HON. SIR TEREPAI MAOATE
K.B.E.
OFFICIAL INFORMATION
ANALYSIS
Title
1. Short Title and commencement
2. Interpretation
3. Act to bind the Crown
PART 1
PURPOSES AND CRITERIA
4. Purposes
5. Principle of availability
6. Conclusive reasons for withholding official information
7. Special reasons for withholding official information related to New
Zealand
8. Other reasons for withholding official information
9. Information concerning existence of certain information
10. Exclusion of public interest immunity
PART 2
REQUESTS FOR ACCESS TO OFFICIAL INFORMATION
11. Requests
12. Assistance
13. Transfer of requests
14. Decisions on requests
15. Extension of time limits
16. Documents
17. Deletion of information from documents
18. Refusal of requests
19. Requests involving substantial collation or research
20. Duty to consider consulting person if request likely to be refused
under section 18(e) or (f)
21. Reason for refusal to be given
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PART 3
PUBLICATION OF, AND ACCESS TO, CERTAIN DOCUMENTS AND INFORMATION
22. Publication setting out functions of Ministries and organisations
23. Right of access to certain official information
24. Right of access to internal rules affecting decisions
25. Right of access by person to reasons for decisions affecting that
person
PART 4
RIGHT OF ACCESS TO PERSONAL INFORMATION
26. Right of access to personal information
27. Precautions
28. Correction of information
29. Reasons for refusal of request for personal information
PART 5
REVIEW OF DECISIONS
Division 1
Decisions under Part 2 and section 9 of this Act
30. Functions of Ombudsman
31. Application of Ombudsman Act 1984
32. Requirement of Ombudsman to be complied with within certain period
33. Procedure after investigation
34. Disclosure of certain information not to be recommended
35. Recommendations made to the Ministry or Minister of the Crown or
organisation
36. Requirements in relation to Order in Executive Council
37. Right of review
38. Appeals
39. Complainant to be informed of result of investigation
40. Restriction on application for review
Division 2
Decisions under Part 3 and Part 4 of this Act
41. Application of Ombudsman Act 1984
42. Saving in respect of Ombudsman Act 1984
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PART 6
REVIEW BY INDEPENDENT CONSULTANT
43. Appointment of independent consultant
44. Functions and powers of independent consultant
45. Functions in respect of personal information
PART 7
MISCELLANEOUS PROVISIONS
46. Assistance of Crown Law Office
47. Regulations
48. Protection against certain actions
49. Power to amend Schedule 1 by Order in Executive Council
50. Consequential amendment
51. Repeal
52. Savings
Schedules
_________________________________________________________________________
A BILL INTITULED
An Act to make official information more
freely available, to establish procedures for the achievement of those
purposes, and to repeal the Official Secrets Act 1951.
BE IT ENACTED by the Parliament of the Cook
Islands in Session assembled and by the authority of the same as follows:
1. Short Title and commencement -
(1) This Act may be cited as the Official Information Act 2008.
(2) This Act shall come into force on the 11th February 2009.
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2. Interpretation -
(1) In this Act, unless the context otherwise requires, -
"Cook Islander" means a member of the Polynesian race indigenous to the
Cook Islands;
"Document" means a document in any form,
and includes -
(a) any writing on any material;
(b) any information recorded or stored by means of any tape-recorder,
computer, or other device; and any material subsequently derived from
information so recorded or stored;
(c) any label, marking, or other writing that identifies or describes any
thing of which it forms part, or to which it is attached by any means;
(d) any book, map, plan, graph, or drawing;
(e) any photograph, film, negative, tape, or other device in which one or
more visual images are embodied so as to be capable (with or without the
aid of some other equipment) of being reproduced;
"International Organisation" means any
organisation of States or Governments of States or any organ or agency of
any such organisation; and includes the Commonwealth Secretariat;
"Member" means, in relation to an
organisation, any person (not being an officer or employee of the
organisation) who, whether by election or appointment or otherwise, holds
office as a member of the organisation and includes -
(a) where the organisation is a company or corporation, a director; and
(b) where the organisation is a trust, a trustee; and
(c) any temporary, acting, or alternative member of the organisation;
"Ministry" includes -
(a) a Ministry including a department of the Government of the Cook
Islands set out in Schedule 1 to this Act;
(b) a Ministry or department established after the coming into force of
this Act, whether by statute or decision of the Executive branch of the
Government of the Cook Islands unless, in the statute or decision
establishing the Ministry or department, it is specifically excluded from
the operation of this Act;
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"Official information"
(a) means any information held by -
(i) a Ministry; or
(ii) a Minister of the Crown in his or her official capacity; or
(iii) an organisation; and
(b) includes any information held outside the Cook Islands by any branch
or post of -
(i) a Ministry; or
(ii) an organisation; and
(c) in relation to information held by the Ministry of Justice, includes
information held by the Rules Committee established by section 102 of the
Judicature Act 1980-81; and
(d) in relation to information held by the University of the South
Pacific, includes only information held by -
(i) any full-time member of the academic staff of the University in the
Cook Islands; or
(ii) any other full-time officer or employee of the University in the Cook
Islands; or
(iii) any examiner, assessor, or moderator in the Cook Islands in any
subject or examination taught or conducted by the University in the Cook
Islands; but
(e) does not include information contained in -
(i) library or museum material made or acquired and preserved solely for
reference or exhibition purposes; or
(ii) material placed in the National Library by or on behalf of persons
other than Ministers of the Crown in their official capacity or
Ministries; and
(f) does not include information which is held by a Ministry, Minister of
the Crown, or organisation solely as an agent or for the sole purpose of
safe custody and which is so held on behalf of a person other than a
Ministry or a Minister of the Crown in his or her official capacity or an
organisation; and
(g) does not include evidence given or submissions made to -
(i) a commission of inquiry appointed by an Order in Executive Council
made under the Commissions of Inquiry Act 1966; or
(ii) a commission of inquiry or board of inquiry or court of inquiry or
committee of inquiry appointed pursuant to, and not by, any provision of
an Act to inquire into a specified matter; and
(h) does not include information contained in any correspondence or
communication which has taken place between the office of the Ombudsman
and any Ministry or Minister of the Crown or organisation and which
relates to an investigation conducted by an Ombudsman under this Act or
under the Ombudsman Act 1984, other than information that came into
existence before the commencement of that investigation;
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"Ombudsman" means the Ombudsman holding
office under the Ombudsman Act 1984;
"Organisation" means an organisation named
in Schedule 1 to this Act and includes any company falling within the
classification set out in the said Schedule;
"Permanent resident" means a person who has
been granted the status of a permanent resident pursuant to section 5 of
the Entry Residence and Departure Act 1971-72 and includes a person who
has been granted the status of an honorary resident pursuant to section 5A
of that Act;
"Person" includes a corporation sole, and
also a body of persons, whether corporate or unincorporated;
"Personal information" means any official
information held about an identifiable person;
"Qualified person" means -
(a) a Cook Islander who is resident in the Cook Islands;
(b) a permanent resident who is resident in the Cook Islands;
(c) any other natural person who is resident in the Cook Islands and has
been so resident for not less than 3 years;
(d) a body corporate, wherever incorporated, which has had a place of
business in the Cook Islands for not less than 3 years;
"Statutory Officer" means a person -
(a) holding or performing the duties of an office established by any Act;
or
(b) performing duties expressly conferred on that person by virtue of his
or her office by any Act;
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"Working day" means any day of the week
other than -
(a) a public holiday as defined in the Public Holidays Act 1999; and
(b) a day in the period commencing with the 20th day of December in any
year and ending with the 20th day of January in the following year.
