Unreasonable extension of time limit for internal consultations
Request for information about OIA statistics—extension to time limit for responding to request – notified on basis of need to undertake consultations—internal review and sign-out process is part of making a decision and not consultation for the purpose of s15A – decision to extend unreasonable
In February 2021, a requester made requests to the New Zealand Security Intelligence Service (NZSIS) and Government Communications Security Bureau (GCSB) for statistics relating to their processing of OIA requests. In March 2021, the agencies provided a joint response to the requester, extending the statutory time limit to make a decision on the requests by six working days, due to the need to undertake internal consultations.
The requester made a complaint to the Chief Ombudsman about the extension.
The OIA requires a decision on a request for official information to be made and communicated as soon as reasonably practicable and within 20 working days of the request being received. However, this period can be extended in certain circumstances, including where ‘consultations necessary to make a decision on the request are such that a proper response to the request cannot reasonably be made within the original time limit’. Any extension must be ‘for a reasonable period of time having regard to the circumstances’.
The agencies submitted that the consultations necessary to make a decision were a routine review by the communications team, a manager review, and Director-General sign-out. The agencies also stated that the OIA and Privacy Act requests team was dealing with an unusually high workload at the time the request was received and were not operating at full capacity. The agencies advised that due to the nature of the information held, and potential implications of release on national security, it was important that the Directors-General and the manager responsible for their OIA function have oversight of all the information released. In these circumstances, the response could not be drafted and run through internal review procedures within the 20-working day maximum time limit.
The Ombudsman acknowledged the sensitivity of the information held by the agencies and the volume of work being dealt with at that time. However, he did not consider that the routine review process described by the agencies were consultations necessary to make a decision on the request for the purposes of extending the time limit under the OIA.
The Ombudsman highlighted that consulting on a request for official information is discrete from making the decision on the request. There may be internal consultations within a department on a request so that all the issues relevant to the decision can be identified and understood. Normally, arrangements for any such consultation should be built into standard procedures agencies have designed to ensure they can respond to information requests as soon as reasonably practicable and no later than 20 working days. However, in circumstances where the consultations genuinely needed mean a proper decision cannot reasonably be made within the original time limit, an extension may be made. Even so, such consultations are distinct from engagements between staff in making a decision, such as peer review and sign out.
The OIA requires a department, through its chief executive or an authorised officer or employee, to decide whether to grant a request. Employees of a department may be asked to form a proposed response to an OIA request and to put that before a decision-maker. A department may put in place processes to ensure the quality of proposed responses and to keep others within the department informed about what might be released. However, an agreed review and sign-out process of this kind is not ‘consultation’. It is an extension of the decision-making process, undertaken on the decision-maker’s behalf, and cannot be regarded as separate from actions of the decision-maker.
Any consultation must also be necessary to ensure a proper response to a request. Liaising with a communications team for the purposes of anticipated media requests or managing public messaging is not necessary to make a decision on the request. It therefore does not meet the requirements of consultation such as to attract the ability to make an extension under section 15A of the OIA.
The Ombudsman formed the opinion that the agencies’ decision to extend the timeframe was unreasonable. The complainant was not seeking an apology, and no recommendation was made in this 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.