Another report information wrongly withheld by Auckland Council

RNZ reports on a third case where mayor Phil Goff and the Auckland City Council withheld information requested under the Official Information act that required intervention by the Ombudsman’s Office – Auckland Council stalled release of reports

The release of the $935,000 consultants’ report on a downtown stadium on Friday was the third time RNZ had to resort to the Ombudsman’s Office to extract public information.

The information was eventually found to have been wrongly withheld by Auckland Council.

All three directly involve the mayor Phil Goff.

In the latest case, RNZ had requested at the end of November 2017 the “pre-feasability” study looking at the prospects for a downtown stadium.

Advocacy for a closer look at the stadium had been part of Mr Goff’s election campaign.

Mr Goff personally called for the report soon after he was elected Mayor in October 2016, following 33 years in national politics.

Consultants PwC were engaged in January, although that move was not publicly announced until March, and the draft was delivered on time in June to the council agency Regional Facilities Auckland (RFA).

The council argued initially that the report was only a draft, and therefore not required to be released under the Local Government Official Information and Meetings Act (LGOIMA).

Wrong, said Ombudsman Leo Donnelly in an opinion he sent to Auckland Council and released to RNZ.

“There is no basis for a blanket withholding of drafts under LGOIMA until they are completed and finalised,” he wrote.

“To have a standard approach of withholding draft reports until they have been fully signed off, leaves the process open to exploitation by agencies who want to hold off release of information until it is most convenient.”

Read the Ombudsman’s opinion on Auckland Council’s arguments here (693.4KB)

In negotiations between the council and the Ombudsman, a senior council legal manager had also rejected the notion that public interest was not a ground for release.

“Any interest in the contents of the Report is tangential to the overall stadium issue, and falls into the category of being interesting to the public as opposed to being of legitimate concern to the public.”

Wrong, opined the Ombudsman.

“This is a project which, were the matter to progress, would involve the use of significant public funds, either through the council or central government,” wrote Leo Donnelly.

“There is a public interest in the Council being transparent at each step of the process.”

If draft reports could be kept secret under the OIA then many reports may never reach a final stage.

RNZ understands that the mayor’s office has been the key player in seeking the withholding of the “draft” report, and it was the mayor’s office which managed the reports’ release on Friday.

It also allowed Mr Goff to have a “conversation” with Finance Minister Grant Robertson on the subject, just a week ago.

It’s a re-run of RNZ’s effort to get a report commissioned by Mr Goff on the future of the vehicle import trade on Auckland’s waterfront.

Again, moving Auckland’s port long-term and the space-hungry vehicle import trade in the shorter term, were Goff campaign battle cries.

Again, fresh in office, Mr Goff ordered a report on the costs and benefits, and a draft was completed in May 2017.

It didn’t support Mr Goff’s view that the trade was a blight on the waterfront. RNZ’s request for a copy in July was declined.

Goff seems to have transferred poor OIA practices of central Government to the Auckland Council.

The outcome of the Ombudsman’s Office investigation into Auckland Council conduct around public information release, is still awaited.

But will it make any difference to Goff’s delaying tactics?

From Goff’s campaign policy document:

Council is regarded as an organisation that needs to cut fat from its system, become more responsive to the needs of its residents and ratepayers, and to be more transparent in how it spends its money.

Transparency seems to have morphed into secrecy. And the fat cutting? Auckland Council paying $45 million for ‘communications and engagement’

A leaked, confidential Auckland Council report has revealed the local body is spending $45 million running its various communications departments which employ 234 staff.

Critics have called for the council to tighten its belt and drastically cut the number of “spin doctors” it employs.

Mayor Phil Goff, who campaigned on tightening the city’s excess spending, addressed the reviews, which he instigated, at a meeting with the North Harbour business community in August.

“I’m spending your money,” he said. “You need to know you’re getting value for money in what we spend.”

Except when Goff wants to use his comms staff to keep things secret.


Goff is being interviewed on RNZ now.

Goff denies playing any part in the withholding of information. He says it follows a process. That process seems to be severely flawed.

He expects the Council to take on board the Ombudsman’s comments but then puts forward reasons (makes excuses) for not releasing information.