(2) Where information is held by an
unincorporated body (being a board, council, committee, subcommittee, or
other body) -
(a) which is established for the purpose of assisting or advising, or
performing functions connected with, any Ministry or Minister of the Crown
or organisation; and
(b) which is so established in accordance with the provisions of an Act or
by any Ministry or Minister of the Crown or organisation,
that information shall, for the purposes of this Act, be deemed -
(c) in any case where that body is established in respect of any Ministry
or organisation, to be information held by that Ministry or organisation;
and
(d) in any case where that body is established in respect of a Minister of
the Crown, to be information held by that Minister.
(3) Where subsection (2) of this section
applies in respect of any unincorporated body and that body is established
for the purpose of assisting, advising, or performing a function connected
with any Ministry or organisation, that unincorporated body shall, for the
purposes of this Act, be deemed to be part of that Ministry or
organisation.
(4) Information held by an officer or
employee or member of a Ministry or organisation in his or her capacity as
such an officer or employee or member or in his or her capacity as a
statutory officer (other than information which he would not hold but for
his or her membership of a body other than a Ministry or organisation)
shall, for the purposes of this Act, be deemed to be held by the Ministry
or organisation of which he or she is an officer or employee or member.
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(5) Any information held by an independent
contractor engaged by any Ministry or Minister of the Crown or
organisation in his capacity as such contractor shall, for the purposes of
this Act, be deemed to be held by the Ministry or Minister of the Crown or
organisation.
(6) For the avoidance of doubt, it is
hereby declared that the terms "Ministry" and "organisation" do not
include -
(a) a Court; or
(b) in relation to its judicial functions, a Tribunal; or
(c) a Commission of Inquiry appointed by an Order in Executive Council
made under the Commissions of Inquiry Act 1966; or
(d) a Commission of Inquiry or Board of Inquiry or Court of Inquiry or
committee of inquiry appointed, pursuant to and not by, any provision of
an Act, to inquire into a specified matter.
3. Act to bind the Crown - This Act shall
bind the Crown.
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PART 1
PURPOSES AND CRITERIA
4. Purposes - The purposes of this Act are,
consistently with the principle of the Executive Government's
responsibility to Parliament -
(a) to increase the availability of official information to the people of
the Cook Islands in order -
(i) to enable their more effective participation in the making and
administration of laws and policies; and
(ii) to promote the accountability of Ministers of the Crown and
officials,
and thereby to enhance respect for the law and to promote the good
government of the Cook Islands;
(b) to provide for proper access by each person to official information
relating to that person;
c) to protect official information to the extent consistent with the
public interest and the preservation of personal privacy.
5. Principle of availability - The question
whether any official information is to be made available, where that
question arises under this Act, shall be determined in accordance with the
purposes of this Act and the principle that the information shall be made
available unless there is good reason for withholding it, except where
this Act otherwise expressly requires.
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6. Conclusive reasons for withholding
official information - Good reason for withholding official information
exists, for the purpose of section 5 of this Act, if the making available
of that information would be likely to -
(a) prejudice the security or defence of the Cook Islands or the
international relations of the Government of the Cook Islands; or
(b) prejudice the entrusting of information to the Government of the Cook
Islands on a basis of confidence by -
(i) the government of any other country or any agency of such a
government; or
(ii) any international organisation; or
(c) prejudice the maintenance of the law, including the prevention,
investigation, and detection of offences, and the right to a fair trial;
or
(d) endanger the safety of any person; or
(e) damage the economy of the Cook Islands by disclosing prematurely
decisions to change or continue Government economic or financial policies
relating to -
(i) the regulation of banking or credit;
(ii) taxation;
(iii) the stability, control, and adjustment of prices of goods and other
costs, and rates or wages, salaries, and other incomes;
(iv) the borrowing of money by the Government of the Cook Islands; and
(v) the entering into of overseas trade agreements.
7. Special reasons for withholding official
information related to New Zealand - Good reason for withholding
information exists for the purpose of section 5 of this Act, if the making
available of the information would be likely to prejudice -
(a) the security or defence of New Zealand;
(b) relations between the Governments of the Cook Islands and of New
Zealand; and
(c) the international relations of the Government of New Zealand.
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8. Other reasons for withholding official
information -
(1) Where this section applies, good reason for withholding official
information exists for the purpose of section 5 of this Act unless, in the
circumstances of the particular case the withholding of that information
is outweighed by other consideration which render it desirable, in the
public interest, to make that information available.
(2) Subject to sections 6, 7, 9 and 18 of this Act, this section applies
if, and only if, the withholding of the information is necessary to -
(a) protect the privacy of natural persons, including that of deceased
natural persons; or
(b) protect information where the making available of the information -
(i) would disclose a trade secret; or
(ii) would be likely unreasonably to prejudice the commercial position of
the person who supplied or who is the subject of the information; or
(c) protect information which is subject to an obligation of confidence or
which any person has been or could be compelled to provide under the
authority of an Act, where the making available of the information -
(i) would be likely to prejudice the supply of similar information, or
information from the same source, and it is in the public interest that
such information should continue to be supplied; or
(ii) would be likely otherwise to damage the public interest; or
(d) avoid prejudice to measures protecting the health or safety of members
of the public; or
(e) avoid prejudice to the substantial economic interests of the Cook
Islands or
(f) avoid prejudice to measures that prevent or mitigate material loss to
members of the public; or
(g) maintain the constitutional conventions for the time being which
protect -
(i) the confidentiality of communications by or with the Sovereign or Her
representative;
(ii) collective and individual ministerial responsibility;
(iii) the political neutrality of officials;
(iv) the confidentiality of advice tendered by Ministers of the Crown and
officials; or
(h) maintain the effective conduct of public affairs through -
(i) the free and frank expression of opinion by or between or to Ministers
of the Crown or member or an organisation or officers and employees of any
Ministry or organisation in the course of their duty; or
(ii) the protection of such Ministers, members of organisations, officers,
and employees from improper pressure or harassment; or
(i) maintain legal professional privilege; or
(j) enable a Minister of the Crown or any Ministry or organisation holding
the information to carry out, without prejudice or disadvantage,
commercial activities; or
(k) enable a Minister of the Crown or any Ministry or organisation holding
the information to carry on, without prejudice or disadvantage,
negotiations (including commercial and industrial negotiations); or
(l) prevent the disclosure or use of official information for improper
gain or improper advantage.
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9. Information concerning existence of
certain information - Where a request under this Act relates to
information to which section 6 or section 7 or section 8(2)(b) of this Act
applies, or would if it existed apply, the Ministry or Minister of the
Crown or organisation dealing with the request may, if it or he is
satisfied that the interest protected by section 6 or section 7 or section
8(2)(b) of this Act would be likely to be prejudiced by the disclosure of
the existence or non-existence of such information, give notice in writing
to the applicant that it or he neither confirms nor denies the existence
or non-existence of that information.
