Ministers using private email accounts

The issue of Ministers using private email accounts while doing their jobs was raised in Parliament yesterday, when Minister of Broadcasting Clare Curran struggled answering questions from National’s Melissa Lee – see Curran struggling with confidence and memory.

Melissa Lee: Does she use a personal email account or accounts to conduct any official business?

Hon CLARE CURRAN: From time to time, I have used my Gmail account. When using it, I adhere to my obligations as a Minister.

Melissa Lee: What Government business has she conducted via her Gmail account?

Hon CLARE CURRAN: To the best of my recollection, I haven’t used my—I’ve answered Official Information Act (OIA) responses and personal and parliamentary questions correctly, and, to the best of my recollection, you know, that’s what I’ve done.

Without being prompted on the Official Information Act Curran must have recognised it could come up.

Avoiding having to provide communications through OIA requests has previously been said to be a reason why a Minister might use a private email account. It is a serious issue if Ministers use private emails to deliberately avoid their OIA obligations.

The Speaker Trevor Mallard then made this comment:

SPEAKER: And I’m going to rule that the member, between the primary and the supplementary answer, certainly answered that to my satisfaction. I mean, I think all of us know that there’s no restriction on members or Ministers using Gmail accounts. I think all of us know that a large amount of the foreign affairs business of the previous Government was carried out by Gmail.

That’s alarming. Is there really no restriction on Ministers using private email accounts when doing their jobs?

This came up as far back as 2012 when Activists hacked McCully’s emails

Labour says revelations Foreign Affairs Minister McCully’s email account was hacked into is a wake-up call and raises serious questions about what was sent to the private address.

The Telecom Xtra account was broken into by international hackers’ collective Anonymous, potentially revealing sensitive Cabinet information and cable traffic from foreign posts.

McCully had asked that official emails be forwarded to that account while he was overseas in April last year.

Prime Minister John Key said he was aware of the breach and warned other ministers to be more careful, particularly about passwords.

Key didn’t seem to have a problem with McCully using a private account, just that he may have had an insecure password.

Interestingly:

Labour’s information technology spokeswoman Clare Curran said she was “bemused” to learn the minister was having emails forwarded to a private accounts.

“There are questions to be answered.”

If it was easier for the minister to access a private account when he was overseas, that was an issue that needed to be addressed by Parliament’s information technology department.

But it was concerning if there was another reason, she said.

“What sort of correspondence would be going on between a minister and officials through a private account that wasn’t subject to the Official Information Act?”

From time to time the Parliamentary email system was unable to be accessed, Curran said.

“(But) given he holds a ministerial position, is it sensible to be using another email account which is so obviously that you’re a minister?”

She was aware six years ago of the potential to use “a private account that wasn’t subject to the Official Information Act”, but on other matters, like having private meetings, Curran’s memory has been a bit suspect so maybe she forgot this by the time she became Minister of Broadcasting, Communications and Digital Media, Minister for Government Digital Services and Associate Minister of State Services (Open Government) – she lost the Digital Services and Open Government portfolios two weeks ago due to her indiscretions.

I’d be surprised if there are not clear guidelines if not rules by now on the use of email accounts by Ministers.

Security is an obvious issue, especially after McCully had his private email account hacked.

And security and transparency of email accounts has received international attention when Hillary Clinton’s emails were hacked and leaked to (successfully) try to derail her presidential campaign.

It pales in comparison to the email controversy surrounding former United States Secretary of State Hillary Clinton, during her 2016 presidential run against US President Donald Trump, but has raised similar questions over security and transparency of information.

https://www.stuff.co.nz/national/politics/106851077/embattled-minister-clare-curran-struggles-to-explain-using-personal-email-for-government-business

After that major security breach surely the new Zealand Parliament has ensured the our Ministers have secure email accounts to conduct their business.

And our Official Information Act was obviously on Curran’s mind yesterday. She referred to it indirectly and directly four times:

Hon CLARE CURRAN: From time to time, I have used my Gmail account. When using it, I adhere to my obligations as a Minister.

Hon CLARE CURRAN: To the best of my recollection, I haven’t used my—I’ve answered Official Information Act (OIA) responses and personal and parliamentary questions correctly…

Hon CLARE CURRAN: I worked with my office to ensure that I am responding appropriately to OIA requests and parliamentary questions.

