Request for names of people who wrote to the Minister of Local Government in support of the extension of Tauranga City Council Commissioners’ terms

Request refused because the document alleged to contain the information does not exist – Unreasonable to rely on section 18(e) as the information was held – Collating information would not amount to the creation of new information – Chief Ombudsman recommended that the Department apologise and make a new decision on the request – The Department accepted the Ombudsman’s opinion and actioned the recommendations

Background

On 6 December 2022, the complainant made a request to the Department of Internal Affairs (the Department) for a list of the individuals and organisations that had expressed support to the Minister of Local Government for the extension of the Tauranga City Council Commissioners’ (the Commissioners) terms.

On 17 January 2023, the Department refused the request under section 18(e) of the Official Information Act 1982 (OIA), advising that ‘[the Department] does not hold records of persons or organisations who supported the appointment of the Commissioners for a further term’.

The requester complained to the Chief Ombudsman.

Investigation

Section 18(e) refusal of the request

Section 18(e) of the OIA provides that:

"A request […] may be refused [if] the document alleged to contain the information requested does not exist or, despite reasonable efforts to locate it, cannot be found."

During the course of the investigation, the Department advised that it held ‘letters to the Minister in which individuals and organisations expressed support for the extension of the Commission’.

The Ombudsman asked the Department why a list of the individuals and organisations could not have been collated from these letters. The Department said that as it did not hold this information in the form of a list, responding to the request would have required the creation of new information. This is relevant because ‘official information’ is defined as ‘any information held’ by an agency or Minister that is subject to the OIA, and the OIA does not oblige an agency or Minister to create new information in order to respond. Rather, an agency is required to consider whether or not to release documents or information already held. In light of this, the Department considered that the request had been appropriately refused under section 18(e) of the OIA.

The Ombudsman accepted that the Department did not hold a list of the individuals and organisations that had written to the Minister in a literal sense. However, he did not accept that the Department did not hold ‘the document alleged to contain the information requested’. Given that the Department held the letters to the Minister, it clearly held records of the individuals and organisations that wrote to the Minister in support of extending the Commissioners’ terms.

The information requested was clearly held by the Department, and the Ombudsman did not consider the process of reviewing correspondence to collate a list amounted to the creation of new information.

Interpretation of the request

The Ombudsman also considered whether the Department had interpreted the request too narrowly.

During the investigation, the Department advised that it considered the request to be a straightforward question that did not require clarification with the complainant.

The Ombudsman noted that the complainant was clearly trying to understand who the Minister was referring to when the Minister mentioned ‘support for the Commissioners’. For the Department to interpret the request to mean that the requester only wanted this information if it had already been reduced to the form of a list was unreasonable.

The Ombudsman was also concerned that the Department told the requester:

"…[the Department] does not hold records [emphasis added] of persons or organisations who supported the appointment of the Commissioners for a further term."

As the Ombudsman noted, the Department advised it held the letters that the Minister received from individuals and organisations expressing support for the Commissioners. Clearly, these are records of individuals and organisations who supported the Commissioners.

The Ombudsman noted that the Department’s comments to the complainant when refusing the request were, at best, inadvertently misleading.

Obligation to consider consulting and giving reasonable assistance

The Ombudsman also considered whether the Department had met its obligation to consider consulting the requester and to provide them with ‘reasonable assistance’.

Section 13 of the OIA imposes a general duty on agencies to provide ‘reasonable assistance’ to a person making an OIA request.

Section 18B of the OIA provides that, prior to refusing a request under section 18(e), the agency must consider consulting with the requester. The purpose of this is to help the requester reduce the likelihood of their request being refused under section 18(e).

These obligations should be read in conjunction with one of the ‘purposes’ of the OIA outlined in section 4, to progressively increase the availability of official information, and the overarching ‘principle of availability’ in section 5 of the OIA, when considering how to respond to an OIA request.

As explained in the Ombudsman’s ‘Information not held’ guide[1], it is good practice to explain to the requester the steps taken to try to find the document, or the reasons why the document is believed not to exist. It is also good practice to consider whether there is any other information that can be released that might satisfy the requester.

In this case, the Ombudsman noted that it would have been sensible for the Department to explain this in more detail to the complainant. The Department could have explained that while it did not hold a pre-existing list of the individuals and organisations who supported the extension of the Commissioners’ terms, it did hold letters from individuals and organisations expressing support in the form of written correspondence.

Outcome

The Ombudsman formed the opinion that the Department’s decision to refuse the request under section 18(e) of the OIA was unreasonable.

The Ombudsman recommended that the Department apologise to the requester and make a new decision on the request after collating the requested information it holds.

The Department accepted the Ombudsman’s opinion and actioned his recommendations.

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.

Footnote

[1] Information not held – a guide to sections 18(e) and (g) of the OIA and sections 17(e) and (g) of the LGOIMA. Return to text