10. Exclusion of public interest immunity -
(1) Subject to subsection (2) of this section, the rule of law which
authorizes or requires the withholding of any document, or the refusal to
answer any question, on the ground that the disclosure of the document or
the answering of the question would be injurious to the public interest
shall not apply in respect of -
(a) any investigation by or proceedings before the Ombudsman; or
(b) any application for the prerogative writs of certiorari, mandamus or
injunction sought in respect of any decision under this Act,
but not so as to give any party any information that he or she would not,
apart from this section, be entitled to.
(2) Nothing in subsection (1) of this section affects -
(a) section 34 of this Act; or
(b) section 17 of the Ombudsman Act 1984.
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PART 2
REQUESTS FOR ACCESS TO OFFICIAL INFORMATION
11. Requests -
(1) Any qualified person may request a Ministry or Minister of the Crown
or organisation to make available to him or her or it, any specified
official information.
(2) The official information requested shall be specified with due
particularity in the request.
(3) If the person making the request asks that his request be treated as
urgent, he shall give his reasons for seeking the information urgently.
12. Assistance - It is the duty of every
Ministry, Minister of the Crown, and organisation to give reasonable
assistance to a person, who -
(a) wishes to make a request in accordance with section 11 of this Act; or
(b) in making a request under section 11 of this Act, has not made that
request in accordance with that section; or
(c) has not made his or her request to the appropriate Ministry or
Minister of the Crown or organisation,
to make a request in a manner that is in accordance with that section or
to direct his or her request to the appropriate Ministry or Minister of
the Crown or organisation.
13. Transfer of requests - Where -
(a) a request in accordance with section 11 of this Act is made to a
Ministry or Minister of the Crown or organisation; and
(b) the information to which the request relates -
(i) is not held by the Ministry or Minister of the Crown or organisation
but is believed by the person dealing with the request to be held by
another Ministry or Minister of the Crown or organisation; or
(ii) is believed by the person dealing with the request to be more closely
connected with the functions of another Ministry or Minister of the Crown
or organisation, -
the Ministry or Minister of the Crown or organisation to which the request
is made shall promptly, and in any case not later than 10 working days
after the day on which the request is received, transfer the request to
the other Ministry or Minister of the Crown or organisation, and inform
the person making the request accordingly.
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14. Decisions on requests -
(1) Subject to this Act, the Ministry or Minister of the Crown or
organisation to whom a request is made in accordance with section 11 or is
transferred in accordance with section 13 of this Act shall, as soon as
reasonably practicable, and in any case not later than 20 working days
after the day on which the request is received by that Ministry or
Minister of the Crown or organisation, -
(a) decide whether the request is to be granted and, if it is to be
granted, in what manner and for what charge (if any); and
(b) give or post to the person who made the request, notice of the
decision on the request.
(2) Every Ministry or Minister of the Crown or organisation (including an
organisation whose activities are funded in whole or in part by another
person) may charge for the supply of official information under this Act.
(3) Any charge fixed shall be reasonable and regard may be had to the cost
of the labour and materials involved in making the information available
to, and to any costs incurred pursuant to, a request of the applicant to
make the information available urgently.
(4) The Ministry or Minister of the Crown or organisation may require that
the whole or part of any charge be paid in advance.
(5) Where a request in accordance with section 11 of this Act is made or
transferred to a Ministry, the decision on that request shall be made by
the permanent head of that Ministry or an officer or employee of that
Ministry authorized by that permanent head unless that request is
transferred in accordance with section 13 of this Act to another Ministry
or to a Minister of the Crown or to an organisation.
(6) Nothing in subsection (5) of this section prevents the permanent head
of a Ministry or any officer or employee of a Ministry from consulting a
Minister of the Crown or any other person in relation to the decision that
the permanent head or officer or employee proposes to make on any request
made to the Ministry in accordance with section 11 of this Act or
transferred to the Ministry in accordance with section 13 of this Act.
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15. Extension of time limits -
(1) Where a request in accordance with section 11 of this Act is made or
transferred to a Ministry or Minister of the Crown or organisation, the
permanent head or that Minister of the Crown or that organisation may
extend the time limit set out in section 13 or section 14(1) of this Act
in respect of the requests if -
(a) the request is for a large quantity of official information or
necessitates a search through a large quantity of information and meeting
the original time limit would unreasonably interfere with the operations
of the Ministry or the Minister of the Crown or the organisation; or
(b) consultations necessary to make a decision on the request are such
that a proper response to the request cannot reasonably be made within the
original time limit.
(2) Any extension under subsection (1) of this section shall be for a
reasonable period of time having regard to the circumstances.
(3) The extension shall be effected by giving or posting notice of the
extension to the person who made the request within 20 working days after
the day on which the request is received.
(4) The notice effecting the extension shall -
(a) specify the period of the extension; and
(b) give the reasons for the extension; and
(c) state that the person who made the request for the official
information has the right, under section 30(3) of this Act, to make a
complaint to an Ombudsman about the extension; and
(d) contain such other information as is necessary.
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16. Documents -
(1) Where the information requested by any person is comprised in a
document, that information may be made available in one or more of the
following ways -
(a) by giving the person a reasonable opportunity to inspect and copy the
document; or
(b) by providing the person with a copy of the document; or
(c) in the case of a document that is an article or thing from which
sounds or visual images are capable of being reproduced, by making
arrangements for the person to hear or view those sounds or visual images;
or
(d) in the case of a document by which words are recorded in a manner in
which they are capable of being reproduced in the form of sound or in
which words are contained in the form of shorthand writing or in codified
form, by providing the person with a written transcript of the words
recorded or contained in the document; or
(e) by giving an excerpt or summary of the contents; or
(f) by furnishing oral information about its contents.
(2) Subject to section 17 of this Act, the Ministry or Minister of the
Crown or organisation shall make the information available in either way
preferred by the person requesting it unless to do so would -
(a) impair efficient administration; or
(b) be contrary to any legal duty of the Ministry or Minister of the Crown
or organisation in respect of the document; or
(c) prejudice the interests protected by section 6 or section 7 or section
8 of this Act and (in the case of the interests protected by section 8 of
this Act) there is no countervailing public interest.
(3) Where the information is not provided in the way preferred by the
person requesting it, the Ministry or Minister of the Crown or
organisation shall, subject to section 9 of this Act, give to that person
in writing -
(a) the reason for not providing the information in that way; and
(b) if that person so requests, the grounds in support of that reason,
unless the giving of those grounds would itself prejudice the interests
protected by section 6 or 7 or section 8 of this Act and (in the case of
the interests protected by section 8 of this Act) there is no
countervailing public interest.
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17. Deletion of information from documents
-
(1) Where the information requested is comprised in a document and there
is a good reason for withholding some of the information contained in that
document, the other information in that document may be made available by
making a copy of that document available with such deletions or
alterations as are necessary.
(2) Where a copy of a document is made available under subsection (1) of
this section, the Ministry or Minister of the Crown or organisation shall,
subject to section 9 of this Act, give to the applicant in writing -
(a) the reason for withholding the information; and
(b) if the applicant so requests, the grounds in support of that reason,
unless the giving of those grounds would itself prejudice the interests
protected by section 6 or section 7 or section 8 of this Act and (in the
case of the interests protected by section 8 of this Act) there is no
countervailing public interest.
