Dunne on the Official Information Act

Retired politicians who are now outside the pressures and responsibilities of Parliament can give some good insights into topical issues.

The last National Government was strongly criticised, with good reason, for abusing the principles of the Official Information Act. Labour has already been criticised by a number of journalists for the disingenuous withholding of information.

Peter Dunne wrote recently about the OIA.


When it was passed in 1982, our Official Information Act was widely applauded and welcomed. It was seen as a positive step (at the height of Muldoonism) that would give the public much greater access to hitherto secret government information, thereby improving accountability by making government business and processes more transparent. Over the last thirty-odd years it has generally met its objective, although some major creaks are now starting to become obvious.

During my years in Parliament I worked with the Official Information Act (the OIA) extensively – and also in a variety of different roles. These included being a non-government MP seeking information about some aspect or other of government policy; or a Minister charged with providing such information; or, as an appellant to the Ombudsman urging the overturn of some obviously outrageous decision to deny my ever-so-reasonable request, or as a defendant urging the Ombudsman not to uphold a request to overturn a decision not to release certain information because of its sensitivity.

I came to know the OIA pretty well, and, as such, am reasonably well placed to offer some observations about its strengths and weaknesses.

While the role and purpose of the OIA is a fundamental part of our governance structure, the reality is that it is really only non-government politicians and the media, with an occasional irrelevant appearance from some or other otherwise unemployable graduate lawyer fancying themselves as a modern day Mr Haddock of A.P. Herbert fame, who get involved with the OIA. However, this is an issue where the often differing, but occasionally coinciding, interests of the media and the politicians do need to be taken into account and addressed. Our modern Mr Haddocks, though, can be ignored, and left to keep looking for real jobs.

The most obvious criticism of the OIA…

…is that governments, including the present one, can and do play games with it, either by denying or delaying the release of information on a technicality; treating requests so literally as to render them meaningless; or, releasing a swathe of documents at the most inconvenient of times – 3:00 pm on the Friday afternoon of a long weekend is the common classic example here.

I have always found such game playing to be petty and silly, and I think it should come to an end. Certainly, it was generally my practice as a Minister to pro-actively release all the major documents of a Budget or major policy decisions in my portfolios within a few weeks of their being made, and to indicate at the time of the policy announcement that such a release would be forthcoming. I do not recall the sky ever falling in as a consequence.

And then there is the scope of the OIA. There has long been criticism at the exclusion of Parliament, and in recent years, there have been questions raised about the exemption for agencies like the Crown Law Office. My view is clear. I see no reason why the Parliamentary Service should be excluded, but I do think Members of Parliament in their roles dealing with constituents and the public and as members of a political party should not be covered by the OIA.

Any citizen who seeks to approach an MP, as either a constituent or as an interested member of the public, is entitled to the unconditional assurance that their dealings with the MP will be absolutely protected from disclosure – a standard similar to the Catholic Church’s Seal of Confession, if you like. The provisions of other pieces of legislation such as the Privacy Act and the Protected Disclosures Act are important protections here as well.

Equally, political parties are not public bodies like government agencies, and therefore should not be subject to the OIA. But in many other areas of their activities MPs are already subject to various forms of accountability – their expenditure, for example – and there is no reason why these areas should not be subject to the OIA.

Similarly, while I do not think it fair or practical that the Courts, the Judiciary, or Crown Law should be subject to the OIA with regard to individual cases – for obvious reasons – nor should the details of legal advice provided to Ministers on specific matters under consideration at the time come within the OIA’s ambit, again for obvious reasons, a case can be made to allow for more sunlight in other areas, including when a matter has been resolved.

So what to do?

The OIA is a cornerstone of our public accountability structure, so it is important that it is seen credibly in that role. The perception of a genuine commitment to transparency is as important as the reality. It is not necessarily the case at present.

Therefore, it is time for a joint working party, involving the Ombudsman’s Office, the news media, and the politicians (not just the government of the day) to be convened to prepare a new OIA that upholds its original principles and the good things about the current legislation, but which also modernises its scope, processes, and, if possible, operating culture in the light of contemporary circumstances. And then we should commit in these rapidly changing times, to carrying out a similar review every five years.