 

Provisional support from Ombudsman for secret document

The Chief Ombudsman has given provisional backing for Jacinda Ardern to keep the so-called secret coalition document secret – or at least the contents of it anyway.

Newsroom:  Ombudsman sides with Govt over coalition document

The refusal of the new coalition Government to release a lengthy coalition negotiation document, despite promises of transparency, led to a complaint to the chief Ombudsman. Peter Boshier has now ruled that the Government was within its rights to withhold the material.

New Zealand First leader Winston Peters revealed the existence of the document in late October after signing his party’s official coalition agreement with Labour, describing it as “a document of precision on various areas of policy commitment and development”.

“These are directives to ministers with accountability and media strategies to ensure that the coalition works, not in a jealous, envious way, ‘We got this and they got that’, but as a Government successively, cohesively working.”

While Peters said at the time the document would be publicly released, Prime Minister Jacinda Ardern’s office refused to release it to Newsroom under the Official Information Act, arguing it was not official information.

Ardern later described the document as “notes” made during negotiations that were yet to be finalised, not a formal government document.

“Where we’ve committed ourselves to a piece of work and a policy piece of work, we’ve released that. Where there’s more work to be done, that will be released at the time when we’ve reached a conclusion.”

In a provisional opinion sent to Newsroom, Boshier said he had “carefully read and considered” the document, saying it was “clearly made for the purpose of assisting the parties with coalition negotiations”.

“It contains discussion points designed for negotiation and, despite certain public comments to the contrary, does not include information such as directives to Ministers,” Boshier said, in an apparent reference to Peters’ comments about the document.

Ardern’s office told Boshier the document had not been passed on to any ministers or government departments, or used by any ministers in carrying out their official duties.

“It has played no part in policy decisions, and is not available to Ministers as reference material when making official decisions.”

Boshier said he was therefore satisfied that the information had not used by Ardern in her role as Prime Minister, and was held “solely in her capacity as Leader of the New Zealand Labour Party”.

He said he would consider any comments on the provisional opinion before forming a final opinion.

So a provisional win for Ardern.

I don’t really care whether the document remains secret or not, especially this long after the negotiations. It’s not likely to change anything.

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.

 

Ardern ‘will absolutely co-operate with the Ombudsman’

After PM Jacinda Ardern refused to release the 33 page coalition document that Winston Peters had promised to make available a complaint was laid with the Ombudsman. The Ombudsman has read the document and now requested a response from Ardern, who has said she will co-operate with the Ombudsman.

NZH:  Jacinda Ardern ‘will absolutely co-operate with the Ombudsman’ over unreleased coalition document

Deputy Prime Minister Winston Peters described it as a “document of precision on various areas of policy commitment and development” and “directives to ministers with accountability and media strategies”.

Ardern…describes as an unofficial “record of some of our [coalition] conversations”.

Ardern’s refusal to release the document is now the subject of a complaint to the Office of the Ombudsman.

Peter Boshier told Radio New Zealand’s Nine to Noon that he had read the document.

“I’ve written to the Prime Minister and my expectation is a five-day time turnaround for a reply.”

Ardern says she will co-operate with the Ombudsman on the issue of whether to release the 33-page coalition document that she has so far refused to release.

Ardern confirmed this afternoon at her post-Cabinet press conference that she had received a letter from Chief Ombudsman Peter Boshier regarding the document.

“I am willing and will absolutely co-operate with the Ombudsman.”

She has made that commitment after receiving and presumably reading the letter from the Ombudsman, so presumably knows what she saying she will co-operate with.

Ombudsman asks for response on ‘secret’ coalition document

The Chief Ombudsman has asked Prime Minister Jacinda Ardern for a response over the now 33 page coalition document that she has refused to release, despite Winston Peters offering to release it.

NZH:  Ombudsman steps in over unreleased coalition document, asks PM for response

Chief Ombudsman Peter Boshier has written to Jacinda Ardern in relation to the 33-page coalition document that she has refused to release, asking her to respond within five days.

Ardern’s refusal to release the document is now the subject of a complaint to the Office of the Ombudsman.