18. Refusal of requests - A request made in
accordance with section 11 of this Act may be refused only for one or more
of the following reasons, namely -
(a) that, by virtue of section 6 or section 7 or section 8 of this Act,
there is good reason for withholding the information;
(b) that, by virtue of section 9 of this Act, the Ministry or Minister of
the Crown or organisation does not confirm or deny the existence or
non-existence of the information requested;
(c) that the making available of the information requested would -
(i) be contrary to the provisions of any Act; or
(ii) constitute contempt of Court or of Parliament;
(d) that the information requested is or will soon be publicly available;
(e) that the document alleged to contain the information requested does
not exist or cannot be found;
(f) that the information requested cannot be made available without
substantial collation or research;
(g) that the information requested is not held by the Ministry or Minister
of the Crown or organisation and the person dealing with the request has
no grounds for believing that the information is either -
(i) held by another Ministry or Minister of the Crown or organisation; or
(ii) connected more closely with the functions of another Ministry or
Minister of the Crown or organisation;
(h) that the request is frivolous or vexatious or that the information
requested is trivial.
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19. Requests involving substantial
collation or research -
(1) In deciding whether to refuse a request under section 18(f), the
Ministry, Minister of the Crown, or organisation must consider whether
doing either or both of the following would enable the request to be
granted -
(a) fixing a charge under section 14;
(b) extending the time limit under section 15.
(2) For the purposes of refusing a request under section 18(f), the
Ministry, Minister of the Crown, or organisation may treat as a single
request 2 or more requests from the same person -
(a) that are about the same subject matter or about similar subject
matters; and
(b) that are received simultaneously or in short succession.
20. Duty to consider consulting person if
request likely to be refused under section 18(e) or (f) - If a request is
likely to be refused under section 18(e) or (f), the Ministry, Minister of
the Crown, or organisation must, before that request is refused, consider
whether consulting with the person who made the request would assist that
person to make the request in a form that would remove the reason for the
refusal.
21. Reason for refusal to be given - Where
a request made in accordance with section 11 of this Act is refused, the
Ministry or Minister of the Crown or organisation, shall, -
(a) subject to section 9 of this Act, give to the applicant in writing -
(i) the reason for its refusal; and
(ii) if the applicant so requests, the grounds in support of that reason,
unless the giving of those grounds would itself prejudice the interests
protected by section 6 or section 7 or section 8 of this Act and (in the
case of the interests protected by section 8 of this Act) there is no
countervailing public interest; and
(b) give to the applicant information concerning the applicant's right, by
way of complaint under section 30 of this Act to the Ombudsman, to seek an
investigation and review of the refusal.
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PART 3
PUBLICATION OF, AND ACCESS TO, CERTAIN DOCUMENTS AND INFORMATION
22. Publication setting out functions of
Ministries and organisations -
(1) The Office of the Prime Minister shall cause to be published, not
later than the 1st May 2008, a publication that includes in respect of
each Ministry and each organisation, -
(a) a description of its structure, functions, and responsibilities
including those of any of its statutory officers or advisory committees;
and
(b) a general description of the categories of documents held by it; and
(c) a description of all manuals, and similar types of documents which
contain policies, principles, rules, or guidelines in accordance with
which decisions or recommendations are made in respect of any person or
body of persons in his or her or its personal capacity; and
(d) a statement of any information that needs to be available to members
of the public who wish to obtain official information from the Ministry or
organisation, which statement shall include particulars of the officer or
officers to whom requests for official information or particular classes
of information should be sent.
(2) The Office of the Prime Minister shall, at intervals of not more than
2 years, bring the material contained in the publication published under
subsection (1) of this section up to date either by publishing a new
edition of that publication or by publishing supplementary material.
(3) In complying with subsection (2), the Office of the Prime Minister may
publish a new edition or supplementary material on an internet website and
in an electronic form that is publicly accessible at all reasonable times,
so long as the Office also publishes that edition or material in any other
manner and form that is necessary in light of the need specified in
subsection (5).
(4) Each Ministry and each organisation shall assist the Office of the
Prime Minister to comply with subsections (1) and (2) of this section and
shall supply to that Office such information as it requires for the
purposes of those subsections.
(5) In complying with subsection (1) and (2) of this section, the Office
of the Prime Minister shall have regard, among other things, to the need
to assist members of the public to obtain official information and to
effectively exercise their rights under this Act.
(6) Where there is good reason under section 6 or section 7 or section 8
(2)(b) of this Act for withholding official information, nothing in this
section requires the publication of that official information.
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23. Right of access to certain official
information -
(1) Every person has a right to and shall, on request made under this
subsection, be given access to the latest edition of the publication
published under section 22 of this Act and to any published supplementary
material bringing that edition up-to-date.
(2) Every qualified person has a right to and shall, on request made under
this subsection, be given access to any category of official information
that is declared by regulations made under this Act to be a category of
official information in respect of which a right of access exists.
(3) The giving of access to any official information to which subsection
(2) of this section applies shall be subject to the provisions of any
regulations made under this Act.
24. Right of access to internal rules
affecting decisions -
(1) Subject to section 6 (a) to (d), section 7, section 8 (2) (a), (b),
(c), (j), and (k), and section 9 of this Act and to subsections (2) and
(6) of this section, every qualified person has a right to and shall, on
request made under this section, be given access to any document
(including a manual) which is held by a Ministry or Minister of the Crown
or organisation and which contains policies, principles, rules, or
guidelines in accordance with which decisions or recommendations are made
in respect of any person or body of persons in his or its personal
capacity.
(2) Section 11(2) and (3), 12 to 15, and 21 of this Act shall apply with
all necessary modifications, to a request made under subsection (1) of
this section.
(3) Where, by virtue of any of the provisions of section 6(a) to (d),
section 7, section 8 (2)(a), (b), (c), (i) and (j) of this Act, there is a
good reason for withholding some of the information contained in a
document to which subsection (1) of this section relates, the Ministry or
Minister of the Crown or organisation shall, unless it is impracticable to
do so, either -
(a) make a copy of that document available with such deletions or
alterations as are necessary;
(b) provide another document stating the substance and effect of the
document except as it relates to the information withheld.
(4) Where a document is made available under subsection (3) of this
section, the Ministry or Minister of the Crown or organisation shall,
subject to section 9 of this Act, give to the applicant -
(a) the reason for withholding the information; and
(b) if the applicant so requests, the grounds in support of that reason,
unless the giving of those grounds would itself prejudice the interests
protected by section 6(a) to (d) or section 7 or section 8(2)(a), (b),
(c), (i) or (j) of this Act and (in the case of the interests protected by
section 8(2)(a), (b), (c), (i) or (j) of this Act) there is no
countervailing public interest.
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25. Right of access by person to reasons
for decisions affecting that person -
(1) Subject to section 6(a) to (d), section 7, section 8(2)(b) and 9 of
this Act and to subsections (2), (4) and (5) of this section where a
Ministry or Minister of the Crown or organisation makes, on or after the
date of coming into force of this Act a decision or recommendation in
respect of any qualified person being a decision or recommendation in
respect of that qualified person in his or its personal capacity, that
qualified person has the right to and shall, on request made within a
reasonable time of the making of the decision or recommendation, be given
a written statement of -
(a) the findings on material issues of fact; and
(b) subject to subsection (2) of this section, a reference to the
information on which the findings were based; and
(c) the reasons for the decision or recommendation.
