Consulting with the Office of the Information Commissioner

Agencies1 processing access applications made under the Right to Information Act 20092 (RTI Act) may find themselves dealing with documents that were created by the Office of the Information Commissioner (OIC). For example, OIC correspondence to the Agency sent during an external review, performance audit, or privacy complaint (OIC documents).

Third party consultation with OIC concerning the release of these documents is not necessary.

The RTI Act requires that agency documents be accessible to the public unless on balance it is contrary to the public interest to do so. This includes OIC documents.

Consultation

When processing an access application where the scope includes documents that contain information the disclosure of which may reasonably be expected to be of concern to a third party, the agency should take steps to obtain the views of that third party3. An agency processing an access application may identify information in OIC Documents that fall within scope of the application which it considers should be subject to third party consultation. However, it is OIC’s view that disclosure of this information will rarely (if ever) be of concern to OIC.

Consequently third party consultation with OIC will not be necessary.

Exempt or contrary to public interest information

While OIC documents may occasionally contain exempt or contrary to public interest information or information relating to third parties4, in OIC’s view it is unnecessary for an agency to consult with OIC in relation to this kind of information. An agency may, however, decide to refuse access to such information on the basis that it is exempt or contrary to public interest, or seek the views of another third party on its disclosure.

An agency also has the discretion to release exempt or contrary to public interest information.5 In these cases, OIC will also not have a concern about disclosure and does not need to be consulted.

Third party information in OIC Documents

Where this type of information appears in an OIC Document, the agency should consider whether disclosure would be of concern to that third party (whether it be an individual, organisation, or government) and if so, take steps to consult with the third party under section 37 of the RTI Act.  OIC does not need to be consulted on this information.

Discussion and opinion

Where documents consist of file notes of, or emails from, OIC officers capturing discussions with agency officers or providing information about the Acts these will generally not be of concern. OIC considers the professional opinion of a public sector employee given in a professional capacity to be routine personal work information, the disclosure of which would generally not be of concern to that person. The harm that could result from its disclosure would, in most circumstances, be minimal or none. In addition, OIC supports the pro-disclosure bias of the RTI Act and promotes agency openness wherever possible. It will generally not be necessary to consult with OIC under section 37 of the RTI Act.


  • 1 In this Guideline references to an ‘agency’ include Ministers, unless otherwise specified.
  • 2 Or Chapter 3 of the Information Privacy Act 2009.
  • 3 For more information refer to Consulting with a relevant third party
  • 4 OIC exercises caution in including these types of information in any correspondence it sends to agencies, however there are cases which require its inclusion, eg to support the reasons for a preliminary view OIC has formed on the issues in an external review.
  • 5 Section 48(3) and 49(5) of the RTI Act.

Current as at: August 2, 2017