Department contracted out storage and retrieval of information—request for information refused on the basis that it was publicly available from contractor—requester referred to independent contractor—information deemed to be held by Department—s 2(5)—inappropriate to rely upon s 18(d)
This case involved the Intellectual Property Office of New Zealand (IPONZ), which had contracted with a private sector company to store and retrieve its records. The contractor was instructed to provide members of the public with access to the records unless IPONZ had indicated that certain material should be withheld in terms of the OIA. The contractor charged members of the public a fee for this service.
IPONZ relied upon section 18(d) of the OIA to refuse a request for official information, arguing that it ‘is or will soon be publicly available’. It had as a general rule adopted the practice of refusing to provide copies of records which could be obtained from the private contractor. Requesters were advised to make their requests directly to the contractor.
However, section 2(5) of the OIA provides that:
Any information held by an independent contractor engaged by any Department or Minister of the Crown or organisation in his capacity as such contractor shall, for the purposes of this Act be deemed to be held by the Department or Minister of the Crown or organisation.
Accordingly, it was inappropriate for IPONZ to rely upon section 18(d) to refuse requests.
This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. 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.