(2) A reference to the information on which any findings were based need
not be given under subsection 1(b) of this section if -
(a) the disclosure of the information or of information identifying the
person who supplied it, being evaluative material, would breach an express
or implied promise -
(i) which was made to the person who supplied the information; and
(ii) which was to the effect that the information or the identity of the
person who supplied it or both would be held in confidence; or
(b) after consultation undertaken (where practicable) by or on behalf of
the Ministry or Minister of the Crown or organisation with a natural
person's medical practitioner, the Ministry or Minister of the Crown or
organisation is satisfied that -
(i) the information relates to that person; and
(ii) the disclosure of the information (being information that relates to
the physical or mental health of the person making the request under this
section) would be likely to prejudice the physical or mental health of
that person; or
(c) in the case of a natural person under the age of 18, the disclosure of
that information would be contrary to that person's interests; or
(d) the disclosure of that information (being information in respect of a
person who has been convicted of an offence or is or has been detained in
custody) would be likely to prejudice the safe custody or the
rehabilitation of that person.
(3) For the purposes of subsection (2) of this section, the term
"evaluative material" means evaluative or opinion material compiled solely
-
(a) for the purpose of determining the suitability, eligibility, or
qualifications of the person to whom the material relates -
(i) for employment or for appointment to office; or
(ii) for promotion in employment or office or for continuation in
employment or office; or
(iii) for removal from employment or office; or
(iv) for the awarding of contracts, awards, scholarships, honours, or
other benefits; or
(b) for the purpose of determining whether any contract, award,
scholarship, honour, or benefit should be continued, modified, or
cancelled; or
(c) for the purpose of deciding whether to insure any person or property
or to continue or renew the insurance of any person or property.
(4) Sections 11(3), 12 to 15 and 21 of this Act shall apply, with all
necessary modifications, to a request made under subsection (1) of this
section.
(5) Nothing in this section entitles any person to obtain a written
statement of advice given to the Sovereign or Her representative.
(6) In subsection (2)(b), medical practitioner means a health practitioner
who is registered with the Medical Council of the Cook Islands as a
medical practitioner pursuant to the provisions of the Medical and Dental
Practices Act 1976.
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PART 4
RIGHT OF ACCESS TO PERSONAL INFORMATION
26. Right of access to personal information
-
(1) Subject to this Part of this Act, to sections 9 and 52 of this Act,
and to subsection (2) of this section, every person has a right to and
shall, on request, be given access to any personal information which -
(a) is about that person; or
(b) is about a child of that person or a child who is under the legal
guardianship of that person; or
(c) is about someone who is under disability and for whom that person has
been appointed a trustee pursuant to Part XVII of the Cook Islands Act
1915; and
(d) is held in such a way that it can readily be retrieved.
(2) The right conferred by subsection (1) of this section may be exercised
only by a qualified person.
(3) Sections 11(3), 12 to 17, and 21 of this Act shall apply, with all
necessary modification, to a request made under subsection (1) of this
section.
(4) Where any person is given access to personal information under this
section, that person shall be advised of that person's right, under
section 28 of this Act, to request the correction of that information.
(5) Nothing in this section requires, or imposes any responsibility on,
any Ministry or Minister of the Crown or organisation to compile files or
data banks of personal information.
(6) In this section and in section 27, "child" means a person under the
age of 18 years.
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27. Precautions - Where a request is made
under section 26(1) of this Act, the Ministry or Minister of the Crown or
organisation -
(a) shall not give access to that information unless it or he or she is
satisfied concerning the identity of the person making the request; and
(b) shall ensure, by the adoption of appropriate procedures, that
information intended for a person is received -
(i) only by that person; or
(ii) where the request is made by an agent, parent, guardian or trustee of
the person, only by that agent, parent, guardian or trustee; and
(c) shall ensure that, where the request is made by an agent of the
person, the agent has the written authority of that person to obtain the
information or is otherwise properly authorised by that person to obtain
the information;
(d) shall ensure that, where the request is made by a legal guardian of
the person, the guardian has been appointed as such by a Court of
competent jurisdiction and that the order remains in effect;
(e) shall ensure that, where the request is made by a trustee of the
person, the trustee has been appointed as such by the High Court and that
the order remains in effect.
28. Correction of information -
(1) Every person who is given access under section 26(1) of this Act to
personal information may, by letter addressed to the Ministry or Minister
of the Crown or organisation, -
(a) request correction of the personal information where the person
believes that the information -
(i) is inaccurate; or
(ii) is incomplete and gives a misleading impression; and
(b) require that a notation be attached to the information indicating the
nature of any correction requested but not made.
(2) Where a Ministry or Minister of the Crown or organisation receives a
letter pursuant to subsection (1) of this section, it or he or she shall
inform the person by whom or by which the letter was sent of the action
taken by the Ministry or Minister of the Crown or organisation as a result
of the letter.
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29. Reasons for refusal of request for
personal information -
(1) A Ministry or Minister of the Crown or organisation may refuse to
disclose any personal information requested under section 26(1) of this
Act if, and only if, -
(a) the disclosure of the information would be likely to prejudice any of
the interests protected by section 6(a) to (d) or section 7 or section
8(2)(b) of this Act and (in the case of the interests protected by section
8(2)(b) of this Act) there is no countervailing public interest; or
(b) the disclosure of the information would involve the unwarranted
disclosure of the affairs of another person or of a deceased person; or
(c) the disclosure of the information or of information identifying the
person who supplied it, being evaluative material, would breach an express
or implied promise -
(i) which was made to the person who supplied the information; and
(ii) which was to the effect that the information or the identity of the
person who supplied it or both would be held in confidence; or
(d) the disclosure of the information would breach legal professional
privilege; or
(e) the request is frivolous or vexatious, or the information requested is
trivial.
(2) No reasons other than one or more of the reasons set out in subsection
(1) of this section justifies a refusal to disclose any personal
information requested under section 26(1) of this Act.
(3) For the purposes of subsection (1)(c) of this section, the term
"evaluative material" means evaluative or opinion material compiled solely
-
(a) for the purposes of determining the suitability, eligibility, or
qualifications of the person to whom the material relates for the awarding
of contracts, awards, or other benefits; or
(b) for the purpose of determining whether any contract, award, or benefit
should be continued, modified, or cancelled; or
(c) for the purpose of deciding whether to insure any person or property
or to continue or renew the insurance of any person or property.
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PART 5
REVIEW OF DECISIONS
Division 1
Decisions under Part 2 and section 9 of this Act
30. Functions of Ombudsman -
(1) It shall be a function of the Ombudsman to investigate and review any
decision by which a Ministry or Minister of the Crown or organisation -
(a) refuses to make official information available to any person in
response to a request made by that person in accordance with section 11 of
this Act; or
(b) decides, in accordance with section 16 or section 17 of this Act, in
what manner or, in accordance with section 14 of this Act, for what charge
a request made in accordance with section 11 of this Act is to be granted;
or
(c) imposes conditions on the use, communication, or publication of
information made available pursuant to a request made in accordance with
section 11 of this Act; or
(d) gives a notice under section 9 of this Act.