Hon CLARE CURRAN: I have reviewed my processes with my office. I reassure that member that I’ve released information in accordance with the OIA.

And her final answer:

Hon CLARE CURRAN: As I’ve said, I have reviewed processes in my office, including with the former Government digital services.

I’m not sure what she means by “the former Government digital services”, but whoever runs email and communications systems for Ministers (and MPs), and whoever sets rules for communications and information storage for Ministers, surely must have secure systems and clear rules on use of email accounts.

I don’t know what official systems Ministers and MPs use for emailing. This from 2016 in Parliamentary Service defends blocking email between MP and Fairfax journalist:

Parliamentary Service told Hipkins the email he tried to forward was picked up by the secure system because he “sent it to a domain that does not use SEEMail” – in this case, Fairfax.

SEEMail is the agency used by Parliamentary Service for MPs and staff emails.

“SEEMail is an all of government secure messaging system that we subscribe to. SEEMail classified messages can only be sent to-from approved government departments and agencies,” Parliamentary Service wrote.

Their public email addresses must be in a different system too this.

They can’t just leave it to Ministers to do as they see fit.

Government says it has no plans to reform the Official Information Act

Concerns of abuse of the Official Information Act by Government Ministers have been growing for years.

Last December: Clare Curran is planning a few shake-ups

Broadcasting aside, Curran has also been given the newly created role as the Minister in charge of ‘open government’.

Falling under her Associate State Services portfolio it’s a natural fit for Curran who during her years in opposition was a loud campaigner for greater transparency.

She repeatedly criticised the National-led coalition for refusing to improve government practice in the area and for gaming the Official Information Act (OIA).

But, of course, when the shoe is on the other foot those strong views can sometimes mellow.

Curran was apparently “half-hearted” when asked by the Otago Daily Times if she agreed the OIA was being manipulated for political purposes but is clearer now that it has happened in the past, but won’t in the future.

How can she be sure that a Labour Minister won’t do the same thing a year or two down the line, once they’re feeling more secure in their power?

“Through better processes and protocols being in place that we all sign up to and agree to. I don’t think it is being made to agree to it (formally), it’s about a will and getting things right.”

To push through this change, she and Justice Minister Andrew Little will review the Act and previous recommendations from the Law Commission and the Ombudsman and take a policy to Cabinet.

While the final result may not be a major legislative change, Curran is supportive of a former Labour Private Member’s Bill that called for the Ombudsman to be given the power to fine departments and Minister’s offices that inappropriately withheld information.

Real change will take time, she says, with a culture shift within the public service needed.

“To change the way that advice is provided, to the way in which it is released to the public, is not something that can be turned around overnight.

“It’s hugely frustrating, it means that people feel there’s a deliberate attempt to keep every piece of information withheld from public scrutiny. That is the thing that has to be turned around.”

But it now appears that no review of the OIA will happen.

NZ Council for Civil Liberties: Disappointment as Government says it has no plans to reform the Official Information Act


Contrary to reporting last year, it seems that the Government currently has no plans to reform the Official Information Act.

At the time we wrote to Ministers Clare Curran and Andrew Little expressing our support for such a reform. We have finally had a response from Justice Minister Andrew Little that:

Although a review of the Official Information Act is not presently under consideration by the Government, such a review is possible at some point in the future.

Chairperson of the NZ Council for Civil Liberties, Thomas Beagle says:

We’re very disappointed that the Government won’t be reforming the OIA, it’s a vital tool in holding governments to account. The OIA has been steadily weakened over the years by both changes in how government works, and gaming of the law by Ministers and public servants.

Among other things, the Council would like to see serious consideration given to:

  • Further encouragement for extensive pro-active publication of documents.
  • Removing commercial sensitivity as a ground for withholding information, particularly for outsourced government services.
  • Giving the Office of the Ombudsman more resources and powers to enforce the Act.
  • Restricting the use of the “legal privilege” grounds to times when matters are actually before a court.
  • Reducing Ministerial interference with OIA requests.

We believe that the Official Information Act does need substantive reform, and that the reform process should include significant public consultation and participation. “The Official Information Act needs to be updated so that it can continue to be used to deliver open and transparent government in service of our democracy. We call upon the Government to reconsider its position and start the OIA reform process now,” says Thomas Beagle.

