How to use the Official Information Act
What’s the theory behind the OIA?
Essentially that we, the public, own the information that’s held by government. And we’re entitled to see it on request unless there’s good reason to withhold it. “Good reason” isn’t just any old reason the government thinks is justified. There is a careful list of “good reasons” for refusing to give you information in the OIA (such as prejudice to national security or international relations). If the government can’t find a good reason from that list, it has to give you the information.
What information can I get?
Official information laws cover almost all official information and almost all government agencies, including state-owned enterprises and local government. Local government is covered by the Local Government Official Information and Meetings Act, but this is largely identical to the OIA.
What sort of things does this include?
Correspondence, minutes of meetings, memos, reports, studies, options papers, cost-benefit analyses, agendas, internal rules affecting decisions, briefings, budget bids, submissions, consultants’ reports, costings, policy papers.
There are some things that you can ask for, but may find it difficult to get: legal advice, emails (and deleted emails), drafts, work diaries, handwritten written file notes, telephone notes.
It can be a complicated business to work out whether, in any particular case, you are entitled to the information you seek, and you may have to refer the matter to the Ombudsmen. Read on.
Can I ask for information that hasn’t been written down?
Yes, but it can be hard to get. The OIA applies to information that’s “held” by the agency. If you ask simple or yes-no questions that are within the knowledge of the agency (eg “was X issue discussed at the meeting?” “who was present at the meeting?”) then the agency should simply tell you, whether its recorded in a written document or not. But you can’t make them form an opinion (”what does the Minister think of Y policy?”) or construct information they don’t already hold.
How do I make a request?
You simply need to ask for the information. There are no formalities. You don’t even need to mention the OIA. You don’t need to explain the reason for your request. You can do it with a phone call if you like.
There is only one rule: you need to spell out what you’re after so that the agency can tell what falls inside your request and what doesn’t.
It’s a good idea to put your request in writing (an email will do) so you have a record of it, but you don’t need to.
Be aware, however, that some officials wrongly believe that your request must be in writing, and/or must mention the Official Information Act. You could argue with them (if you can get them to consult the Ombudsmen’s office, you’ll win) or you could save yourself the grief by writing it down and putting “Official Information request” on top.
Ironically, sometimes you can get the information you seek more readily if officials don’t treat it as an OIA request. They might just pop the document you’re after in the mail instead of going through whatever complicated process their agency adopts for processing requests.
Does it cost anything?
It’s free to make a request. In some circumstances the agency might try to charge you for retrieving the information, but it should let you know in advance how much it will cost you. Then you can decide whether you want to (a) abandon the request; (b) narrow it down; (c) ask for a waiver of the charge; or (d) ask the Ombudsmen to review the charge.
When do they have to give me the information?
Under the OIA, they’re supposed to make a decision on your request “as soon as reasonably practicable”. But the law gives them a deadline: no later than 20 working days. If that’s going to cause administrative problems, they can write giving themselves an extension. But only once.
How can I maximise my chances of getting the information I want?
1. Know what you want. There is a bit of a tension here. On the one hand, you want to make your request as specific and clearly deliniated as possible. Can you limit it by date range (”all documents from the past year relating to…”) or by author (”all documents about X written by Y”). One the other hand, bear in mind that some agencies have a tendency to read your request narrowly, especially if it is politically sensitive.
2. Have sympathy for the poor official on the other side. It’s not much fun processing OIA requests. Officials are usually in public service because they want to make the country a better place, not because they like to fossick around in dusty basements looking for reams of paper. It can take weeks. They probably have other more pressing work. They may be suspicious of what you want to do with the information. They may be worried about what their boss or the minister will think if something embarrassing is released. On the other hand, they may be your best ally in obtaining the information you’re after, and even suggesting other material that might be relevant. Even though you don’t have to tell them why you want the information, you might like to do so anyway if it will help them to help you.
3. Be persistent. It’s the squeaky wheel that gets the oil. Diary ahead to the end of the 20 working day period, then call them and ask when you can expect to receive the information. If you are politely persistent, you have more chance that your request will be given priority.
4. Go to the Ombudsmen if you are denied information. If you think you are being given the run-around, or have been denied information you think you might be entitled to, then ask the Ombudsmen to conduct a review. It’s free, and all you have to do is write to the Ombudsmen enclosing the correspondence and seeking a review.
How else can I maximise my chances of getting the information I want?
Try to find the information out using other sources first. Is it on their website? Is it in an annual report? Is it at the library?
Make a preliminary phone call to find out what sorts of information they hold.
As discussed, put the request in writing. If you email, you’ve got a copy, and know just when it was sent.
Address it to the CEO of the organisation.
Ask for an acknowledgement of receipt. Say: “Can you let me know that this has been received”.
Include your contact details so they can discuss the request with you.
Show that you know the time limit (”I look forward to your response by….”)
What if they don’t reply in 20 working days?
It is deemed to be refused. Write to the Ombudsmen and complain.
What if they turn down the request?
Don’t take their refusal at face value. Sometimes Ministers or officials will take a very wide view of what the OIA allows them to keep from you. For instance, refusal letters will often say the information is “commercially sensitive” or “confidential” or that it is “in draft” or “relates to a decision that the Minister has not yet taken”. These are not proper reasons, by themselves, to refuse to disclose information. Officials and Ministers are supposed to identify the harm that disclosure would cause, ensure that their refusal falls squarely within the “good reasons” set out in the OIA, and (in most cases) balance the harm that would be caused by releasing the information against the public interest that may be served by releasing it. Usually it’s not clear that they’ve been through all these hoops.
If you have any doubts, you can write to the Ombudsmen and ask them to review the decision to withhold the information. It doesn’t cost you anything, though it may take many months.
Or you can look at the Ombudsmen’s OIA practice guidelines and see whether you think the agency has followed the law properly.