(2) It shall be a function of the Ombudsman to investigate and review any
decision by which the permanent head of a Ministry or an officer or an
employee of a Ministry authorised by its permanent head or a Minister of
the Crown or an organisation extends any time limit under section 15 of
this Act.
(3) An investigation and review under subsection (1) or subsection (2) may
be made by the Ombudsman only on complaint being made to the Ombudsman in
writing.
(4) If, in relation to any request made in accordance with section 11 of
this Act, any Ministry or Minister of the Crown or organisation fails
within the time limit fixed by section 14(1) of this Act (or, where that
time limit has been extended under this Act, within that time limit as so
extended) to comply with paragraph (a) or paragraph (b) of section 14(1)
of this Act, that failure shall be deemed, for the purposes of subsection
(1) of this section, to be a refusal to make available the official
information to which the request relates.
(5) Undue delay in making official information available in response to a
request for that information, shall be deemed, for the purposes of
subsection (1) of this section, to be a refusal to make that information
available.
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31. Application of Ombudsman Act 1984 -
(1) Except as otherwise provided by this Act, the provisions of the
Ombudsman Act 1984 shall apply in respect of investigations and other
proceedings carried out under this Part of this Act in respect of
decisions under Part 2 or section 9 of this Act as if they were
investigations carried out under the Ombudsman Act 1984.
(2) Nothing in sections 11 and 22 of the Ombudsman Act 1984 shall apply in
relation to any function or power conferred on the Ombudsman by this Act
or in relation to any proceeding, decision, recommendation, or act of the
Ombudsman under this Act.
32. Requirement of Ombudsman to be complied
with within certain period -
(1) Subject to this section, where, during the course of an investigation
under section 30 of this Act, of any decision of any Ministry or Minister
of the Crown or organisation, the Ombudsman, pursuant to any power
conferred on the Ombudsman by section 16 of the Ombudsman Act 1984,
requires that Ministry or Minister of the Crown or organisation to furnish
or produce to the Ombudsman any information or document or paper or thing
which relates to that investigation, that Ministry, Minister of the Crown,
or organisation shall, as soon as reasonably practicable, and in no case
later than 20 working days after the day on which that requirement is
received by that Ministry or Minister of the Crown or organisation, comply
with that requirement.
(2) Where any requirement to which subsection (1) of this section applies
is made to any Ministry or Minister of the Crown or organisation, the
permanent head of that Ministry or an officer or employee of that Ministry
authorised by that permanent head or that Minister of the Crown or that
organisation may extend the time limit set out in subsection (1) of this
section in respect of that requirement if -
(a) the requirement relates to, or necessitates a search through, a large
quantity of information or a large number of documents or papers or
things, and meeting the original time limit would unreasonably interfere
with the operations of the Ministry or the Minister of the Crown or the
organisation; or
(b) consultations necessary before the requirement can be complied with
are such that the requirement cannot reasonably be complied with within
the original time limit;
(c) the complexity of the issues raised by the requirement are such that
that requirement cannot reasonably be complied with within the original
time limit.
(3) Any extension under subsection (2) of this section shall be for a
reasonable period of time having regard to the circumstances.
(4) The extension shall be effected by giving or posting notice of the
extension to the Ombudsman within 20 working days after the day on which
the requirement is received.
(5) The notice effecting the extension shall -
(a) specify the period of the extension; and
(b) give the reasons for the extension; and
(c) contain such other information as is necessary.
(6) If any Ministry or Minister of the Crown or organisation fails, within
the time limit fixed by subsection (1) of this section (or, where that
time limit has been extended under subsection (2) of this section, within
that time limit as so extended) to comply with any requirement to which
subsection (1) of this section applies, the Ombudsman may report such
failure to the Prime Minister, and may thereafter make such report through
the Speaker to Parliament on the matter as the Ombudsman thinks fit.
(7) Notwithstanding anything in this section, the Ombudsman shall not, in
any report made under subsection (6) of this section, make any comment
that is adverse to any person unless the person has first been given an
opportunity to be heard.
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33. Procedure after investigation -
(1) Where, after making an investigation of a complaint made under section
30 of this Act, an Ombudsman is of the opinion -
(a) that the request made in accordance with section 11 of this Act should
not have been refused; or
(b) that the decision complained of is unreasonable or wrong or is
otherwise a decision to which subsection (1) or subsection (2) of section
19 of the Ombudsman Act 1984 applies, -
the Ombudsman shall, subject to subsection (3) of this section,
(c) report his or her opinion and his or her reasons therefore to the
appropriate Ministry or Minister of the Crown or organisation; and
(d) subject to section 34 of this Act, make such recommendation as he
thinks fit; and
(e) give to the complainant -
(i) a copy of his or her recommendations (if any); and
(ii) such other information as he or she thinks proper.
(2) The Ombudsman shall also send a copy of his or her report and
recommendations to such Minister of the Crown as he or she considers
appropriate.
(3) Notwithstanding anything in this section, the Ombudsman shall not, in
any report made under this section, make any comment that is adverse to
any person unless the person has been given an opportunity to be heard.
(4) Except as provided in subsection (1) of this section, nothing in
section 19 of the Ombudsman Act 1984 shall apply in respect of a decision
that may be investigated and reviewed under section 30(1) or section 30(2)
of this Act.
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34. Disclosure of certain information not
to be recommended - Where -
(a) the Prime Minister certifies that the making available of any
information would be likely to prejudice -
(i) the security or defence of the Cook Islands or the international
relations of the Government of the Cook Islands; or
(ii) any interest protected by section 7 of this Act; or
(b) the Attorney-General acting after consultation with the
Solicitor-General certifies that the making available of any information
would be likely to prejudice the prevention, investigation, or detection
of offences,
the Ombudsman shall not recommend that the information be made available,
but may recommend that the making available of the information be given
further consideration by the appropriate Ministry or Minister of the Crown
or organisation.
35. Recommendations made to the Ministry or
Minister of the Crown or organisation -
(1) Where a recommendation is made under section 33(1) of this Act to a
Ministry or to an organisation named in Schedule 1 -
(a) a public duty to observe that recommendation shall be imposed on that
Ministry or organisation from the commencement of the twenty-first working
day after the day on which that recommendation is made to the Ministry or
organisation unless, before that day, the Queen's Representative by Order
in Executive Council, otherwise directs; and
(b) the public duty imposed by paragraph (a) of this subsection shall be
imposed not only on the Ministry or organisation itself but also on -
(i) the members of the organisation and its governing body (if any); and
(ii) every officer and employee of that Ministry or organisation to whom
that recommendation is applicable; and
(iii) every body within that Ministry or organisation to whom that
recommendation is applicable; and
(iv) every statutory officer to whom that recommendation is applicable.
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(2) Where a recommendation is made under
section 33(1) of this Act to a Minister of the Crown, a public duty to
observe that recommendation shall be imposed on that Minister from the
commencement of the twenty-first working day after the day on which that
recommendation is made to that Minister unless, before that day, the
Queen's Representative by Order in Council, otherwise directs.
(3) As soon as practicable after an Order in Executive Council is made
under this section, the Minister who recommended the making of that Order
in Council shall give a copy of that Order to the Ombudsman who made the
recommendation.
(4) Nothing in this section prevents effect being given to any interim
order made by the High Court or to any declaration contained in any such
interim order.
