A few years back, Te Kawa Mataaho / Public Service Commission started releasing OIA statistics, on the theory that this would allow failure to be identified and managed, and so improve performance. It may have done so initially, but then the iron laws of bureaucracy (and specifically, Goodhart's and Campbell's) took over, and underresourced agencies began to game them in order to improve their "performance". So we had a flood of bullshit extensions, as agencies tried to scam extra time while claiming responses were "timely". When the Ombudsman stomped on that, they started responding that the information would "soon" be "publicly available" (when "soon" meant "when we feel like it" and "available" meant "with whatever we want redacted"). The Ombudsman has stomped on that too, and so the latest tactic to pretend a response is timely for statistical purposes while scamming extra time is "delayed release": a response claiming that a decision has been made, but information will be released later (sometimes with a date, sometimes without, sometimes after a long delay). Et voila! A timely "decision" which can be used to make the stats look good, while giving as much extra time as an agency wants to actually do the work.
The problem of course is that - absent highly unusual circumstances - this is simply illegal. The OIA requires that decision and release both be made "as soon as reasonably practicable" (ASARP). When a decision has actually been made, then release should be immediate unless it is not "reasonably practicable" to do so. Unless an agency gives a specific reason why that is the case, a delay is illegal (and, under s28(5) of the Act, an effective refusal).
What should you do if you receive an OIA response like this? The first step is to look for the reason justifying the delay. If there isn't one, reply immediately asking exactly what circumstances make it impractical to release the information immediately. There may be a reasonable explanation! But if there is not, or they say "we need more time", or "it is still at the Minister's office", or "it is still under review", or they don't respond at all within 48 hours, then its on to step two: complain. You can use the online form here, or just email it to complaint@ombudsmen.parliament.nz.
What should you say in your complaint? After laying out the circumstances of the request ("on $RequestDate I filed a request with $agency. A response was due by $DueDate. On $ResponseDate the agency responded, saying that it had made a decision on my request, but that release of the information would be delayed..."), ask that the response be investigated, and say something like:
the response has been unduly delayed, and therefore (following s28(5) of the Act), effectively refused. While the Act permits a delay between decision and release, this requires unusual circumstances...At this stage either give the agency's explanation (if one has been provided), and say that it does not seem to make immediate release impractical, or say that no explanation has been provided. Either way, go on and say:
This seems to be a failure to meet the "as soon as reasonably practical" standard demanded by the Act.Additionally, if the response does not provide an actual release date, or indicate what specifically will be released, or if it does not include any withholding grounds, note this, and question whether it is actually a "decision" under the Act. In a past ruling on this sort of response (587412), the Ombudsman said:
To constitute a valid decision under the OIA, a response must be very clear as to whether a request is granted, in full or in part, as well as confirm if information is intended to be withheld, and provide the reasons for the same. I would expect an agency to have identified the specific information within the scope of the request, collated and reviewed this information, and set specific criteria for determining which information (if any) is to be withheld.Many "delayed response" "decisions" fail to meet these conditions, and are thus not "decisions" at all.
A complaint will take a while - possibly six months to a year. You will likely receive your information long before then. But it is still important to complain. Complaints have stopped routine forms of OIA abuse in the past. With enough complaints, we can stop this one.
