Tuesday, July 06, 2021

How to complain about an OIA extension

I've been seeing a lot of OIA requesters complaining over Twitter about their requests getting extended for unspecified "consultations". Such extensions are permitted under the Act, under certain circumstances, but as I've noted previously, it is one way in which agencies juke the stats so they can respond late but pretend to be "on-time" for the purposes of Te Kawa Mataaho - Public Service Commission's OIA statistics (and their KPIs). My recent complaints to the Ombudsman on this issue have found agencies extending for unnecessary lengths of time, pretending routine decision-making is "consultation", and (most infamously) extending in order to create information to match their public statements. So there are reasonable grounds for suspicion whenever an agency invokes this clause, especially if it is invoked on the 20th working day - circumstances which immediately suggest an agency trying to scam extra time.

What should you do if your OIA request is extended for "consultations"? My first step is to immediately reply asking who they are consulting with and why it could not be done within the statutory timeframe. Sometimes, I get a reasonable explanation - they need to consult a third party, for example (but see below). Sometimes, they say the consultations are "internal", "with senior decision makers", with the Minister's office, or they just don't respond at all. In which case 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? The law says a request can be extended for consultations only if they are "necessary to make a decision [and] cannot reasonably be made within the original time limit", and that the extension must be for a reasonable period of time. So that's the three basic angles of attack:

  • Are the consultations "necessary"?
  • Could (or rather, should) they have been made within the original time limit?
  • Is the length of time reasonable?
The first two are tangled together, and the circumstances will dictate which to emphasise. There are circumstances in which agencies should consult third parties - when you have requested someone else's private information, where there are questions of commercial confidentiality, or when the information requested is from another agency. These sorts of consultations are unlikely to be able to be handled within the 20 working day time limit. If the request does not obviously touch upon these areas, then necessity is immediately questionable. Ditto if they're internal - there needs to be some extraordinary circumstances (like needing legal advice, or a large and complex request) for an agency's normal internal decision-making process to be classed as "consultations", and obviously all agencies should be able to make an OIA decision within the statutory 20 working days. Equally obviously, the less complicated your request is, the higher the bar the agency has to meet to claim that any necessary consultations couldn't happen within the original time limit.

My preferred wording for complaints on this angle goes something like this:

The extension is not necessary. There was no need to consult external third parties. Any internal consultations for signoff or management approval should be accommodated within the agency's regular working practice. If they are not, or someone is on holiday, or the agency feels it has "high demand", then that does not seem to reach the threshold of "necessity" envisioned by the Act. s15A(1)(b) is to accommodate extraordinary and unusual circumstances, not routine ones, and not failures of planning or resourcing by agencies.

If the "consultations" are internal, then query whether they are exceptional, or part of the ordinary decision-making process. Ombudsman's ruling 548580 has some useful language to quote here:

Employees of a department may be asked to gather information and form a proposed response to an OIA request and to put that before a decision-maker. In such cases, a department may put in place processes to ensure the quality of proposed responses and to keep others within the department informed about what might be released. However, an agreed review and sign-out process of this kind is not ‘consultation’. It is an extension of the decision-making process itself undertaken on the decision-maker’s behalf. Their actions cannot be regarded as separate from those of the decision-maker.
If the "consultations" fall into any of these categories, then they are not consultations, and the extension is invalid.

If the "consultations" are with a Minister, that is a slam-dunk: the Ombudsman's guide on The OIA for Ministers and agencies notes that where Ministers are concerned,

[c]onsultation arrangements should be configured in such a way that the agency is generally able to meet its requirement to make and communicate the decision on a request within the maximum 20 working days.
So just quote that bit.

On the question of "a reasonable time", the Ombudsman's guide on Consulting third parties notes that external consultation should take 5-10 working days, though this can go up or down depending on the volume and complexity of information involved, or on other circumstances, including whether urgency has been requested by the requester (It also notes that agencies should plan ahead for consultation and start it as quickly as possible to meet their obligation to respond as soon as reasonably practicable). So anything longer than that requires extraordinary justification. Obviously, for internal consultations, the reasonable timeframe would be shorter - less than 5 days, absent extraordinary circumstances. My current preferred wording for this is:

The extension is for an unreasonably long period of time. [pick all that apply]
  • The information requested is simple and should not require this long for consultation.
  • The guidance on "Consulting third parties" states that such consultation should take no longer than 5-10 working days unless there are exceptional circumstances. It is unclear that these circumstances exist.
  • [And] Internal consultations should take significantly less time than external ones.
Also worth noting: if an agency extends for 15 working days for "consultations", then responds in five, that's a slam-dunk on unreasonable length, and you should complain to stop them doing it again.

Extensions for large volumes of information are a different kettle of fish, and the only guidance I have here is that if an agency extends for volume, then gives you nothing, or just a handful of documents, it strongly suggests that the extension was unnecessary (unless you were asking them to find a needle in a haystack). And again, you should complain, to stop them doing it again.

Update: Updating with additional material on internal "consultations".