US poll: 74% believe in ‘deep state’

What is ‘deep state’? In the US, according to Wikipedia:

In the United States, the term “deep state“, describes a form of cabal that coordinates efforts by government employees to influence state policy without regard for democratically elected leadership.

Deep state was defined in 2014 by Mike Lofgren, a former Republican U.S. congressional aide, as “a hybrid association of elements of government and parts of top-level finance and industry that is effectively able to govern the United States without reference to the consent of the governed as expressed through the formal political process.”

In The Concealment of the State, professor Jason Royce Lindsey argues that even without a conspiratorial agenda, the term deep state is useful for understanding aspects of the national security establishment in developed countries, with emphasis on the United States. Lindsey writes that the deep state draws power from the national security and intelligence communities, a realm where secrecy is a source of power.

Alfred W. McCoy states that the increase in the power of the U.S. intelligence community since the September 11 attacks “has built a fourth branch of the U.S. government” that is “in many ways autonomous from the executive, and increasingly so.”

Probably a better question would be what degree of ‘deep state’ exists in the US (and in New Zealand).

Monmouth University Polling Institute: Public Troubled by ‘Deep State’

A majority of the American public believe that the U.S. government engages in widespread monitoring of its own citizens and worry that the U.S. government could be invading their own privacy. The Monmouth University Poll also finds a large bipartisan majority who feel that national policy is being manipulated or directed by a “Deep State” of unelected government officials. Americans of color on the center and left and NRA members on the right are among those most worried about the reach of government prying into average citizens’ lives.

As it stands right now, do you think that unelected or appointed officials in the federal government have too much influence in determining federal policy or is there the right balance of influence between elected and unelected officials?

  • Unelected or appointed officials have too much influence 60%
  • Right balance of influence between elected and unelected officials 26%
  • Don’t know 14%

Are you very familiar, somewhat familiar, or not familiar with the term Deep State as it applies to the federal government?

  • Very familiar 13%
  • Somewhat familiar 24%
  • Not familiar 63%

The term Deep State refers to the possible existence of a group of unelected government and military officials who secretly manipulate or direct national policy. Do you think this type of Deep State in the federal government definitely exists, probably exists, probably does not exist, or definitely does not exist?

  • Definitely exists 27%
  • Probably exists 47%
  • Total definitely/probably exists 74%
  • Probably does not exist 16%
  • Definitely does not exist 5%
  • Don’t know 5%

I would question whether there is ‘a cabal’ rather than different groups of people within government or the military who try to influence policy.

There are also many groups outside of US government trying to influence policy (like lobbying groups and companies), as well as all the politicians of course. So it’s a complex of competing interests.


I very much doubt that any group within the New Zealand military has any influence or attempt at influence beyond promoting their own military interests (which is what they should do).

I also doubt that there is a cabal inside our public service.

Definitions of cabal:

  • a secret political clique or faction
  • a small group of people who plan secretly to take action, especially political action
  • the contrived schemes of a group of persons secretly united in a plot (as to overturn a government); also : a group engaged in such schemes

I’m sure there are some public servants, and possibly groups of public servants, who try to influence policies, effectively in secret. But I doubt there is a secret group plotting to overturn the government.

To an extent it is the job of government advisers to advise the Government what to do, that is, influence policies.

The biggest problem here is secrecy – that withholding of information provided to our elected representatives from the public. This is more a problem with government MPs trying to keep advice to them secret, but they may be advised to do that by unelected officials.

Here in New Zealand the obvious antidote to secret manipulation or advice is transparency. So making the Official Information Act work as intended is important.

And this is a topical problem here, and not just with national government. From RNZ yesterday: Questions over tardy release of Auckland Council report:

Auckland Council senior executives stalled the release of a major report, for political convenience in a possible breach of official information law.

The study on the impact of moving the imported car trade away from Auckland was withheld from RNZ by the council for five months, and released only after intervention by the Ombudsman’s office.

The problem here isn’t a cabal trying to secretly run or take over the Government, but we do have problems with public servants generally in collusion with elected representatives try to manipulate public opinion and hide information from the public.

This isn’t ‘deep state’, but it is a significant concern.