36. Requirements in relation to Order in
Executive Council -
(1) Every Order in Executive Council made under section 35 of this Act
shall forthwith after it is made be published in the Gazette and shall be
laid before Parliament as soon as practicable after it is made.
(2) Every Order in Executive Council made under section 35 of this Act
shall set out the reasons for which it is made and the grounds in support
of those reasons.
(3) An Order in Executive Council made under section 35 of this Act in
relation to a recommendation made under section 33(1) of this Act may be
made for all or any of the reasons for the decision reviewed by the
Ombudsman (being reasons that were before the Ombudsman when the
recommendation was made) but for no other reasons.
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37. Right of review -
(1) Where -
(a) a recommendation is made under section 33(1) of this Act in respect of
a request made under section 11 of this Act; and
(b) an Order in Executive Council is made under section 35 of this Act in
respect of that recommendation,
the person who made that request may within 21 days of the publication of
the Order in the Gazette apply to the High Court for a review of the
making of that Order in Executive Council.
(2) An application under subsection (1) of this section may be made only
on the ground that the Order in Executive Council was beyond the powers
conferred by sections 35 and 36 of this Act or was otherwise wrong in law.
(3) On an application under subsection (1) of this section, the High Court
may -
(a) make an order confirming that the Order in Council laws were validly
made; or
(b) make an order declaring that the making of the Order in Council was
beyond the powers conferred by sections 35 and 36 of this Act or was
otherwise wrong in law.
38. Appeals - Any party to an application
under section 37 of this Act who is dissatisfied with any final or
interlocutory order in respect of the application may appeal to the Court
of Appeal and Part II of the Judicature Act 1980-81 shall apply to any
such appeal.
39. Complainant to be informed of result of
investigation - The Ombudsman after investigating a complaint made for the
purposes of section 30(3) of this Act shall inform the complainant, in
such manner and at such time as he or she thinks proper, of the result of
the investigation.
40. Restriction on application for review -
Where any person makes a request under this Act that official information
be made available to him or her and a decision to which section 30(1) or
section 30(2) of this Act applies is made in relation to that request,
that person shall not commence any proceedings in which that decision is
sought to be challenged, quashed, or called in question in any Court,
unless a complaint made by that person in respect of that decision has
first been determined under this Part of this Act.
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Division 2
Decisions under Part 3 and Part 4 of this Act
41. Application of Ombudsman Act 1984 -
(1) It shall be a function of the Ombudsman to investigate, pursuant to
the Ombudsman Act 1984, any decision made under Part 3 or Part 4 of this
Act -
(a) including any such decision made by -
(i) a Minister of the Crown; or
(ii) an organisation named in Schedule 1 to this Act; but
(b) not including a decision made under section 9 this Act in relation to
a request made under Part 3 or Part 4 of this Act.
(2) The provisions of section 32 of this Act, so far as they are
applicable and with the necessary modifications, shall apply in respect of
any requirement, made by any Ombudsman in the course of any investigation
conducted pursuant to subsection (1) of this section, whereby the
Ombudsman, pursuant to any power conferred on that Ombudsman by section 16
of the Ombudsman Act 1984 requires any Ministry or Minister of the Crown
or organisation to furnish or produce to that Ombudsman any information or
document or paper or thing which relates to that investigation.
(3) Where the Ombudsman, after making his or her investigation, forms an
opinion of the kind described in subsection (1) or subsection (2) or
subsection (3) of section 19 of the Ombudsman Act 1984 he or she shall,
subject to subsection (7) of this section, report his or her opinion to
the appropriate Ministry or Minister of the Crown or organisation, and may
make such recommendations as he or she thinks fit in accordance with
section 19(3) of the Ombudsman Act 1984.
(4) Where a report is made under subsection (3) of this section to a
Minister of the Crown, the Ombudsman shall request the Minister of the
Crown to notify the Ombudsman, within a specified time, of the steps (if
any) that the Minister proposes to take to give effect to the Ombudsman's
recommendations.
(5) If, within a reasonable time after the report is made under section
19(3) of the Ombudsman Act 1984 (as applied by subsection (3) of this
section), no action is taken which seems to an Ombudsman to be adequate
and appropriate, the Ombudsman, in his or her discretion, after
considering the comments (if any) made by or on behalf of any Ministry or
Minister of the Crown or organisation affected, may send a copy of the
report and recommendations to the Prime Minister, and may thereafter make
such report to Parliament on the matter as he or she thinks fit.
(6) The Ombudsman shall attach to every report sent or made under
subsection (5) of this section a copy of any comments made by or on behalf
of the Ministry or Minister of the Crown or organisation affected.
(7) Notwithstanding anything in this section, an Ombudsman shall not, in
any report made under this section, make any comment that is adverse to
any person unless the person has first been given an opportunity to be
heard.
(8) If, in relation to any request for official information made under
Part 3 or Part 4 of this Act, any Ministry or Minister of the Crown or
organisation fails within the time limit fixed by section 14(1) of this
Act (or, where that time limit has been extended under this Act, within
that time limit as so extended) to comply with paragraph (a) or paragraph
(b) of subsection 14(1) of this Act, that failure shall be deemed, for the
purposes of subsection (1) of this section, to be a decision made under
Part 3 or Part 4 of this Act.
(9) Undue delay in giving any person access to official information in
response to a request under Part 3 or Part 4 of this Act for access to
that information shall be deemed, for the purposes of subsection (1) of
this section, to be a decision made under Part 3 or Part 4 of this Act.
42. Saving in respect of Ombudsman Act 1984
- Except as expressly provided in this Act, nothing in this Act shall
derogate from or limit the functions of the Ombudsman under the Ombudsman
Act 1984.
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PART 6
REVIEW BY INDEPENDENT CONSULTANT
43. Appointment of independent consultant -
(1) The Prime Minister, acting with the concurrence of Cabinet, shall not
later than the 31st December 2010 and may from time to time thereafter
(but not more frequently than every three years) appoint an independent
person or persons (in subsection (2) of this section and in sections 44
and 45 referred to as the independent consultant) to carry out the
functions set out in sections 44 and 45 of this Act, such appointment to
be upon such terms and conditions including as to remuneration as shall be
determined by Cabinet.
(2) The independent consultant shall prepare a report on the matters
referred to in sections 44 and 45, such report to be presented to the
Prime Minister.
(3) The Prime Minister shall make copies of the independent consultant's
report publicly available immediately following receipt, and shall table
the same in Parliament forthwith if Parliament is in session and if
Parliament is not in session, shall table the report forthwith at the
commencement of the next ensuing session.
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44. Functions and powers of independent
consultant -
(1) The principal functions of the independent consultant appointed
pursuant to section 43 shall be -
(a) to review, as a first priority, the protection accorded to official
information by any Act with a view to seeing whether that protection is
both reasonable and compatible with the purposes of this Act;
(b) to define and review categories of official information with a view to
enlarging the categories of official information to which access is given
as a matter of right;
(c) to recommend the making of regulations prescribing -
(i) categories of official information to which access is given as a
matter of right; and
(ii) such conditions (if any) as it considers appropriate in relation to
the giving of access to any category of official information.