Deputy Prime Minister Winston Peters described it as a “document of precision on various areas of policy commitment and development” and “directives to ministers with accountability and media strategies”.

Ardern has been under pressure from the Opposition to release the 33-page document, which she describes as an unofficial “record of some of our [coalition] conversations”.

Boshier told Radio New Zealand’s Nine to Noon that he had read the document.

The document that Ardern has described as a few notes.

“I’ve written to the Prime Minister and my expectation is a five-day time turnaround for a reply.”

He said he could not talk about this individual case, but described the general process.

“I set my own timelines as to what’s appropriate. I see the document. I go through it. I form my own view. I then take that provisional view to each side and say, ‘This is what my view is. What do you say in relation to my view?’

“And then I release my decision. It’s very rare that my decision is not complied with.”

Sounds like Ardern is now also under pressure from the Ombudsman.

 

Government tried to hide housing report

The Government tried to prevent a critical housing report from being revealed but they were overruled by the Ombudsman under the Official Information Act.

The Government has faced a lot of criticism over it’s abuse of disclosure under the OIA. This is just one more example.

RNZ: Govt tried to keep critical housing report secret

A report the government tried to keep secret says its approach to social and affordable housing is fragmented and lacks a robust plan.

The external review of the Social Housing Reform Programme noted that, in Auckland, three ministers and four government agencies lacked an overall plan to boost housing supply.

This isn’t a surprise, the Government has looked disorganised and slow to react to growing housing issues.

The 135-page review, done for Treasury, was finished in December 2015.

Last September, then-Minister of Social Housing Paula Bennett refused to release the report to RNZ.

She said to do so would “prejudice the quality of information received” and “the wider public interest of effective government would not be served”.

RNZ obtained the report only after an appeal to the Ombudsman under the Official Information Act.

It shouldn’t be this difficult to get official information.

The review recommended a Social Housing Programme office, which would answer to key ministers and establish a single agency to manage property sales and the redevelopment of Crown land.

Withholding the report for six months allowed it to be released with a letter from the Ministry of Social Development’s deputy chief executive for social housing Scott Gallacher, which outlined subsequent progress.

The delay ensured more attention would be drawn to the report, and puts it into the public arena in election year. Things like this can nibble away at Government credibility, and could reach a tipping point.

National are looking increasingly vulnerable over housing and trying to keep reports secret and continuing to abuse the OIA won’t help their case.

“Cruel, inhumane and degrading treatment” of prisoners

Dealing with difficult prisoners intent on self harm is challenging, but basic human rights are a fundamental requirement for our prisons.

An investigation by the Ombudsman is causing a stir, and so it should.

Report: A question of restraint

Background

In 2007, the Ombudsmen were designated as one of the National Preventive Mechanisms (NPMs) under the Crimes of Torture Act (COTA), with responsibility for examining and monitoring the general conditions and treatment of detainees in New Zealand prisons.

This report details observations and findings relating to prisoners who have been considered at risk of suicide and self-harm, who are managed in At-Risk Units (ARUs) in New Zealand prisons; and focuses on the comprehensive inspections of five prison sites.

Summary of findings

  • Of the 18 prisons across the country, 14 have a designated ARU. At-Risk cells at best can be described as sparsely furnished rooms, which are constantly monitored by a live camera-feed, including the unscreened toilet. Staff of either sex, in the course of their work, can observe At-Risk prisoners in various states of undress. Prisoners’ clothing is removed on admission to ARUs and replaced with anti-rip gowns to minimise opportunities for self-harm.
  • Routines within ARUs are similar to the regimes within management/separates units.1 At-Risk prisoners are placed in isolation with limited interaction and therapeutic activities.
  • RU paperwork and directed segregation (for medical oversight) is not always fully completed and lacks specificity and personalisation.
  • Training for staff working in ARUs is basic.
  • Staff interactions with At-Risk prisoners are limited.
  • There were incidences of At-Risk prisoners being restrained on tie-down beds by their legs, arms and chest over prolonged periods.
  • There were incidences of At-Risk prisoners being restrained in waist restraints with their hands cuffed behind their backs.
  • We discovered incidences of tie-down beds and possibly waist restraints being used for behaviour modification purposes at some sites.
  • Prisons were not following their own procedures in respect of the application of mechanical restraints.
  • The interface between Corrections and Regional Forensic Psychiatric Services appears not to be working as effectively as it could. Gaps in service provision were evident.