 

Local councils failing to meet OIA obligations

The chief ombudsman has said that local councils are failing to meet their obligations under the Official Information Act.

RNZ:  Local councils slammed for failing to supply information

Chief Ombudsman Peter Boshier said councils are not meeting their responsibilities under the Local Government Official Information and Meeting Act and that some councils seem to resent having to be held accountable.

“The performance of many councils is disappointing. Local government is absolutely fundamental to democracy, and in that respect the need for accountability and supply of information is just as strong as it is with central government, and yet many local councils don’t see it that way.

“We will commence a better process of publicising our data on complaints, giving better guidance and encouraging an earlier dispute resolution process so ratepayers who often have legitimate complaints can get to the end of the journey earlier than before.”

Last year 248 complaints were received under the act, Mr Boshier said.

There was a mix of a failure to supply information and other queries about process, he said.

People wanted to know why a council came up with certain rates, what had happened at meetings, and follow up information, for example.

The whole idea of the act was to make sure there was accountability and so ratepayers could participate in democracy.

The Dunedin City Council was slammed in an ODT editorial on Monday – see ODT editorial on secrecy and the OIA

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.

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

Especially when the mayor and councillors campaigned on greater transparency. Politicians want transparency on successes, but want secrecy on failures and embarrassments – that’s a natural human trait, which is why the OIA is important to make sure they are transparent about everything, not just what they choose to reveal.

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.

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.

 

Official Information Act – reform, or just compliance?

Governments have tended to gradually get more tardy with complying with Official Information Act requests – if not deliberately obstructive.

The new Government has promised a review. Is reform needed? Or will ensuring that the current act is properly complied with be sufficient?

Slowness of supplying information on request is an issue of increasing concern, but quality information does sometimes take time to compile.

The key aim should be that making information available should largely be a civil servant procedure without manipulation or  interference from Ministers.

The key principle of that act is that “information shall be made available unless there is good reason for withholding it”:

5 Principle of availability

The question whether any official information is to be made available, where that question arises under this Act, shall be determined, except where this Act otherwise expressly requires, in accordance with the purposes of this Act and the principle that the information shall be made available unless there is good reason for withholding it.

A politician or their office not wanting awkward or embarrassing information made public is not a good reason.

ODT reporter Eileen Goodwin talked to the only surviving member of the Danks Committee that set out the principles of the Act that became law in 1982 – ‘Slippage’ affecting information Act

Ministers and officials need to “recommit” to the Official Information Act, but the law itself  need not be changed, Emeritus Prof Sir Ken Keith says. Sir Ken (80), of Wellington, is the only surviving original member of the Danks Committee that laid down the principles of the 1982 law.

It decreed information should be available unless there was good reason to hide it, and it should become progressively more available over time. Sir Ken said the Act fundamentally lived up to its promise, and maintains people forget how secretive things were before.

But there had been some “bad slippage”, he said, and officials needed to re-focus on the principles and purpose of the law.

So he thinks that the law is sound, but compliance with the principles and the law need improvement.

Dunedin South MP Clare Curran has promised to review the Act as part of her “open government” mandate as Associate State Services Minister.

It is not yet known how far the review will  go, but Ms Curran told online news outlet Newsroom she supported calls for the Ombudsman to be given the power to fine non-complying departments and ministers’ offices.

Fining non-complying Ministers may hit the right target.

Committee chairman Robin Williams, then chairman of the State Services Commission, knew he was making life difficult for officials, but pushed to make them accountable.

The late Dr Williams, a mathematician who had worked on the Manhattan Project, was a talented public servant and academic vice-chancellor whose achievements deserved to be more recognised, Sir Ken said.

“He was absolutely committed to the principle stated right at the beginning of the Act. The principle is that official information is to be available unless there is good reason to withhold it.”

Sir Ken said the law could possibly use some tinkering to bring it into the modern age, but the committee had shown some prescience.

“One of the skilful things we did in retrospect …  was to use the word information rather than documents.”

That is a useful word given the degree we have progressed into the electronic information age.

Dunedin journalist Elspeth McLean agrees culture change in the public service is needed for the law to work.

Mrs McLean said there was far too much interference from government ministers, and Labour was  as bad as National in that regard. A prolific user of the Act, Mrs McLean pursues many complaints about refusals of information through the Office of the Ombudsman.

