Dealing with a government department, local council or other public body can sometimes be frustrating.
A decision may appear unfair, information may be withheld, correspondence may go unanswered, or an agency’s process may simply not seem right.
In many of these situations, the Office of the Ombudsman provides an important avenue for independent review.
What is the Ombudsman?
The Ombudsman is an independent Officer of Parliament whose functions include investigating complaints about the administrative conduct of New Zealand public sector agencies.
The Ombudsman’s jurisdiction extends across a large part of central and local government, including government departments and ministries, Crown entities and state-owned enterprises, city, district and regional councils, tertiary institutions and school boards. The Ombudsman also performs specialist functions relating to matters such as official information, protected disclosures, places of detention and the rights of disabled people.
A central feature of the office is its independence. The Ombudsman is not part of the government agency being complained about and approaches complaints independently.
What can you complain about?
A person who believes they have been treated unfairly by a public sector agency may be able to complain to the Ombudsman.
Depending on the circumstances, a complaint might concern an administrative decision that appears unreasonable or unfair, a failure to properly consider relevant information, unreasonable delay, inadequate reasons for a decision, or an agency’s handling of a matter.
The Ombudsman generally expects a person to have first attempted to resolve the problem directly with the agency concerned. Many government agencies have their own internal complaints or review procedures, and these should usually be pursued before approaching the Ombudsman.
There are also limits to the Ombudsman’s jurisdiction. For example, the Ombudsman generally cannot investigate private individuals or companies, lawyers, Members of Parliament, court or tribunal decisions, or decisions made by a full council. Police conduct generally falls outside the jurisdiction as well, except in relation to official information matters.
Official Information Act complaints
One of the Ombudsman’s particularly important functions concerns requests made under the Official Information Act 1982 (OIA) and the Local Government Official Information and Meetings Act 1987 (LGOIMA).
If you have requested information from a government agency, Minister or local authority and are dissatisfied with the response, you may be able to complain to the Ombudsman.
This can include situations where:
- information has been refused;
- only part of the requested information has been provided;
- information has been withheld or redacted;
- the agency has taken too long to respond; or
- you otherwise believe the request has not been dealt with properly.
Official information legislation is based on the important principle that government information should generally be made available unless there is a proper legal reason for withholding it.
What can the Ombudsman do?
When a complaint is received, the Ombudsman first determines whether it falls within the office’s jurisdiction and whether it should be investigated.
Not every complaint requires a formal investigation. Some matters can be resolved through communication between the Ombudsman’s office, the complainant and the relevant agency.
Where an investigation proceeds, the Ombudsman can obtain relevant information and examine the circumstances surrounding the agency’s actions or decision.
At the conclusion of an investigation, the Ombudsman may form an opinion about whether the agency acted reasonably and fairly. Where problems are identified, the Ombudsman may recommend appropriate remedial action.
The Ombudsman does not operate in the same way as a court. The office cannot award damages or compensation and does not act as the complainant’s lawyer or advocate.
How can a barrister help?
Although it is possible to make an Ombudsman complaint without a lawyer, legal assistance can be valuable, particularly where the underlying issue is complicated, significant documents are involved, or the complaint concerns the proper exercise of statutory powers.
A barrister can begin by assessing whether the Ombudsman is actually the appropriate forum. This is important because some disputes are better addressed through an internal review, statutory appeal, judicial review, Privacy Commissioner complaint or other specialist process.
Where an Ombudsman complaint is appropriate, a barrister can help identify the real issues and present them clearly.
Government disputes frequently involve large amounts of correspondence and documentation. The strongest complaint is not necessarily the longest. It should explain what happened, identify the decision or conduct being challenged, set out why it was unreasonable or unfair, provide the relevant supporting evidence and state clearly what outcome is being sought.
A barrister can assist by reviewing the relevant legislation, correspondence, decisions and supporting documents and identifying whether the agency may have:
- misunderstood or misapplied the law;
- failed to consider relevant information;
- relied upon irrelevant considerations;
- adopted an unfair process;
- failed to provide adequate reasons;
- acted inconsistently;
- caused unreasonable delay; or
- reached a decision that appears unreasonable in the circumstances.
Assistance with OIA and LGOIMA complaints
Legal assistance can be particularly useful with official information disputes.
An agency withholding information should be able to identify a lawful basis for doing so. A barrister can examine the grounds relied upon, the nature of the information requested and the surrounding circumstances to determine whether there is a proper basis for challenging the refusal or redactions.
Sometimes the problem begins even earlier. A poorly framed information request may be unnecessarily broad or may fail to identify the information that is actually required. Legal assistance at the request stage can therefore sometimes avoid a dispute altogether.
Preparing the evidence
The Ombudsman’s current complaint process asks complainants to provide key dates, details of what happened, the steps already taken to resolve the matter, the outcome sought, and relevant documents such as correspondence, decisions and screenshots.
A barrister can organise this material into a coherent chronology and distinguish the documents that genuinely advance the complaint from those that add little.
Where the barrister is acting on behalf of the complainant, appropriate authority to act can also be provided.
Ombudsman complaint or court proceedings?
This can sometimes be the most important question.
The Ombudsman provides an accessible and independent complaints process, and making a complaint is free. But it is not a substitute for every legal remedy.
If a statutory appeal is available, or if a decision potentially requires urgent intervention by the courts, relying solely on an Ombudsman complaint may not be appropriate. The Ombudsman also notes that where a person has a right of appeal to a court or tribunal, an investigation may be unlikely.
Judicial review, for example, is fundamentally different from an Ombudsman complaint and may be appropriate where the legality of a public decision-making process needs to be challenged in the High Court.
Legal advice can therefore be valuable before choosing the avenue of redress.
Getting the complaint right from the beginning
A complaint to the Ombudsman does not need to be filled with legal terminology. What matters is that the relevant facts and issues are presented accurately, logically and persuasively.
For straightforward matters, an individual may be perfectly capable of making their own complaint. For more complicated or important disputes, however, obtaining legal advice can help ensure that the correct decision is challenged, the strongest grounds are identified, the relevant evidence is provided and alternative legal remedies are not overlooked.
A barrister can advise on the merits of the complaint, communicate with the relevant agency, prepare or assist with the Ombudsman complaint, respond to issues arising during the investigation, and advise on other legal options if the Ombudsman process cannot provide an adequate remedy.
For people who believe they have been treated unfairly by a government agency or local authority, the Office of the Ombudsman can provide an important mechanism for holding public decision-makers to account.
This article provides general information only and is not a substitute for legal advice about your particular circumstances.