I consider that the use of the tie-down bed and/or waist restraints in the circumstances of Prisoners A, B, C, D and E2 amounted to cruel, inhuman or degrading treatment or punishment for the purpose of Article 16 of the Convention against Torture. Furthermore, I believe the ability of prison staff to access footage of prisoners undertaking their ablutions constitutes degrading treatment or punishment under Article 16 of the Convention.

Corrections are in part defending what they did as necessary to protect prisoners from their own actions.

RNZ: Call to prosecute guards over tied-down inmate

 

Ombudsman on MFAT leak inquiry

The Ombudsman has been scathing of an inquiry into leaks from MFAT and how the Government handled things, which seriously compromised the careers of MFAT employees.

Stuff: Damning inquiry points finger at the Government, State Services Commissioner

Ombudsman Ron Paterson has told the Government it should compensate a former top diplomat whose career ended in tatters after he was targeted by the inquiry, which was instigated by the State Services Commission.

He has also recommended a formal apology.

The 2013 inquiry has already cost taxpayers as much as $1 million, including lawyers costs and fees paid to the woman who headed it, Paula Rebstock.

The 2013 inquiry headed resulted in senior diplomats Derek Leask and Nigel Fyfe  being singled out , despite evidence the leaks that sparked it originated from within the State Services Commission itself. The person responsible cannot be identified because of suppression orders.

While they were not named in the State Services Commission-ordered inquiry, Leask and Fyfe were easily identifiable and their conduct was publicly  criticised by the State Services Commissioner and Foreign Affairs Minister Murray McCully after personal emails were published revealing their opposition to restructuring of the ministry.

Paterson says the SSC acted unreasonably during the inquiry  and pointed out flaws including:

* the findings in relation to Leask exceeded the inquiry’s terms of reference.

* Leask was not given fair notice prior to his interview that his conduct would be examined.

* Insufficient material was provided him about the applicable standards against which his behaviour was being measured

* He was not treated fairly.

* The evidence relied upon by the inquiry did not reasonably support some of the criticisms made about him in the final report and some highly relevant evidence was not properly addressed

* The manner in which Leaks’s actions were addressed in the final report was disproportionate when compared with the comments about the actions of other senior MFAT managers.

* Publication of the report, in a manner that identified him and contained unfair criticisms of him, was unjust

* State Services Commissioner Iain Rennie’s public statement about Leask was unreasonable.

Paterson recommends Leask receive compensation for harm to his reputation caused by the deficiencies in the inquiry and publication of the report.

This has raised serious questions.

Stuff: Top diplomat: Serious questions to be answered about the government’s misuse of power

Neil Walter, a former top diplomat, says serious questions are raised by the Ombudsman’s report into flawed government inquiry.

In the view of three Queen’s Counsel, the investigation team’s report was riddled with errors of fact and contained a number of accusations that had little connection with either the inquiry’s terms of reference or the evidence produced.

The Privacy Commissioner has separately ruled that Rennie breached the Privacy Act.

I expect more questions will be asked about all this. Serious questions need answers and appropriate remedies.

I think one thing in particular that needs to be addressed is the apparent propensity of the current Government to attack and discredit public servants and others to protect themselves, to divert from serious issues or to discredit arguments or evidence that is inconvenient to them.

On the Ombudsman review

The ODT has an editorial on Chief Ombudsman Beverley Wakem’s review of the Official Information ActNo room for complacency.

Dame Beverley’s year-long investigation was undertaken after she says she became aware of growing public concern and criticism about perceived practices within government agencies in relation to the Act.

Her report (released this week) concluded most agencies are compliant most of the time, and there was no direct evidence of political interference in the release of information.