Through the Ombudsman, she uncovered emails between the Ministry of Social Development and the former Minister’s office about her request for information about a controversial risk prediction model for children. One ministerial aide even bragged about the usefulness of so-called “free and frank Friday”, an allusion to a section of the Act often used to withhold information by claiming it was advice given in a free and frank manner.

Section 9 states ” the withholding of the information is necessary to…maintain the effective conduct of public affairs through…the free and frank expression of opinions by or between or to Ministers of the Crown or members of an organisation or officers and employees of any department or organisation in the course of their duty”.

A nine-page “risk assessment” had been written, which included a list of her unrelated roles and interests. While she appreciated the information about her was publicly available, the tactic made her  uncomfortable.

“You wonder what it would take for them to go a step further.”

She said it was a waste of money and overly intrusive.

Why should it matter who is asking for the information? It should simply be a matter of whether there was no good reason to withhold information.

The problems are not just with Ministers and their offices and departments. Reporting has changed.

When she returned to journalism in 2007 after a long time out of the industry, Mrs McLean looked forward to making use of a law that had not existed when she was a young reporter.

She was disappointed to find an atmosphere of defensiveness in which the Act was over-utilised for simple stories because reporters could not talk to ordinary staff in public organisations.

“Things got pushed through it that once  upon a time would have been answered in a simple interview.

“A legion of public relations staff prevented reporters from forming relationships and gaining an understanding of issues.”

Barriers have increased substantially (and deliberately) between reporters and ex-reporters who are now political PR protectors.

Chief Ombudsman Peter Boshier has made changes to speed up the handling of complaints, but Mrs McLean cautioned fast decisions were not always good ones. She has modest hopes for the new Government’s pledge to review the Act and be more open with information. She hoped it would usher in a system of proactively releasing often-requested documents.

A lot may depend on how much Clare Curran and Labour put into practice what they had pushed for when in Opposition.

There was nothing about the OIA in Laabour’s 100 day plan, nor in their coalition agreement with NZ First, but there was a commitment in the Labour-Green Confidence and Supply Agreement under ‘Fair Society’:

20. Strengthen New Zealand’s democracy by increasing public participation, openness, and
transparency around official information.

Labour doesn’t have much to say about information availability in their 2017 manifesto.

The Greens do: Open Government and Democracy Policy

From Key Principles:

7. Freedom of information and openness of government and its procedures are essential elements of a democracy.

From Specific Policy Points: 8. Cabinet decisions to be published 

People have a right to know what has been decided by Government, not just when it is announced, but soon after Cabinet has signed it off. The Green Party will:

  1. Ensure that Cabinet minutes and decisions are published on the internet within one month of each Cabinet meeting unless there is a pressing and valid reason not to publish.
  2. Publicise when decisions or minutes are withheld, including the reasons why, and ensure the ability to request a judicial review of such decisions. Further ensure that withheld information is published as soon as the risk subsides.

From Specific Policy Points: 9. Changes to the Official Information Act (OIA) 

It is vital that the political system is more open and accountable. The OIA needs to be
more effective so that people can access the information they want without lengthy
delays or censorship. The Green Party will:

  1. Support legal responsibilities and penalties for public servants to keep good
    records, and make sure staff have training in the proper implementation of the
    OIA.
  2. Require agencies to respond promptly to OIA requests and narrow the exclusion
    provisions to withhold important information. Ensure the security exclusion is
    only available where the issue has been reported to, and the exclusion
    approved by, the responsible Minister, and review the use of the commercial
    sensitivity exception in light of concerns that public organisations have become
    more market oriented.
  3. Require all OIA and Local Government Official Information and Meetings Act
    request responses to be published on a designated website seven days after
    they have been sent to the requester, operating similarly to the Parliamentary
    questions for written answer (QWA) system. All information will be published
    unless the requester asks that the information not be and the Ombudsman
    agrees, or it is not in the public interest to do so. This includes where privacy
    would be compromised.
  4. Ensure the Ombudsman has the resources needed to respond to all OIA
    complaints in a reasonable timeframe, and greater powers to censure agencies
    for non-compliance or lack of co-operation.
  5. Investigate removing the Cabinet and local government ‘veto’ power over an
    Ombudsman’s recommendations.
  6. Stop the practice of excluding application of the OIA to certain agencies, and
    bring Parliamentary Service under the OIA (while keeping in mind the resourcing
    constraints for opposition parties), with an exemption to protect communication
    between constituents and MPs and to protect opposition parties from
    government intervention.
  7. Remove charging for OIA requests and require costs to be met out of
    Departmental baselines with an exception for vexatious, excessive and frivolous
    requests.
  8. Ensure that, where information relates to a decision being made by a public
    body, the information is released as soon as possible, with consultation
    deadlines amended to facilitate maximum public participation wherever
    possible.
  9. Apply the changes above to the Local Government Official Information and
    Meetings Act as well.