 

18 Comments

  1. robertguyton

     /  February 19, 2018

    Hey! 🙂

  2. duperez

     /  February 19, 2018

    The information has to get out and Peter Dunne is the one to know.
    http://www.noted.co.nz/archive/listener-nz-2013/jane-clifton-peter-dunnes-gobsmacking-fall-from-grace/

  3. duperez

     /  February 19, 2018

    So according to Dunne, “The OIA is a cornerstone of our public accountability structure, so it is important that it is seen credibly in that role.” Which makes these interesting reading:

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11313041

    http://www.scoop.co.nz/stories/PA1411/S00159/did-collins-cover-up-slaters-oia-requests.htm

    https://fyi.org.nz/request/2019-number-of-coinciding-requests-for-oia-s

  4. Blazer

     /  February 19, 2018

    National gamed the O.I.A shamelessly.Labour may as well emulate them….its only…fair.

    • PartisanZ

       /  February 19, 2018

      Or, unfortunately, Labour may as well emulate them … they’re only … the same …?

  5. robertguyton

     /  February 19, 2018

    “Did Collins cover up Slater’s OIA requests?

    Disgraced former Cabinet Minister Judith Collins must explain why she appears to have tried to hide Official Information Act requests she fulfilled for Whale Oil blogger Cameron Slater, Labour MP Megan Woods says.

    “New documents obtained by Labour show Judith Collins did not log OIA requests from Cameron Slater that were completed by her office on December 21 2012 and February 12 2013.”

    Thanks, duperez – that’s very pertinent to discussions about Collins’ suitability for Opposition Leader.

  6. PartisanZ

     /  February 19, 2018

    At the risk of repeating myself …

    Secrecy … Which States through recent history have thrived on secrecy?

    Totalitarian States.

    But now our very own ‘democratic’, open, ‘free market’ State thrives on it … Go figure?

    Secrecy … a sure sign of Inverted Totalitarianism …

    State-Corporate-Capitalism … “Have monkey, will peanut” …

    Opposition Leader … unfortunately … is peanuts …

    • Kitty Catkin

       /  February 19, 2018

      We can’t have everyone knowing everything that goes on in any government.

  7. Alan Wilkinson

     /  February 19, 2018

    A pretty appalling view by Dunne that the OIA legitimately serves only the media and politicians. I actually find that disgusting.

    • Gezza

       /  February 19, 2018

      I didn’t see where he said that in his article. Can you identify the relevant part(s) you’re talking about?

      • Alan Wilkinson

         /  February 19, 2018

        While the role and purpose of the OIA is a fundamental part of our governance structure, the reality is that it is really only non-government politicians and the media, with an occasional irrelevant appearance from some or other otherwise unemployable graduate lawyer fancying themselves as a modern day Mr Haddock of A.P. Herbert fame, who get involved with the OIA. However, this is an issue where the often differing, but occasionally coinciding, interests of the media and the politicians do need to be taken into account and addressed. Our modern Mr Haddocks, though, can be ignored, and left to keep looking for real jobs.

      • Gezza

         /  February 19, 2018

        Nah, he’s just speaking in the context of having been a Minister or MP, & getting (& making) OIA requests in that capacity. We of course get them in government departments too, & we also had to handle digging out the policy development & Cabinet papers & all relevant documents involved with them for OIA requests to Ministers, & in the majority of cases that I recall requests for these were mostly from those he identifies.

        OIA requests to our department directly would usually be for access to departmental policy & procedures & could also come from them, plus lawyers, or associations, applicants and/or their chosen advocates.

        • Gezza

           /  February 19, 2018

          Oh – I beg your pardon Alan. I do see your issue with his sneer at people outside the little boxes of who he thinks are sufficiently worthy & knowledgeable to be able to make requests. Yes, gratuitous, arrogant, & deserving of criticism.