The Fire Service has emailed a formal response, embedded below, to a request for their NZ suburbs dataset, which they call “NZ Localities”.
Rather than a direct refusal to fulfil the OIA request, the response offers two options:
- Sign the restrictive license agreement and the data will be supplied.
- Don’t sign the license agreement and the request will be denied under Sections 9(c) and 9(e) of the Official Information Act.
The first point to note is that the OIA offers no scope for an agency to make it’s fulfilment of an OIA request dependent on the requester signing an arbitrary license agreement created by the agency. To empower Government agencies in such a fashion would likely make the OIA useless for it’s intended purpose – not just for GIS data requests, but for all requests for any kind of information made under the Official Information Act.
We don’t need to speculate on the purposes of the OIA, as they’re clearly stated in Section 4:
The purposes of this Act are, consistently with the principle of the Executive Government’s responsibility to Parliament,—
(a) To increase progressively the availability of official information to the people of New Zealand 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 New Zealand:
(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.
In contradiction to Section 4, the license agreement offered by the Fire Service contains clauses explicitly designed to impede the availability of the requested information to the people of New Zealand.
Clause 2 prevents transfer of the license, except under restrictions listed in later clauses:
In consideration of the Licensee agreeing to the terms and conditions contained in this Agreement, the Licensor grants the Licensee a non-exclusive, non-transferable licence to use the Data, subject to the following terms and conditions.
Clause 4 requires constant Internet access:
Where the Data is required to be updated, at the sole discretion of the Licensor, such updates will be available twice yearly at www.fire.org.nz/data. Updates will be available on 1 May and 1 December each year. If there is no scheduled update, a notice to this effect will be posted at the above web address not less than 30 days prior to the relevant scheduled release date.
This is noteworthy, as Clause 10 requires the licensee to update their copy of the data when the Fire Service publishes a new version on their website:
Within 6 months of the release by the Licensor of an updated version of the Data the Licensee must cease using any previous version of the Data and commence use of the updated Data
80% of New Zealand households had Internet access in 2004. That figure may be nearer 90%-95% in 2009, but those without Internet access are still ‘people of New Zealand’.
Clause 9 is even sub-titled “Restrictions on use of the Data”. Those who sign the license agreement may not:
(a) Modify the Data. For the avoidance of doubt, this means that the vector data, names or SUFIs (Static or Stable Unique Feature Identifier) in the Data may not be changed or altered in any way, except that changes to the format of text and reprojection of the Data are allowed.
(b) Reverse engineer, disassemble or decompose or build a like or similar product.
(c) Sell, lease or otherwise provide or distribute the Data for commercial gain to third parties. For the avoidance of doubt, the Data may be distributed free of charge to third parties in accordance with clause 8
So assuming I refuse to sign this license agreement due to its onerous restrictions which contradict the OIA, that takes us to the parts of Section 9 referenced by the Fire Service.
Section 9-2-(c) is:
Avoid prejudice to measures protecting the health or safety of members of the public; or
It’s difficult to imagine how some digital map data of suburbs being freely used by the public of New Zealand might negatively impact the health or safety of the New Zealand public.
This suburb map data is presumedly derived from the general geographic knowledge of the New Zealand public, as captured by the New Zealand Fire Service and other agencies over the years. How can feeding data back to the public who originally defined the data risk the safety of that very same public?
[A quarrelsome person could argue the Fire Service impeding the distribution of this data as widely as possible does negatively impact the safety of members of the public: there's less chance a given member of the public will know the 'generally agreed' suburb name and geographic extent used by emergency services. But let's not go there further than this side-note.]
Section 9 -2-(e) is:
Avoid prejudice to measures that prevent or mitigate material loss to members of the public; or
There’s no indication what the Fire Service might be referring to here. Their response states the entire dataset has been paid for by government organisations, out of taxes, rates and presumedly fire levies:
The Information is a geospatial dataset built, managed and maintained by a consortium of public sector and local government agencies. The cost of compiling, managing and maintaining the Information is met from public funds appropriated for the purpose of supporting location verification for emergency response and postal addresses.
It’s difficult to imagine a scenario where returning very broad geographical knowledge derived from the general public can cause material loss to members of that public, assuming privacy considerations have been met.
Even granting the Fire Service’s interpretation of 9-2-(c) and 9-2-(e) apply, the first half of Section 9 emphasises that the public interest can outweigh the reasons available under Section 9 to refuse an OIA request:
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 considerations which render it desirable, in the public interest, to make that information available
So how is the public interest of relevance to this OIA request?
As any active member of the New Zealand GIS community will be aware, there is no standard and easily-available source of map data which defines New Zealand suburbs, as understood by the New Zealand public. Statistics New Zealand maintains a related (and easily available) dataset for census purposes, but that is not intended to be a definitive map of New Zealand suburbia: it is designed from the top-down to apply the nearest suburb-like name to a collection of statistical census units.
Comments I’ve received from people in the GIS industry suggest a significant number of decent-sized New Zealand organisations use the Fire Service suburb definitions in their own services and products. Thus the Fire Service data has evolved into a defacto standard, and it’s very much in the public interest for it to be made as widely available as possible.
