1) of the OIA. This was on the basis that HNZ hadn’t told the requesters what it had considered in making its decision whether their request would be granted or refused. All it did was note that a decision had been made.
Despite HNZ’s indication that decisions had been made on these requests within either the statutory timeframe or an extended one, the Ombudsman considered HNZ had failed to make and communicate a valid decision within the statutory time frame.
The Ombudsman was very concerned that HNZ appeared to have formed a practice of telling requesters it had made a decision (without saying what the decision was) within an already extended timeframe. HNZ then compounded the issue by adding that it then needed to undertake consultation, to give itself more time to complete the additional work required to provide a full response.
In doing so, the Ombudsman considered HNZ had breached the timeliness obligations of the OIA within which to make and communicate a decision, and had created a process for itself that was inherently contrary to law.
The Act is clear and the Ombudsman’s guidance material confirms [3] that although information may be released after a decision on the request is made when time is needed to prepare it for release, the information must have already been reviewed and a decision made on whether or not to release within the maximum statutory timeframe. There should also be no undue delay in releasing the information after the decision is made. In most cases, the information should be able to be released on the same day as the decision is made.
HNZ’s response to the Ombudsman’s provisional opinion
HNZ acknowledged that it had fallen short of its responsibilities under the OIA and it had taken an unacceptably long time to respond fully to requests. Where this happened, HNZ apologised to the requester.
HNZ advised the Ombudsman that work was underway to review its current OIA practices including those around extensions and decisions on requests. HNZ also accepted the Ombudsman’s observations around communicating decisions and committed to ensuring that responses to Official Information requests are clear as to what specifically the requesters will receive and what, if anything will be refused.
Outcome
The Chief Ombudsman formed the opinion that HNZ’s failure to make and communicate a decision on all 10 requests within the statutory or extended timeframe failed to meet the requirements imposed by the OIA, was a breach of section 15(1) of the OIA and contrary to law.
This was on the basis that:
- all necessary steps to make a valid decision under the OIA, including compiling and reviewing all of the information at issue, considering grounds for refusal under the OIA and completing all necessary consultations, had not been completed at the time a ‘decision’ was communicated.
- Therefore there had not been a valid decision for the purposes of meeting the timeframe obligations in section 15 of the OIA.
The Chief Ombudsman recommended that HNZ:
- apologise to requesters; and
- proceed with its proposed improvements and review outlined in its response to the Ombudsman’s provisional opinion.
The Ombudsman also noted HNZ’s acceptance of the observations set out in the provisional opinion, in particular its commitment to a review of its current OIA practices, and the fact it had taken action to lift its performance to meet its obligations under the OIA. These actions included:
- weekly refreshers on the OIA legislation with the OIA team;
- making it mandatory for all OIA advisers to complete the Ombudsman’s new online OIA learning modules; [4]
- committing to ensure responses to requesters are clear about what will be released or refused; and
- the introduction of regular quality assurance tests across the OIA caseload to identify issues and any further training that may be required.
HNZ accepted the Ombudsman’s opinion and accepted his recommendations.
Further update following the Ombudsman’s opinion
While HNZ has implemented a number of changes, its priority has been to respond to OIA requests within legislative timeframes. The main areas of focus have been:
- Extensions and decisions;
- Refusals; and
- Ongoing training for staff.
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.
Footnotes
- Section 15(1) of the OIA refers. Return to text
- Section 28(5) of the OIA refers. Return to text
- See the Ombudsman’s guide: The OIA for Ministers and agencies . Return to text
- Access the Ombudsman’s new learning OIA modules through Te Puna Mātauranga . Return to text
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