ODT editorial on secrecy and the OIA

Journalists use the Official Information Act extensively to try and get information out of national and local government sources, so know as well as anyone about the problems with the way the OIA is being abused by politicians.

Today’s ODT editorial looks at The perils of secrecy

Keeping secrets from the public — or as those guilty of that action would prefer to put it, withholding information for various, sometimes tenuous, reasons — is one of the first worrying steps towards that scourge of modern-day life: “fake news”.

Not so many years ago, reporters at this newspaper and other media outlets could simply pick up a phone and ask a burning question of the appropriate person at city hall, or the hospital or the university.

That is now happening less and less frequently. Instead, questions, submitted in writing, are vetted and — perhaps the same day but often a day or two later — an anodyne response is issued. That is the best-case scenario.

Politicians now often protect themselves from scrutiny by employing ex-journalists as a barrier.

In the worst-case, either the organisation leaves it a few days before saying it will not comment, or it plays fast and loose with the Official Information Act and cynically uses up the entire 20 working-day period allowed for in the Act before replying.

In a democratic nation like New Zealand — one widely vaunted overseas for its lack of institutional corruption — such pettiness and refusal to engage on matters of public interest is disgraceful. Where the public is paying, through rates or taxes, the salaries of those in the organisation doing the concealing, their actions are completely abhorrent.

These people who are actively working against transparency, who enjoy blocking the media, acting after all as the public’s advocates, are effectively walking roughshod over democracy.

Yes, and New Zealand’s democracy is much the poorer for it.

People are paid more to keep secrets than to uncover information.

Late last week there were several examples of flagrant obfuscation and obstruction from the Dunedin City Council.

In one case, the council is choosing not to answer questions which have been put to it by this newspaper for nearly a year about alleged bullying and other problems in its city property department. Despite Official Information Act requests, it is withholding a Deloitte report, saying it needs to protect privacy and also citing commercial sensitivity. Elected representatives and council staff all ran for cover when asked for comment. The ODT has now referred the matter to the Office of the Ombudsman.

On the same page of Friday’s newspaper, the city council refused to say what assets valued at $63 million it was planning to sell, again specifying commercial sensitivity as the reason. This also has been referred to the Ombudsman.

This sounds particularly stupid – how are they going to sell assets without saying what they are going to sell?

It is disgraceful that the ODT has to go to the Ombudsman on a regular basis in order to get information that should be the public’s as of right.

This refusal to engage is a very troubling development. Stalling, fudging and engaging in sophistry make any organisation look bad.

Of course, it is not just the DCC that plays these games — even the most simple public information can sometimes be very difficult to receive in a timely fashion from other Otago councils, the Southern District Health Board, the police, the University of Otago and, especially, the Government.

Especially the Government – or more accurately, Governments present and past, who have set a very poor example of refusing to engage and inform.

We need to stop this slide into secrecy before we have a New Zealand filled with nepotism and favouritism, undeserved privilege and injustice, one in which corruption is able to breed in dark, secret corners.

Lawyer Graeme Edgeler writes at Public Address: A Small Official Information Act Fix

A few days ago, TVNZ journalist Andrea Vance tweeted an Official Information Act response she had received from David Parker, the Attorney-General. Vance had sought information about workload and funding pressures on Crown Solicitors, something he had apparently taken an interest in while in opposition.

The response received advised that “the Attorney-General is not subject to the OIA in the performance of their Law Officer functions.” This is footnoted to an Ombudsman opinion that does not appear to be online. I’ve no reason to doubt it exists, although I think the argument is weak. I’m aware of another Ombudsman’s opinion (that is publicly available) that says that the Solicitor-General in performing her Law Officer functions is outside the OIA because the Office of Solicitor-General is not listed in the Ombudsman Act, or in the OIA, which I can accept. I’m not sure that it’s as clear for the Attorney-General. Ministers of the Crown are subject to the OIA in the performance of their ministerial functions, and I would have said that Attorney-General was exercising a ministerial function when acting as a Law Officer of the Crown.

That said, even the exclusion of the Solicitor-General for the OIA is a pretty big oversight.

I can’t imagine it was a conscious decision, but even if it was, it was wrong. The Solicitor-General is the Executive’s chief legal officer, and exercises all sorts of government power. There’s probably a lot of information that the Solicitor-General has that shouldn’t be made public, but that can be protected by the other grounds in the OIA, like legal professional privilege. There is no reason for a blanket exclusion.

So, with that in mind, I have drafted a short bill. It adds a short subparagraph to the definition of official information to provide that information held by the Attorney-General and Solicitor-General in the exercise of their function as Law Officers of the Crown is official information.