I hope the Greens work with Curran and the Labour led government and push hard for ensuring better practices under the OIA.

 

Reform for Official Information act

It’s debatable whether the Official Information Act needs reforming, or if Government Ministers and officials need to be required to comply with the Act as it is. There has been creeping avoidance of complying properly with the Act over successive Governments.

Listener: Information wants to be free – why is the OIA an obstacle?

Chief Ombudsman Peter Boshier has been blunt: the advice that ministers receive from their officials has been deliberately dumbed down, as a consequence of the Official Information Act (OIA).

Its vital contribution to our freedom and governmental accountability has, over successive administrations, been undermined by fear. Subtle and even blatant political heavying from ministers and officials’ self-protective desire not to cause trouble have led state agencies to increasingly refrain from offering potentially contentious advice, because they know it will become public and embarrass them and/or their minister.

Another growing trend has been deliberately to delay compliance with an OIA request, or flat out deny it.

Boshier has reversed the latter trend in his two years in the role, partly by making it clear he will name and shame those who fail to co-operate in good faith with the OIA’s processes. But he’s right to say we need new leadership to restore the Act to full efficacy and public respect. In his briefing to the incoming Government, he has usefully clarified the law as it stands, and as he believes officials should adhere to it.

That suggests that the Act may be sufficient as it is as long as it is complied with.

The headline clarification is a presumption that all official information will be released, and released in a timely manner, unless there are special reasons not to.

A further one is that officials asked to release something under the OIA must not then ask their ministers whether they may do so. It is their obligation to release it unless exempted, and they are only duty-bound to tell ministers to avoid surprises.

Ministers shouldn’t be involved in decisions on what should be a process, not a choice.

Boshier is on the record as noting a culture of transparent Government has to start with strong leadership.

Some have called for the Ombudsman’s office to have stronger powers of coercion, including making serious non-compliance an imprisonable offence. But a better buttress to information freedom would be to automate Boshier’s newly elucidated presumption that all information can be released unless it would cause a serious mischief.

Why not a system where, by default, all background papers to a governmental decision are released automatically? This could perhaps happen after early consultations, but before legislative proposals are finalised. Rather than relying on people to request information, why not put the onus on a department or minister to seek, via the Ombudsman, permission not to release it?

It is, after all, our information.

The OIA came up in Parliament yesterday, with Brett Hudson questioning the Minister of Justice Andrew Little. Transcript (with bickering and diversion edited out):

9. BRETT HUDSON (National) to the Minister of Justice: What reform is he planning to make to the Official Information Act 1982?

Hon ANDREW LITTLE (Minister of Justice): The Act is almost 35 years old, and the public’s expectations about access to official information are greater now than ever before…the Official Information Act is the responsibility of the Minister of Justice. As stated in the Speech from the Throne, this Government will foster a more open and democratic society—

Brett Hudson: I raise a point of order, Mr Speaker. I just note that the Minister in his response claimed that the Act was under the responsibility of the Minister of Justice. I refer that Minister, and your good self, to the Department of the Prime Minister and Cabinet (DPMC) website, which is very clear in the delegations for the Associate Minister of State Services (Open Government) that all matters of official information and the Official Information Act are under the delegations for that Minister.

Mr SPEAKER: And I’m going to deal with that. It was a matter that was referred to because it was a question about where the question was going. The Act is administered by the Minister of Justice.

Brett Hudson: Under his planned reform, will it be the norm for the Chief Ombudsman to have to make a recommendation in order for documents to be released?

