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Local Government Official Information and Meetings Act 1987 (LGOIMA)

 The purpose of LGOIMA is to provide for the availability to the public of official information held by local authorities, and to promote the open and public transaction of business at meetings of local authorities.

 This is to enable more effective participation by the public in the actions and decisions of local authorities, promote the accountability of local authority members and officials and thereby to enhance respect for the law and to promote good local government in New Zealand.

 In addition the Act provides for proper access by each person to official information relating to that person, while protecting official information and the deliberations of local authorities to the extent consistent with the public interest and the preservation of personal privacy.

 Note that LGOIMA and the Official Information Act 1982 are considered to work in synchronicity  with one-another.  Some parts of the articles below may refer to either Act but mean both Acts.

Requests for Information

When processing and responding to a request for official information a local body needs to consider the following:

• What specific information has been requested?

• Can the information be identified?

• Is the information “held”?

• Is the information held “official information”?

• Are there any administrative or procedural reasons for refusal?

• Is it possible to make a decision on the request within the time limits of the Act?

• Is there good reason to withhold some or all of the information?

• In what form should the information be released?

Specific Information Requested

Identifying Information

 The actual request should be considered carefully in order to identify the specific information that has been requested.

 If a decision-maker begins to make assumptions about the information that is being sought, there is a risk that those assumptions will be wrong. Where it is evident that an assumption about the scope of the request is being made, it can often be helpful to contact the requester if that is reasonably practicable. Often a simple telephone conversation can resolve any ambiguity.

Is the Information "Held"?

 The duty to provide assistance only applies to requests for information that is “held” for the purposes of the OIA. If the information requested is not held by the agency, the local body should consider whether to transfer the request or to refuse the request.

 Section 14(b)7 of the Act provides that where the information to which the request relates the organisation but is believed by the person dealing with the request to be held by another local authority or organisation then the agency should transfer the request “promptly, and in any case not later than 10 working days after the day on which the request is received.

 The 10 working day time limit can be extended in certain limited circumstances where there is a large quantity of information or there is a need to consult other parties. However, any extension must be notified within the original 10 working day time limit.

 It is at this initial stage that a local body should determine who is to accept responsibility for responding to the request – for example, whether it is more appropriate for the request to be answered by a Department or Minister.

 If a local body does decide to transfer the request, it should first ensure that it has identified any relevant information that it holds. It should identify that information when making the transfer.

 A request cannot be refused simply because the agency considers it to be so vague that it is not reasonably possible to determine what information is being requested.

 If the information requested cannot be identified, there is a duty on the recipient of the request to give reasonable assistance to the requester to make the request in a manner that is in accordance with section 12(2) of the Act. Reasonable assistance requires more than telling the requester that the request is not specific. Having regard to the purposes of the Act and to the principle of availability of information, it is incumbent on the recipient of a request to take all reasonable steps to provide assistance. The aim of the assistance should be to enable the requester to refine the request so that it is specific enough to enable the information sought to be readily identified.

 The fact that a request is for a large amount of information does not of itself mean that the request lacks due particularity. The term “fishing expedition” appears to have received general recognition in the vocabulary of those concerned with making decisions on requests for information. It should be clearly understood that this term is not recognised in the Act as a withholding reason. If the information requested meets the test of due particularity it cannot be refused simply on the basis that it is considered to be a fishing expedition. The request must be given proper consideration under the Act.

 If an agency is considering whether to refuse a request on the basis that the information cannot be made available without substantial collation or research the agency must first consider whether imposing a charge for the supply of the information at issue or extending the time frame for responding to the request would enable the request to be granted, and consulting with the requester would assist the requester to make their request in a manner which would not involve substantial collation and research.

 Charging a fee for an information request is a “provision of last resort”.

What is Official Information?

Reasons for Refusal

 All information held by an organisation subject to the Local Government Official Information and Meetings Act (LGOIMA) is official information. This includes information held by an independent contractor engaged by an agency, and information held by any advisory council or committee established for the purpose of assisting or advising a department, Minister or organisation.

