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.