Hon ANDREW LITTLE: The approach that this Government has taken to official information is to look to the report of the Law Commission in 2012, which the previous Government did nothing about; the recommendations of the Chief Ombudsman in 2015, which the previous Government did nothing about; and to look to questions of attitude and behaviour, because that is the way we will change the effectiveness of the Official Information Act.

So will Little, Ardern and the government walk the walk and “to look to questions of attitude and behaviour, because that is the way we will change the effectiveness of the Official Information Act”, because the OIA ball is in their court.

 

Time to give a push for more open government

Bryce Edwards is being an open political activist, calling for support to “guide the new government” into being “more open with its information”.

Newsroom: It’s time to open up the Closed Government Act

Calling all journalists, academics, public servants, political activists, and members of the public who believe in the need for government to be more open with its information. We need to form a coalition to fix the Official Information Act (OIA).

It’s time for everyone who believes in reforming the OIA processes to join together and campaign to make that actually happen. Such a coalition could guide the new government in making the necessary changes so that New Zealand is once again a world leader in open government, the way we were in 1982 when the extraordinary act was introduced.

The OIA itself may still be fit for purpose, but the wider official information system desperately needs review, especially in the way that the act is adhered to by government. At the moment, it often functions more as the Closed Government Act.

Now is the perfect time to act. Whenever a new government is formed, it’s normally enthusiastic and idealistic about fixing problems in the system. And when it comes to problems with the OIA, the parties coming in from opposition are highly sensitive to its faults because they’ve been on the receiving end of governments keeping an overly-tight grip on information.

The parties making up the new coalition government have protested strongly against abuses of the OIA that occurred under National. So, hopefully they’ll want to prioritise some sort of review aimed at fixing the problems.

Clare Curran is the minister with responsibility for “Open Government”, as part of her role as Associate Minister for State Services. She has already committed her government to doing much better than the last government in terms of releasing information.

But in a recent interview with the Otago Daily Times’ Eileen Goodwin, Curran wasn’t very clear about whether any reform of the OIA would be forthcoming.

Hence the need to ‘guide’ the Government.

Instead, journalists are now leading the way in calls for reform. Newsroom’s Shane Cowlishaw has recently explored all of these issues in his must-read article, The OIA is broken, can it be fixed? He says, “the spirit of this law has dissolved in an air of contempt that has spread, like a stain, from the top down”.

Cowlishaw reflects on his own experiences as a journalist, noting the growth of government department spin-doctors, and saying that the “ever-growing mighty wall of ‘comms staff’ has seemingly forgotten its obligation to the public in a desire to protect its Ministers from embarrassment.”

The new government – as well as the opposition – need some constructive encouragement to take this key area of democracy very seriously and make sure it’s fit for purpose.

I’m keen to bring together participants, set up forums, and help establish a way for interested parties to come up with ideas about how to move ahead. At the very least, such a campaign could compile all the complaints and examples of how the OIA isn’t working, or is being thwarted and put everyone in touch who has an interest in OIA reform.

There’s a lot to consider. For example: Does the legislation need fixing, or just the way that the OIA is observed? Is there a need for a new Information Authority that would be responsible for overseeing the operation of the OIA, and teach government departments and the public how to use and adhere to it? Or is the Ombudsman’s Office best placed to carry out these functions? And is it resourced and empowered enough to fulfil such a role? Should there be stronger penalties for abuse of the OIA? Does the OIA need to be extended to Parliament, or at least to some of its agencies such as the Parliamentary Service?

The new coalition government has specifically made a commitment to “strengthen New Zealand’s democracy by increasing public participation, openness, and transparency around official information”. This wording is in the confidence and supply coalition agreement between Labour the Greens, and it could quite easily also be the stated focus of a new Campaign for Open Government.

Sounds like a worthwhile aim. As well as journalists and media it should get support from blogs from across the spectrum, as well as from other online forums.

If you’re interested, please get in touch. Contact me: bryce.edwards@vuw.ac.nz

 

Kelsey wins OIA battle in court against Government

In her fight against the Trans Pacific Partnership Jane Kelsey has battled Minister of Trade Tim Groser for the release of information under the Official Information Act. When Groser used a blanket refusal Kelsey and others took it to court, and the High Court has just ruled that Groser treated her applications improperly.

The full court ruling is here (PDF).