 The Ombudsmen consider that the definition of official information also includes knowledge of a particular fact or state of affairs held by Council officers in their official capacity. The fact that such information has not yet been reduced to writing does not mean that it does not exist and is not “held” for the purposes of the Act.

 As a consequence of the Privacy Act 1993 (PA), requests made by or on behalf of natural persons for personal information about themselves must be considered under the PA rather than LGOIMA.

Requests may be refused if:

• Making available the requested information would be against the law or constitutes contempt of Court or of the House of Representatives

• The information is publicly available

• The document alleged to contain the information requested does not exist or cannot be found

• The information requested cannot be made available without substantial collation or research

• The information requested is not held and the request cannot be transferred to another organisation

• The request is frivolous or vexatious or the information requested is trivial

Withholding Information

There must be “good reason” to withhold information.  When considering whether one of those withholding grounds applies to the information requested, thought should be given to whether there are grounds to believe that disclosure of the information would cause a harmful effect; whether that harmful effect would prejudice one of the conclusive interests protected by the Act – if so, whether the interest in withholding the information is outweighed by any countervailing considerations which favour its release, in the public interest.

If an agency considers that there is good reason to refuse the request, it should advise the requester of the decision to refuse the request,  the reason for its decision to refuse the request, if possible the grounds in support of that reason, and the right to complain to an Ombudsman about the decision to refuse the request.

While it is not mandatory for an agency to provide grounds in support of the statutory reasons for refusal, a requester does have the right to ask for these (S19 OIA, S18 LGOIMA).

Time Limits

When a request is received for official information, that request must be considered and a decision made and conveyed to the requester as soon as reasonably practicable, and in any event no later than 20 working days after the date upon which the request is received.

It is important to note that when the time limit was inserted into the Act in 1987 Parliament made it clear that 20 working days should not be treated as the normal period within which to respond to a request, but should be the absolute maximum.

Extension of Time Limit

Form of Information Release

The Act provides that the time limit may be extended if the request is for a large quantity of information or necessitates a search through a large quantity of information, and meeting the original time limit would unreasonably interfere with the operations of the agency, or consultations which are necessary to make a decision on the request mean that a proper response to the request cannot reasonably be made within the original time limit.

Any extension of the time limit for response must be for a “reasonable period of time having regard to the circumstances”.

If an agency intends to extend the time limit for response, it must notify the requester before the expiry of the original time limit of the intention to extend the time for reply, the period of the extension, the reason for the extension and the right to make a complaint to the Ombudsman about the extension.

The Act does not allow for further extensions to be notified if the original extension cannot be met. In this regard, agencies should bear in mind that the time limits expressed in the Act are maximums. Any extension of the maximum time limit for response should be realistic, given that multiple extensions are not permitted.

Once it is decided that some or all of the information should be released, consideration should be given to the form in which the information should be released. However, subject to certain exceptions, information should be released to the requester in the way preferred by the requester.

There are a number of different ways an agency can satisfy an information request:

• release the information in its entirety

• release the information in its entirety subject to certain conditions

• release of the information together with a contextual statement

Information could also be partially disclosed through:

• releasing a document with certain information deleted or in the form of a worthwhile summary

• releasing an excerpt from a document

• making the information available by way of inspection or an oral briefing

Breach of Time Limit

Releasing Other Relevant Information

If a decision is not made within 20 working days, or within the extended time frame, the request is deemed to have been refused and the requester has the right to ask an Ombudsman to investigate that deemed refusal.

Similarly, if a decision is made and the requester is notified within the statutory time limit that the information will be made available, but there is then an unreasonable delay in actually supplying the information to the requester, the request is deemed to have been refused.

The requester has the right to ask an Ombudsman to investigate that deemed refusal.

The public interest in disclosure may be satisfied by release of a statement confirming the status of the matter at issue, the procedures or the decision-making process, rather than release of the actual information itself.

Where the information requested is contained in a document, the Act requires that information shall be made available in the way preferred by the requester unless to do so would:

• impair efficient administration

• be contrary to any legal duty in respect of the document

• prejudice the interests protected by the Act