A Survey of Ministerial Compliance with the Official Information Act 1982

• Date: 01 January 2022

57

A SURVEY OF MINISTERIAL

COMPLIANCE WITH THE OFFICIAL

INFORMATION ACT 1982

*†



ere are long-sta nding calls for refor m of the Ocial In formation Act 19 82. We

aim to supply a par tial empiri cal basis for und erstanding th ese calls throu gh a survey

of ministerial compliance with the Act. We requested quantitative and qualitative

information f rom 26 Ministe rs about their de cisions dur ing a three-mont h period to

withhold reque sted informati on on the grounds t hat the informat ion is, or will s oon be,

publicly avai lable. We focused on t his specific wi thholding grou nd because pro active

disclosure i s a burgeoning is sue globally bu t is not addressed d irectly in the Act.  is

article pres ents our conce ptual framew ork and methodo logy before setti ng out a

summary and a nalysis of the res ults of our surv ey. While any conc lusions draw n must

be treated as ind icative rather t han determin ative, we find th at there was gene rally

good complian ce with the Act although some inst ances of noncompliance appe ared to be

serious and u njustifiable. We hope th is survey contri butes to debate and disc ussion about

appropriate l egislative reform.



There are long-st anding ca lls for reform of the Ocia l Information Ac t 1982 (the

Act).1 These ca lls are based on a perceive d need to update legisla tion that is now 40

years old, a nd anecdotal ev idence of basic compliance fa ilures by those su bject

1 See, for exam ple, Geore y Palmer “O utdate d and Incre asing ly Toothles s, the Oci al

Informat ion Act Needs an O verhaul” (30 M ay 2017) The Spino <htt ps://thespino .co.nz>.

* St udent and Resea rch Assist ant, Facult y of Law, Universit y of Auckland .

† Senior Lec turer, Faculty of L aw, University of Auck land. Please add ress all corres pondence to

edward.w illis @auckla nd.ac.n z. The autho rs wish to t hank a n anonym ous reviewe r for very

helpful com ments on an ear lier draf t, subject to t he usual dis claimer.

58 [Vol 29, 2022]

to the Act’s requirements.2 In this a rticle we seek t o test the mer its of these c alls

in a lim ited but empir ical way th rough a survey of complia nce with the Act at the

minis terial level . We submitted a s tandar dised reques t for information t o each of the

New Zeala nd government’s 26 M inist ers regar ding ref usals t o supply infor mation

on specific gr ounds dur ing the th reemonth period between 1 Apr il 2021 to 30 June

2021. We are not awa re of any empirical s urvey of this k ind being undert aken at the

minis terial level, and so ou r results provide new i ndicative evidence of compli ance

with the A ct at the hig hest polit ical levels of gover nment. Bot h complianc e with

our sta ndardised request a nd the information suppl ied in response to our reques t

give empiric al support t o the percept ion that compli ance wit h the Act is va riable,

althoug h it remai ns a matte r of judgement whether t his var iabili ty is suc iently

serious to wa rrant funda mental reform.

Our sta ndardised re quest focused speci fically on refus als to supply in formation

under s18(d) of the Act, wh ich provides that a r equest for inform ation may be refuse d

on the basis t hatthe informat ion requested i s or will soon b e publicly avai lable. There

were two reason s for our focus on this under -studied provision of t he Act. The first

was an ane cdotal i mpression that r equested i nformat ion is often w ithheld und er

this gr ound but is not act ually r eleased wi thin a n appropriate t imefra me. In the

context of the on going COVID-19 pandemic , for example, there have been in formal

allegat ions that the ti ming of release of i nformation has be en used to serve the ends

of politica l expediency when genu ine complia nce with the Act wou ld have compelled

release much sooner. The secon d reason for our focu s on s18 (d) is that proact ive

disclosu re is an area for possible refor m under any review of the Act . Governments

around th e world now generate and st ore much greater amou nts of informat ion, and

proactively re lease more of that inform ation more often.3 We wanted to det ermine,

in a prelim inar y way, whether cha nging pra ctices ar ound proacti ve release mig ht

be a cause for concern .

Overall , our sur vey did revea l some concerni ng practice s around rel iance

of s18(d), a nd this se ems to rein force the view t hat bett er guidance for pro active

disclosu re is necessa ry. There was conside rable vari ation in the t imelin ess of

responses, w ith severa l Mini sters fa iling t o meet deadl ines, and t wo mini steria l

oces providi ng no subst antive res ponse at al l. The qual itative re sponses we

received sugg est that Mi nist ers are genera lly al ive to the exp ectation s and issues

related to pr oactive di sclosure of in formation . However, responses al so showed

some concerni ng timel ines rega rding t he subsequent rele ase of inform ation

2 See t he examples f rom journ alist s, MPs and o cials l isted i n Steven Pr ice “The Oci al

Informat ion Act 1982: A Windo w on Government of Cur tains Dr awn?” (New Zea land Centre for

Public Law, V ictoria Unive rsity of Welli ngton, Occa sional Paper 17, 2 005) at 3–5.

3 See section II B be low.