Summary of judgement:

[1] The applicants have sought judicial review of a decision of the Minister of Trade (the Minister) in which he refused to release to Professor Kelsey official information contained in eight categories of documents she requested under the Official Information Act 1982 (the Act). The information requested by Professor Kelsey concerns material associated with negotiations that have led to a multi-lateral free trade agreement called the Trans-Pacific Partnership Agreement (TPP Agreement).

[2] When the Minister refused Professor Kelsey’s request, neither he nor his officials assessed each piece of information requested against the criteria in the Act for withholding official information. Instead, the Minister adopted a “blanket approach” to the request based upon his knowledge of the categories of documents requested by Professor Kelsey. I have concluded this approach did not comply with the Act.

[3] The applicants have applied for a series of declarations concerning the lawfulness of the Minister’s approach and the meaning of specific provisions of the Act.

[4] Rather than issue specific declarations I have quashed the Minister’s decision in relation to six of the categories of documents requested by Professor Kelsey. I explain in this judgment the aspects of Professor Kelsey’s request which have to be reconsidered. When the Minister reconsiders his decision he will be required to do so in a way that is consistent with his obligations under the Act, which I explain in this judgment.

This is a significant win for Kelsey and co over OIAs. There seems to be growing Government arrogance over and misuse of Official Information requests, and this is a prime example.

Some have tried to make more of this than a good victory over the OIA. For example:

Hey righties: Tell us more about how Jane Kelsey is a fake academic who doesn’t actually know a damn thing about trade agreements or the law

While this shows that Kelsey knows how to use the law to win battles, , and justifiably in this case, this does nothing to support her anti-trade and anti-TPPA stance.

What do righties think?

Matthew Hooton mixing it up with the Standardistas:

On this issue, congratulations Jane Kelsey. With it comes to OIA compliance, each government since Muldoon’s (which passed the Act) has been worse than the one before, and the slide risks continuing until the Act becomes a total irrelevance.

This is a good shot across the government’s bow that it has to comply with the law, and hopefully it will be part of encouraging a behaviour change.

Sadly, I doubt it though, and I think the OIA needs to be fully reviewed, reformed and modernised, including adding penalties for breaking it. This may also be a start for a push towards that.

I have been a big user of the OIA for many years and it would take months to get ministers in the last government to comply with the law. Now it is many more months, rolling in some cases into years. It seems each government tries to outdo the one before in terms of abusing this particular Act.

The Taxpayers’ Union put out this media release:

TAXPAYERS’ UNION TIP CAP TO JANE KELSEY

The Taxpayers’ Union is welcoming the decision of Justice Collins allowing the judicial review of the Minister of Trade’s decision not to allow access to information requested by Jane Kelsey and others relating to the Trans-Pacific Partnership negotiation. 

Taxpayers’ Union Executive Director, Jordan Williams, says:

“This is a significant victory for freedom of information and an embarrassment for the Office of the Ombudsman which has been shown up as lacking. Every day, groups from the Taxpayers’ Union to Greenpeace along with public lawyers and political journalists are hampered by a freedom of information system which is being gamed by the government.”

“For years the Ombudsman’s office has complained that the problems are due to a lack of funding. In reality, the number of appeals relating to the Official Information Act has snowballed because government agencies and politicians know that the Ombudsman is a toothless tiger.”

“Even when cases arise of officials completely gaming the system, the Ombudsman’s office won’t publicly condemn them for their actions.”

“Agencies are able to delay the Ombudsman’s investigations without consequence. As a public lawyer I once acted for a whistle-blower client who lost his job in the public sector while waiting more than two years for the Ombudsman to made a decision that never eventuated.”

“While Jane Kelsey and the Taxpayers’ Union are probably on opposite ends of most political spectrum, we absolutely commend her efforts in taking this judicial review and the victory for freedom of information and transparency. Ironically, while the High Court has been able to produce a decision the Ombudsman is still yet to determine the rest of Ms Kelsey’s original complaint.”

This is an important issue related to democracy, the legal obligations of Government and transparency.

It is good to see that it isn’t a partisan issue and Kelsey hasn’t just been attacked by political opponents, she has rightly and leftly been applauded for an important win that affects all of us.

Kelsey’s views on the TPPA and international trade are an entirely different matter.