Under section 14 of the Bill of Rights Act 1990, everyone has the right to seek, receive, and impart information. As government holds information that has the potential to harm national or personal interest and security of the public, constraints on this right have been enacted by legislation.
The main pieces of legislation that govern the collection, disclosure and use of government information are the Official Information Act 1982 (OIA), and the Privacy Act 2020. The OIA requires that information is made available on request unless there are specific grounds for refusal. The Privacy Act provides a right of access to an individual’s personal information about themselves. It also protects against other infringements on the right to privacy including unjustified collection, use and disclosure of personal information.
Outside of requests from the public, there is also legislation that governs the life-cycle of government information. This includes the length of time it can be held, where it is held, how it is disposed of, what it may be used for while held by the government, and the standards to which these activities must be met.
New Zealand Public Service organisations and third parties that handle government information must consider all of the legal requirements to make available, manage, and protect government information. They do this under relevant legislation, cabinet directives, strategies, and standards such as:
- Official Information Act 1982 (OIA)
- Local Government Official Information and Meetings Act 1987 (LGOIMA)
- Public Records Act 2005 (PRA)
- Privacy Act 2020 (Privacy)
- Public Service Act 2020 (PSA)
- Declaration on Open and Transparent Government [CAB(11)29/12] (OTG)
- Information and Records Management Standard (IRMS)
- Protective Security Requirements [CAB (14) 39/38] (PSR).
If legislative or regulatory requirements require higher security measures than the minimum requirements in the classification system, apply the legislated or regulated measures.
Official Information Act 1982
The OIA provides a statutory framework for processing requests for official information. The OIA generally applies to all information held by government agencies, subject to specific exceptions.
The Classification System sits alongside the OIA as an added protective measure with specific emphasis on how certain government information must be handled.
The purpose of the OIA is to increase the availability of information and protect information in the public interest. Sections 6, 7, 9, and 10 provide grounds for refusing requests for official information, based on the need to prevent specified harms arising from the disclosure of the requested information. Only those harms recognised by the OIA justify protection – otherwise there is no basis for withholding the information – irrespective of its classification.
USER TIP: Sections 6 and 7 provide conclusive grounds for withholding official information, relating to national interest and safety. Section 9 provides justification for withholding official information unless there is an overriding public interest in release of the information.
If compromise of government information would create harm in any of the following groupings, there may be justification to withhold the information:
- Defence or security of New Zealand, Cook Islands, Niue, Tokelau, the Ross Dependency or its allies
- International relations of New Zealand, Cook Islands, or Niue
- Maintenance of law and order including crime prevention, law enforcement, and right to fair trial
- Personal harm to members of the public including their health, safety, dignity, liberty, financial status, commercial position, assets, privacy, and identity
- New Zealand economy or economic interest
- Ministers and public service organisations operations including its commercial activities and negotiations
- Maintenance of legal privilege
- Maintenance of constitutional conventions including confidentiality of communications by or with Sovereign or her representatives, confidentiality of advice by Ministers of the Crown and officials, political neutrality, and ministerial responsibility
- Maintenance of the effective conduct of public affairs including the ability to provide free and frank expression of opinions and protections from improper pressure or harassment
- Supply of information provided in confidence where it is in the public interest that information should continue to be supplied or release of it would damage public interest.
See also: Official Information Act 1982
Privacy Act 2020
The Privacy Act 2020 provides the legislative framework for access and protection of an individual’s own personal information. (Personal information is a subset of official information. Requests for personal information about third parties are dealt with under the OIA.) The Privacy Act governs all personal information, including information held by public and private agencies. The Privacy Act has thirteen principles that businesses and organisations must follow when collecting, using, and storing personal information. The principles are designed to ensure personal information is protected and respected.
Personal information may sit within a classified document. However, as with all other official information, the protective markings on the document do not preclude the personal information from being released if it is requested. The Privacy Act gives individuals the right to ask any agency (with a few exceptions) for access to the personal information that an agency holds about them. So, if the request is for personal information about the requester, the Privacy Act will apply (even if the information is also official information).
The presumption under the Privacy Act is that individuals will be entitled to their information, unless one of the limited withholding grounds set out in the Privacy Act applies.
Under the Official Information Act any person or agency may ask a public sector body for any information that agency holds.
The presumption under these two Acts is also in favour of releasing information. However, there is a range of withholding grounds which allow public sector agencies to withhold official information.
Part 4 of the Privacy act outlines the conditions for the access to, and correction of, personal information. It also provides the grounds for refusing access to personal information:
- Security, defence and international relations of New Zealand, Cook Islands, Niue, Tokelau, the Ross dependency, or its allies.
- Protection of the Individual
- Trade secrets and Commercial position
- Evaluative Material
- Maintenance of Law and Order
- Unwarranted disclosure of another person’s affairs
- Maintenance of legal privilege
There are also Codes of Practice issued by the Privacy Commissioner which modify the application of the Information Privacy Principles for certain sectors or types of information. For example, the Health Information Privacy Code 2020 provides the definition, and specific conditions for the collection, handling and release of health information. A thorough consideration of all legislative requirements regarding personal information is important when responding to a Privacy Act request.
See also: Privacy Act 2020
Public Records Act 2005
The Public Records Act 2005 provides the legislative basis for the creation, disposal and management of government information and public records in all its forms. Through its provisions the PRA supports the accountability of the New Zealand government and provides the public with confidence in the integrity of the records of government.
Part 3 (Public Access) of the Act sets out the requirement to determine the access status of those public records which have been transferred to Archives New Zealand or are subject to mandatory transferral (that are 25 years or older). The Act determines that the status for these records should be open access unless there is good reason restrict public access. It also allows for appropriate access conditions to be set to govern access requests to restricted material.
See also: Public Records Act 2005
Page last modified: 20/06/2022