That is certainly pleasing. It adheres to our democratic principles, reflects international findings such as the Corruption Perceptions Index (which rates New Zealand the second-least corrupt country), and reinforces the goals to which we aspire as part of the international Open Government Partnership and our recent ratification of the United Nations Convention Against Corruption.

However, Dame Beverley’s report raised several red flags.

The report found greater leadership was required.

While chief executives and senior managers understood their obligations, there was little OIA training for staff, and policies for proactively releasing information were lacking.

Ministers gave ‘‘mixed messages” to departments about compliance and some Government ministers’ offices had attempted to interfere in their departments’ responses to information requests.

All of the above created a

‘‘cycle of distrust and suspicion” between the public and agencies.

The training and policy lack is concerning given the Act has been in effect for more than 30 years.

While the report found departments put ministerial officials right about their obligations and released the information, the fact influence is being exerted is worrying.

Worrying too is the possible extent of this.

Wakem has been criticised for being to weak in her role.

The public (and media) ‘‘distrust and suspicion” around transparency is certainly real, and was discussed in an editorial in this newspaper only last week.

The situation has not been helped by Prime Minister John Key’s admission the Government sometimes delays releasing information right up to the 20-day OIA deadline if it is in its interests to do so. (It is a legal requirement to release the information as soon as practicable within that time frame.)

It must be acknowledged privacy provisions and security considerations come into play when releasing some information.

Most will understand that conflict and the difficulties in obtaining the right balance.

Unacceptable, though, is the withholding of information, or delaying tactics, for political purposes.

Politicians need to be much better  at serving the interests of the people. And the Ombudsman needs to be better at ensuring this happens.

 

 

Ombudsman – withholding Banks’ full statement to Police “was not justified”

The Ombusdman has recommended that a reacted version of John Banks’ statement to police is given to NZ Herald and Labour – after the current court proceedings have concluded.

In relation to requests by NZ Herald (David Fisher) and Labour (Kate Challis) for a copy of the statement provided by the Hon John Banks to the Police in the course of their investigation into alleged irregularities in respect of electoral funding donations the Ombudsman has ruled:

I have formed the opinion that in September and October 2012 the Police had good reason to refuse parts of the statement under those provisions but that the decision to withhold the statement in full was not justified.

He has recommended “that the Police release a redacted statement to the requesters once the related court proceedings against Mr Banks have concluded.”

So that won’t have any immediate effect, it will have to wait until the current court proceedings are complete.

Ombudsman’s role:

As an Ombudsman, I am authorised to investigate and review, on complaint, any decision by which a Minister or agency subject to the OIA refuses to make official information available when requested. My role in undertaking an investigation is to form an independent opinion as to whether the request was properly refused.

Summary

David Fisher of The New Zealand Herald and Kate Challis of the Office of the Labour Leader requested a copy of the statement provided by the Hon John Banks to the Police in the course of their investigation into alleged irregularities in respect of electoral funding donations.

The allegations pertained to the 2010 Auckland Super City Mayoral election in which Mr Banks was a candidate for the mayoralty. The statement was withheld pursuant to sections 9(2)(a) and 9(2)(ba) of the Official Information Act 1982 (OIA). I have formed the opinion that in September and October
2012 the Police had good reason to refuse parts of the statement under those provisions but that the decision to withhold the statement in full was not justified. 

Ombudsman’s opinion and recommendation

49. For the reasons set out above, I have formed the opinion that in September and October 2012 the Police had good reason to withhold parts of Mr Banks’ statement under sections 9(2)(a) and 9(2)(ba)(ii) of the OIA, but the decision to withhold the statement in full was not justified.

50. I recommend that the Police release a redacted statement to the requesters once the related court proceedings against Mr Banks have concluded. I have stipulated that the release be delayed because although I consider the OIA did not provide good reason to withhold the majority of the statement at the time the Police made its decision on the requests, in light of subsequent events, disclosure at the present time would be likely to prejudice Mr Banks’ right to a fair trial (section 6(c) of the OIA). Accordingly, a recommendation to disclose before the conclusion of the pending court proceedings would be c ontrary to one of the purposes of the OIA which is “to protect official information to the extent consistent with the public interest …” (section 4(c) of the OIA).

Full report (PDF).