Contents

Chapter 14
Requests for information

Information requests from the Central Authority to the domestic public agency

14.4The Bill makes it clear that the OIA should not be used by the Central Authority to request information from domestic public agencies.441 As noted in the Issues Paper, the purpose of that Act is to make official information more readily available “to the people of New Zealand”,442 and it is not entirely clear that the Central Authority is empowered to make such a request of another government department under that Act.443 Instead, the Mutual Assistance Bill expressly provides the Central Authority with the power to request any information held by domestic public agencies needed to fulfil a foreign request for assistance.444

14.5The domestic public agency’s assessment of that request is also covered by the Bill. The Bill requires the requested agency to provide the information unless a ground for withholding the information applies. Even though we consider the OIA to be inappropriate for use in this context, the Bill cross-references the withholding grounds in sections 6 and 9(2) of the OIA, making both subject to the balancing test in section 9(1). That test provides that:

… good reason for withholding official information exists … unless, in the circumstances of the particular case, the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available.

14.6The reference to the OIA is appropriate here, as the same issues that would cause a domestic public agency to withhold information under an OIA request will apply in the MACMA context. A key difference, however, is that in making all reasons for withholding information subject to the balancing test in section 9(1) of the OIA, the Mutual Assistance Bill does not follow the OIA’s divide into “conclusive reasons for withholding” and “other reasons for withholding”. We think this is justified because the recipient of the information is the Central Authority (that is, another government agency), not an individual. The Central Authority is, of course, subject to its own constraints in terms of disclosure of that information.445 So, in contrast to requests under the OIA, once the information is disclosed to the Central Authority, it is not irrevocably in the public domain. As such, we think information that would be conclusively withheld in the OIA context may still justifiably be released to the Central Authority in the mutual assistance context.

14.7In practice, of course, we would also expect that the Central Authority would have conversations with the agency in question to determine whether the information does, in fact, need to be withheld, and whether the foreign country’s request could be amended, or should be refused.

14.8We have also included an equivalent to section 48 of the OIA providing requested agencies with protection against certain actions where information “is disclosed in good faith”.446 This is intended to discourage agencies from taking an overly risk-averse approach in deciding whether or not to provide information to the Central Authority. Again, drawing on the OIA is justified because the domestic agencies’ consideration is very similar to the considerations that they would take in the domestic context.
14.9Finally, as we noted in the Issues Paper, without having recourse to the OIA the Central Authority cannot require agencies to prioritise a request for information from the Central Authority, and, as a result, it may languish.447 As a result, the new Bill includes a requirement that the domestic agency provide the information to the Central Authority within 20 working days, unless an alternative timeframe is agreed between the agency and the Central Authority.448

Recommendation

441Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Bill [Mutual Assistance Bill], cl 12(2).
442Official Information Act 1982, s 4.
443Issues Paper, above n 437, at [18.9]–[18.11].
444Mutual Assistance Bill, cl 12(1).
445Most significantly, in relation to the requesting country, by the grounds for refusal in cls 22–23 of the Bill.
446Mutual Assistance Bill, cl 15.
447Issues Paper, above n 437, at [18.2].
448Mutual Assistance Bill, cl 13(6).