(2) The independent consultant shall also have the following functions -
(a) to keep under review the working of this Act and the manner in which -
(i) access is being given to official information; and
(ii) official information is being supplied;
(b) to recommend to any Ministry or Minister of the Crown or organisation
that that Ministry or Minister of the Crown or organisation make changes
in the manner in which it or he gives access to, or supplies, official
information or any category of official information;
(c) to receive and invite representations from members of the public, and
from Ministers of the Crown, Ministries and organisations, in relation to
any matter affecting access to or the supply of official information;
(d) to inquire into and report on the question whether this Act should be
extended to cover information held by bodies other than Ministries,
Ministers of the Crown, and organisations;
(e) to inquire generally into and report on any matter, including any law,
or any practice or procedure, affecting access to or the supply or
presentation of official information.
(3) The independent consultant shall also have such other functions as are
conferred on him or her by this Act or by any regulations made under this
Act.
(4) The independent consultant shall also have such other functions as are
reasonably necessary or expedient to enable him or her to carry out his or
her functions including power -
(a) to seek advice from the Ombudsman;
(b) to consult with and to receive reports from Ministries and
organisations on the problems encountered by Ministries and organisations
in the administration of this Act;
(c) to publish information relating to the access to or the supply of
official information.
(5) The independent consultant is not empowered -
(a) to investigate any decision in respect of which a complaint may be
made under Part 5 of this Act; or
(b) to inquire into any investigation conducted by the Ombudsman; but,
the fact that any such complaint has been made or that any such
investigation has been undertaken shall not limit or affect the power of
the independent consultant to carry out the kind of inquiry permitted by
this section or section 45 of this Act.
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45. Functions in respect of personal
information - The independent consultant shall have the following
functions in respect of personal information -
(a) to keep under review, and make recommendation on -
(i) the means and procedures by which persons may find out what personal
information relating to them is held by any Ministry or Minister of the
Crown or organisation; and
(ii) the steps to be taken both by a person and by a Ministry or Minister
of the Crown or organisation where personal information relating to that
person and held by that Ministry or Minister of the Crown or organisation
is believed by the person to be incorrect:
(b) to examine any existing or proposed powers of a Ministry or
organisation to require persons to supply information about themselves or
any other person and to express its view on whether those powers are fair
and reasonable:
(c) to inquire whether personal information held by any Ministry or
organisation is being used for purposes other than those for which it was
acquired and, if it considers that any such information is being so used,
to express a view on whether such use of the information is proper;
(d) to recommend means and procedures to prevent the improper use of the
personal information held by any Ministry or organisation.
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PART 7
MISCELLANEOUS PROVISIONS
46. Assistance of Crown Law Office - For
the purposes of ensuring compliance with this Act, the Crown Law Office
shall advise and assist any Ministry or organisation.
47. Regulations - The Queen's
Representative may from time to time, by Order in Executive Council, make
regulations for all or any of the following purposes -
(a) prescribing forms of applications and other documents required for the
purposes of this Act, or authorizing any person to prescribe or approve
such forms;
(b) providing the procedure for the service of notices and documents under
this Act;
(c) prescribing reasonable charges or scales of reasonable charges for the
purposes of this Act;
(d) providing for such matters as are contemplated by or necessary for
giving full effect to this Act and for its due administration.
48. Protection against certain actions - (
1) Where any official information is made available in good faith pursuant
to this Act -
(a) no proceedings, civil or criminal, shall lie against the Crown or any
other person in respect of the making available of that information, or
for any consequences that follow from the making available of that
information; and
(b) no proceedings, civil or criminal, in respect of any publication
involved in, or resulting from, the making available of that information
shall lie against the author of the information or any other person by
reason of that author or other person having supplied the information to a
Ministry or Minister of the Crown or organisation.
(2) The making available of, or the giving access to, any official
information in consequence of a request made under this Act shall not be
taken, for the purposes of the law relating to defamation or breach of
confidence or infringement of copyright, to constitute an authorization or
approval of the publication of the document or of its contents by the
person to whom the information is made available or the access is given.
49. Power to amend Schedule 1 by Order in
Executive Council - Where any Ministry or organisation named in Schedule 1
of this Act is abolished or any new Ministry or organisation is
established, or its name is altered, the Queen's Representative may by
Order in Executive Council, make such amendments to that Schedule as may
be necessary to give effect to the abolition, establishment, or
alteration.
50. Consequential amendment - The Race
Relations Act 1972 is amended in the manner indicated in Schedule 2 of
this Act.
51 Repeal - The Official Secrets Act 1951
is repealed.
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52. Savings -
(1) Nothing in this Act authorises or permits the making available of any
official information if the making available of that information would
constitute contempt of Court or of Parliament.
(2) Except as provided in sections 50 and 51 of this Act, nothing in this
Act derogates from -
(a) any provision which is contained in any other Act and which authorizes
or requires official information to be made available; or
(b) any provision which is contained in any other Act and in force
immediately before the date of coming into force of this Act and which -
(i) imposes a prohibition or restriction in relation to the availability
of official information; or
(ii) regulates the manner in which official information may be obtained or
made available; or
(c) any provision of any Order in Executive Council made under the
Commissions of Inquiry Act 1966 or of any other document under which a
commission of inquiry is appointed.
______________________
This Act is administered by the Office of
the Ombudsman
RAROTONGA, COOK ISLANDS: Printed under the
authority of the Government of the Cook Islands - 2008
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SCHEDULE 1
Ministries (including departments):
Agriculture
Audit Office
Crown Law Office
Cultural Development
Disaster Management Office
Education
Energy
National Environment Service
Finance and Economic Management
Financial Supervisory Commission
Foreign Affairs and Immigration
Human Resources
Health
Internal Affairs
Justice
Marine Resources
Meteorological Service
Ministerial Support Offices
National Library
Office of the Minister for Island Administration
Office of the Prime Minister
Parliamentary Services
Police
Public Service Commission
Transport
Waste Management
Works
Aitutaki Island Administration Office
Atiu Island Administration Office
Mangaia Island Administration Office
Manihiki Island Administration Office
Mauke Island Administration Office
Mitiaro Island Administration Office
Palmerston Island Administration Office
Penrhyn Island Administration Office
Pukapuka-Nassau Island Administration Office
Rakahanga Island Administration Office
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Organisations
Building Control Committee
Business Trade & Investment Board
Cook Islands Airport Authority
Cook Islands Government Property Corporation
Cook Islands Investment Corporation
Cook Islands Marine Board
Cook Islands National Superannuation Fund
Cook Islands Pearl Authority
Cook Islands Ports Authority
Cook Islands Price Tribunal
Cook Islands Tourism Marketing Corporation
Cultural and Historic Places Board
Higher Salaries Commission
Island Councils
Island Environment Authorities
Leases Approval Tribunal
Medical and Dental Council
National Arts Council
National Environment Council
Nursing Council
Parole Board
Price Tribunal
Public Expenditure Review Committee
Rarotonga Local Government
Remuneration Tribunal
Seafood Export Advisory Council
Liquor Licensing Authority
Te Aponga Uira O Tumutevarovaro
Transport Licensing Authority
Companies:
Any company in which 50% or more of the
shares are owned by the Crown.
________________
SCHEDULE 2
Consequential Amendment
Race Relations Act 1972: Section 13 (5) is
amended by deleting the words "the Official Secrets Act or"
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