Restricting information/Te here mōhiohio
The Charities Act 2005 emphasises transparency and the availability of information about registered charities to "promote public trust and confidence in the charitable sector".
The Act requires information on the Charities Register to be available to the public. However, it also allows Charities Services to prevent the public from seeing information if it is in the "public interest" to do so. This is a high threshold. For example, there could be circumstances where it would be in the public interest not to show the name of an officer on the Register in order to protect his or her safety.
We do not publish date of birth or home address details of officers on the Charities Register. You do not need to apply to have these identifying details restricted from public view.
What information does the Register usually show about a charity?
Section 24 of the Charities Act says that the Register must show a registered charity's:
- Address for service
- Registration number
- Current officers, and all people who have been officers since the charity was first registered
- Rules documents
- Application details.
The Register must also show each annual return, financial statement and any updates filed by the charity.
Can information on the Charities Register be restricted from public view?
Yes. Section 25 of the Charities Act says that Charities Services may restrict public access to any information and documents on the Register “if it considers it in the public interest to do so”.
What does the phrase "public interest" mean?
The Charities Act does not define the phrase "public interest". We use its plain meaning, keeping in mind one of the purposes of the Act, "to promote public trust and confidence in the charitable sector", and that the Register is intended to allow the public to obtain information relating to the nature, activities, and purposes of charitable entities.
We consider that the transparency of information about charities is in the public interest and central to our function, and any “public interest” reason to withhold information must outweigh this consideration.
The following are some examples of public interests that may justify restrictions to information:
- Protecting the health or safety of members of the public and/or those involved in the charity
- For example, a women’s refuge may wish the names of officers and the physical location of the office restricted from public view.
- Recognising the privacy of volunteers and individuals who donate to charities
- For example, where donors give money to a charity on the condition that is anonymous, a charity may wish some details of their financials be withheld if they include details of the donor.
- Protecting the privacy of individuals employed by a charity
- For example, a charity may wish to withhold some details of related party transactions, key management personnel or employee related expenses in its financial statements, where they disclose the salary details of an individual staff member.
- Reducing the risk of information being used for improper gain or advantage, or for fraudulent purposes
- For example, a charity may wish to withhold the signatures of officers on documents, to prevent the improper or illegal use of those signatures.
- Reducing the opportunity for disclosure of information that may unreasonably prejudice the commercial position of the charity
- In general, the fact that a charity operates in a commercial or competitive environment (including a competitive grant funding environment) will not be sufficient to withhold information in financial statements. The charity must be able to demonstrate a clear link between making the information publicly available and an unreasonable prejudice to the charity’s commercial position.
For example, negotiating for the purchase of a business or other significant asset, and the disclosure of reserves and other related information would negatively affect the negotiations.
This is not an exhaustive list and Charities Services will consider any other interest that, in view of all the circumstances of the case, is assessed by Charities Services to be in the public interest.
What reasons are unlikely to be accepted for restricting financial information?
We are unlikely to accept the following reasons as a basis for restricting financial information:
- Potential embarrassment to the charity or anyone involved in the charity.
- That publication would expose the charity’s financial position.
- An assertion that there is no public interest in the financial performance of the charity, or that the charity does not receive public donations or grants, or any tax benefits from being registered, or has not carried out any activities, or that the charity wants the financial statements to be kept private within the charity and its members. Registered charities have access to certain benefits (including possible income tax exemptions and the ability to apply for grants). Therefore, there is a default presumption of public interest in making financial information about charities available.
- The fact that the information is technical or likely to be misunderstood or misinterpreted. Not-for-profit reporting standards have been written with a general audience in mind, so compliance with the standards would not likely to result in misunderstanding.
- The likelihood that the information will result in confusion or unnecessary debate.
- The financial statements are in draft form, or haven’t yet been audited.
- Officers of the charity haven’t yet had the opportunity to look at the information contained in the annual return form.
- The consolidated financial statements include sensitive commercial and trading information of a company that the charity has control over for financial reporting purposes. Where a charity controls a company, this company forms a part of the operations of the charity and is often a significant asset of (and income source for) the charity. It is therefore important that the consolidated financial statements are publicly available, to accurately reflect the complete operations of the charity.
- That publication will lead to other bodies or people asking the charity for funding.
We are also unlikely to grant a request to restrict information if it is already in the public arena – for example, if this information is already available on the Companies Office register or on your own website.
If you have a reason that you consider is in the "public interest", you can make a written request asking for your information to be restricted so the public cannot see it. Your written request must set out:
- what information you would like restricted
- why you think it is in the public interest to have it restricted
- evidence to support your request.
If you claim that there will be unreasonable prejudice to your charity's commercial position or reducing the risk of information for improper gain or advantage, you should:
identify the commercial activities of the charity that you want to protect
identify the specific information in your charity’s financial statements that you want withheld from the Charities Register
identify the specific prejudice or risk that would likely result to your charity’s commercial position if this information was included on the Charities Register
explain how the harm or prejudice will be caused by including the information on the Charities Register
explain how the prejudice or risk will be unreasonable in all the circumstances, keeping in mind that your charity received benefits from being registered, possibly including certain income tax exemptions and advantages that other non-charitable operators/competitors do not receive.
If you want information to be restricted from public access you should send us your request at the same time that your send us the information that the request relates to. This may be when you are applying for registration or when you are updating information already on the Register. The relevant forms have further information about what you need to do.
If you are updating information that is currently restricted from public access, you must ask for this information to remain restricted, if that is what you want.
If you are applying to withhold part of a document (for example, part of your charity’s financial statements or rules document), you must provide us with a complete (unedited) version of your document. If we agree to your request, you may need to provide an edited version of the document, omitting the relevant information, for the Register.
What happens if we do not agree to your request?
If we do not agree to your request, we will not put the information on the Register before talking to you about your options. These include:
- withdrawing your request
- changing your request so that only part of the information is restricted
- asking to discontinue the application process or asking to be deregistered as a charity
- seeking a judicial review of the decision in the High Court or make a complaint to the Ombudsman
See What you can do if you disagree with our decisions for more information.
Who will have access to restricted information on the Register?
Government - Legally, we must allow access to government agencies. For example, Inland Revenue and Statistics New Zealand may access your information even though it is not publicly available.
Official Information Act requests - Section 25 of the Charities Act does not limit the Official Information Act, so information held on the Register (even though it is not publicly available) could be accessed under the Official Information Act.
We consider requests made under the Official Information Act on a case-by-case basis, according to the criteria under that Act.