Charities Commission

Special reports

Any special reports produced by the Commission or of interest to the sector will be made available here as they are published.

Tuesday 28 November 2006

The Charities Commission provided a submission this month on Inland Revenue's discussion document, entitled Tax incentives for giving to charities and other non-profit organisations.

To view or download Inland Revenue's discussion document, click here (Word, 322KB - link opens in a new window)
To view or download our submission, click here (Word, 47KB - link opens in a new window)

Tuesday 21 November 2006

Public access to information or documents on the Charities Register: a draft policy approach

1. The Charities Commission Board is considering its approach for dealing with requests from charitable entities to restrict public access to certain details about them that normally would be available to the public on the Charities Register.
   
   
2. Before confirming its approach to this issue, the Commission would like your feedback on the proposed approach outlined below.  Feedback can be sent directly to Adrian Shields, at the Charities Commission, email adrian.shields@charities.govt.nz, or to PO Box 8072 Wellington. 
   
   
3. Please send any feedback by Thursday 18 January. The Board will consider this feedback before deciding on the approach it will adopt. All those who provide feedback will be informed of the approach that the Board decides to follow.  
   
   
4. Any approach adopted by the Commission will, during the actual process of registration, be considered and applied on a case-by-case basis, and in accordance with the facts the Commission is presented with.

Section 25(2): Statutory Context

5. Section 25(2) of the Act provides that:
   
   

   “The Commission may, on a request from an entity or on its own motion, prevent or restrict public access to any information or documents that relate to the entity if the Commission considers, in the public interest, that public access to that information or those documents should be prevented or restricted.”

6. The section states that decisions to prevent or restrict public access  (just called ‘restricting access’ in this paper) may be made ‘in the public interest’. The phrase ‘public interest’ is not defined in the Act.   The Board considers that this phrase should be interpreted by reference to its plain meaning, in light of the overall purpose of the Charities Act.  The Commission will also look at how this term has been used in other relevant legislation.
   
   
7. In considering what is in the public interest in restricting access to information the Commission’s functions, as outlined in section 10, provide guidance, particularly to:
   
   (a) promote public trust and confidence in the charitable sector;
   (b) encourage and promote the effective use of charitable resources;
   (f) ensure that the register of charitable entities is compiled and maintained;
   (i) to monitor entities and their activities to ensure that they continue to be qualified for registration.
   
   
8. In making decisions about the public availability of information on charitable entities, the Commission will also take into account the provisions of the Act that establish the register and set out what information is to be included on it.
   
   
9. Any person may request information held by the Charities Commission be released under the Official Information Act 1982. 

Process

10. There is no required form or process to be followed when an entity wishes to restrict public access to their details. Simply, a letter making such a request will be sufficient.
    
    
11. However, applicants wishing to restrict public access to information will need to provide reasons why. If the applicant believes there is a public interest to restrict public access to information on the Register, then the applicant will need to advise the Commission what the relevant interest is, and how the  restriction sought will promote that public interest. 
    
    
12. Section 24 of the Act outlines the contents of the Register. This section does not require the Register to contain any record of a request or an approval to restrict access to information.
    
    
13. If the request to restrict access to information accompanies an application to be registered, the decision on the request will be made and notified to the applicant before the entity is registered. This will allow the entity to decide, on the basis of the Commission’s decision relating to access to information, if it still wishes to be registered.

“Public Interest”

14. The Charities Act emphasises transparency and the public availability of information to “promote public trust and confidence in the charitable sector”. The content of sections 3, 10, and 24 of the Act create a presumption that information will be made publicly available on the Register. However, section 25 provides the opportunity to depart from the underlying principle of “availability” where this departure is considered to be ”in the public interest”.
    
    
15. Where the applicant identifies a relevant public interest that supports  restricting access to information, and that restriction is consistent with the functions of the Commission, the Commission can have some comfort in considering whether to allow the restriction.
    
    
16. The Commission considers that the following are relevant public interests that are consistent with the Board’s functions and that, on a case-by-case assessment, may justify restricting access to information for the purpose of:
    
    
    1. Maintaining the law, including preventing, investigating, and detecting offences, and the right to a fair trial;
       
    2. Ensuring the safety of any person;
    3. Protecting the health or safety of members of the public;
    4. Reducing the risk that the information could be used for improper gain or improper advantage;
    5. Reducing the opportunity for disclosure of information that may unreasonably prejudice the commercial position of the entity or person who supplied or who is the subject of the information; and
    6. Responding to any other interest that, on having regard to all the circumstances of the case, would be considered by the Board to be the public interest.
       
       
17. Where the applicant provides reasons that appear not to be consistent with the Commission’s functions, then the applicant will need to ensure that there is a reasonably clear and valid public interest to consider. In this case, the Commission will have to balance the public interest that justifies restricting access to information, with the public interest that exists in having the relevant information on the Register – ensuring transparency for the entity and for charities generally.
    
    
18. The Charities Commission has been actively engaging with the charitable sector in the lead up to registration, and has already received comments and examples from entities that are expressing concern about the public availability of information, particularly where that information has not previously been in the public domain.
    
    
19. Feedback is sought on your views of the interests relevant to the decision to withhold public access to information. The Commission would also appreciate your advice of any scenarios or examples that you may be considering, where withholding of public information may be an issue.  These examples are sought so the Commission can ensure its approach is both pragmatic and provides appropriate scope for any relevant public interest to be provided for. 

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