The problem here is that it requires a majority of politicians to force better compliance with the OIA.

Both Labour and the Greens have promised better transparency, but Labour seems to be doing the opposite.

21 Comments

  1. That bit about refusing but taking 20days….. thats MOH to a tee, never had one early.

  2. PartisanZ

     /  February 19, 2018

    Secrecy … which States through history have thrived on secrecy?

    Totalitarian States.

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

    Secrecy … a sure sign of Inverted Totalitarianism …

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

    • PartisanZ

       /  February 19, 2018

      Slightly improved version … Am monkey, will peanut …

  3. PartisanZ

     /  February 19, 2018

    Is this about … like … you have to fight your own government … to get information … about like … your own government …????

    We’re talking about the governments we ‘elect’, right? The governments that ‘represent’ us, correct? The governing people like us who we give permission to to govern us … yes?

  4. NOEL

     /  February 19, 2018

    To be fair a request to a pollie will always default to the department where the obstruction occurs.
    I like the proposal to have the Department bear the cost.
    I wonder how many retrospective requests would be have been answered instead of “to proceed with your request it is estimated to cost you 800 dollars”

  5. Alan Wilkinson

     /  February 19, 2018

    The carrots and sticks involved in the bureaucratic response need major adjustment. The Ombudsman should be empowered to award penalty costs against the bureaucracy for failure to provide an adequate response in a timely manner. It should be a defence for the bureaucracy if the information is already provided on their website and that should be the usual and accepted way of accessing it.

    • Gezza

       /  February 19, 2018

      Dunno if it’s still the case but the Ombudspersons Office used to be kept so chronically under-resourced even complaints took a long time to investigate, discuss with departments & reach a conclusion on.

  6. 2Tru

     /  February 19, 2018

    If you think there is excessive secrecy now, until the OIA it was treason to reveal government secrets. In my experience I think the openness has gone too far in some instances. The problem now is that some individuals and organisations use the OIA as a tool to disrupt legitimate activities that they disagree with, by lodging vexatious and repetitive requests for information designed to tie up resources. I was never aware of any deliberate attempt in my department to utilise the full 20 days, but it was obvious that sometimes the number of requests being lodged meant that 20 days was needed to also allow our ongoing work to be carried out. A different perspective depending on which side you are on.

    • Alan Wilkinson

       /  February 19, 2018

      Why does the Department need to hide so much information? Just make more publicly accessible and the number of requests and work to satisfy them will diminish accordingly.

      • Alan Wilkinson

         /  February 19, 2018

        The design default should be public and secret should be the exception. Requires major mind shift.

        • Gezza

           /  February 19, 2018

          Requires quite major initial, then maintenance, resourcing too, Alan.

          • Alan Wilkinson

             /  February 19, 2018

            Yes. As always draining the swamp requires a much bigger initial effort and investment than scrambling clear of the current alligator. However, with good design ongoing costs need not be major.

            • Gezza

               /  February 19, 2018

              In a country whose goverment departments get rehashed, downsized, reassigned restructured and generally mucked about with as ineptly & pointlessly as often as ours do while I agree with the concept I think that idea would turn into a disaster pretty quickly. I don’t think you’ve got any idea how much or what types of documents & communications have to be looked at & supplied to comply with official information requests.

              Our multiple restructurings got done by under CEO’s by people who’ve never handled OIA requests & never resource for them.

            • Alan Wilkinson

               /  February 19, 2018

              Of course. All changes can be botched, and bigger ones botched more bigly. Design should be done by the smartest people you can afford and they must be given all the information and necessary resources they need. It should also cover the implementation process to ensure least disruption and greatest opportunity to adapt and deal with problems arising.

            • Alan Wilkinson

               /  February 19, 2018

              When we completely rewrote and replaced the social welfare computer system I don’t recall that we ever missed a payment. That was due to a great working relationship with departmental staff as well as a top quality project contracting team. It cost $80M at the time (late 1980s) but was money well spent. A similar project at IRD at the same time cost twice that amount.

            • Alan Wilkinson

               /  February 19, 2018

              I just told you. The system was still running several decades later but by then (Rankin as HoD) departmental expertise was disastrously compromised and present and future cock-ups like yours inevitable.

          • PartisanZ

             /  February 19, 2018

            Remarkable and extraordinary though it is that such a thing be required, I favour a major mind shift towards freedom of information and transparency.

            Just like I favour a major mind shift towards something approximating or better than this non-representative democracy we have now …

  7. robertguyton

     /  February 19, 2018

    “That is now happening less and less frequently. Instead, questions, submitted in writing”
    Remember when John Key adopted this strategy?
    Snake.

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