By Geof Mortlock*
One of the most important laws in New Zealand is the Official Information Act. It is a law that goes to the core of our democracy, and to the transparency and accountability of government.
Since its enactment in 1982, the Official Information Act has provided New Zealanders with the capacity to seek information from ministers and government agencies on wide-ranging matters relating to the exercise of statutory powers, policy formulation, and advice from officials to ministers.
It provides an important mechanism for holding ministers and government agencies to account for their actions (or, in some cases, the lack of actions). Investigative journalism and critical analysis of decision-making has often depended on the ability to obtain information under the Official Information Act. This has been all the more important given the general lack of meaningful transparency by government and its agencies, and the weakness of constitutional checks and balances that have long characterised New Zealand’s system of government.
However, for all its merit, the Official Information Act is failing us in significant ways. The Act is flawed and is enabling ministers and government agencies to delay, minimise or avoid disclosures of official information. Its failings have long been recognised by the many who have made requests under the Act and have been thwarted by uncooperative government agencies. In many cases, the problem lies with government agencies taking far too long to respond to a request – often well beyond the statutory time limits prescribed for in the Act.
More fundamentally, there are many cases of government agencies refusing to release information on one or more of the wide-ranging grounds under the Act, with little in the way of substantive justification. In situations where information has been released, there is often a tendency for government agencies to redact significant parts of documents without giving adequate reasons for the redactions.
The failings in the Official Information Act have been the subject of extensive review by the Law Commission. The Commission released a major report on the Act in June 2012, entitled ‘The Public’s Right to Know’. It identified numerous deficiencies in the Act and made many recommendations to strengthen the law.
Yet the Law Commission’s report has largely sat gathering dust since its release. Neither the National-led government at the time nor the current Labour government actioned the report’s recommendations to any significant degree.
In the case of the current government, the failure to address the many concerns relating to the Official Information Act sits rather uncomfortably with Labour’s stated policy of being a champion of ‘open government’. In reality, the government is only open when it sees a political advantage in being so, and is otherwise all too comfortable hiding behind a shield of opacity. Likewise, officials in many government agencies have no particular fondness for transparency; their incentives are to withhold or make it difficult to obtain information so as to reduce the scope for real accountability.
The Law Commission’s report raises many issues in relation to the Official Information Act and makes a raft of recommendations for changes. From my perspective, the key impediments to the effective operation of the Act can be summarised quite succinctly:
These grounds are so broad that they can be – and often are – used to justify withholding an enormous range of information. They are open to abuse by ministers and officials. The Act empowers this potential for abuse by providing no criteria that must be applied in assessing whether the grounds exist and by not requiring an appointed, independent third party to separately determine whether the grounds legitimately exist to withhold the information. The decision to withhold information rests solely with the ministers or officials in question.
New Zealanders deserve better than this. We need a statutory framework that provides greater access to official information, requires the information to be provided in a timely manner, and gives the Ombudsmen real power to enforce compliance with the Official Information Act. The grounds for withholding information should be narrowed and subject to assessment criteria. The public agencies currently exempted from the Act should be brought under its ambit. The time limit responding to requests for information should be strictly enforced. Breaches of the Act by ministers and officials should be subject to disclosure. Consideration should be given to imposing fines on ministers and officials for significant breaches of the Act. Ultimately, persistent failure to comply with the Act, including to comply with recommendations from the Ombudsmen, should be grounds for dismissal of the relevant officials.
At a time when government is intruding more and more into the lives of New Zealanders, with an ever-increasing array of laws and regulations, we need much stronger transparency and accountability of the government. We need ‘open government’ in a meaningful and consistent manner, and not only when it suits the government to have it.
*Geof Mortlock, based in Wellington, is an international financial and economic regulatory consultant, with extensive experience in advising governments in many countries on economic and financial sector reform. Geof was recently a guest in an episode of interest.co.nz’s Of Interest podcast talking about the government’s plans for deposit insurance.
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Absolutely agree. I have played the OIA ‘game’ with respect to sale of police property and non prosecution of the cyclists who rode across the Harbour Bridge. What a convoluted process. In one case, the Ombudsman chided the Police for their delays in responding to me. I also found out how Genter arranged her involvement to take her actions outside the OIA framework
Absolutely agree.
Same here – it’s virtually useless as a means of proving information or accountability
It’s obvious this author has never seen the sausage getting made. There is no widespread conspiracy on Lambton Quay. It’s mostly some combination of incompetence, lack of staff, and lack of systems to retrieve the info. It’s time consuming and expensive to avoid releasing personal info.
The biggest problem is that requests are free (yeah agencies can charge, but it’s pretty rare, given the stance of the Ombudsman). The result is masses of requests from conspiracy theorists, class action lawyers, market researchers, and worst of all – lazy journalists (some of these low effort articles end up costing taxpayers tens of thousands). God forbid the Russians find out about the OIA.
OIA is the least glamorous part of most public sector agencies. Few people get promoted for making timely responses. The result is some combination of procrastination and bureaucratic hot potato within and between agencies.
I’m not normally one to defend the lanyards class, but the people making these responses are doing the best with what they have. The system is broken at both ends.
Public information should be publicly released as the default setting, there are safeguards in existing legislation to protect privacy.
Someone has to apply the safeguards to public information. It’s not just a matter of redacting names etc. – you have to understand the context of the information as well as the requester does, to avoid leaking identifiable info. It’s extremely time consuming and boring.
What do you mean by “default setting”. You’d have to store all information with private info removed at the source. That’s completely unworkable (the OIA covers absolutely everything, including emails, instant messaging).
You can’t just push a button and release all government information, it just doesn’t work like that mate!
A lot of info could be proactively released, a better framework would help, but how much are we willing to spend? A lot of people here already complain about a costly central bureaucracy.
Hey Peter, you actually can! Most of the info being asked for could have easily been put up on a website for public access. But it doesn’t suit the polirics for a lot of people to have taxpayer funded work and decision making being made public.
There is this.
https://www.data.govt.nz/catalogue-guide/using-data-govt-nz-apis/
No, you actually can’t. You’d need lawyers to pore over every bit of information to check for private, commercially sensitive, or dangerous releases. These types of complex requests make up the majority.
Then you have to come up with some coherent way to categorise it. Then you have to build the infrastructure to store, host, and serve it (it’s not just a matter of “putting it up”).
That already is the default position under the Act: information must be made available unless there is good reason to withhold. Note that this reversed the default position of the Act’s predecessor, the Official Secrets Act.
The writer has obviously never been on the side of having to respond to numerous OIA requests and doesn’t understand that many requests vary in size and the time it takes to gather the info being requested (while staff are also doing a bunch of other jobs). OIAs are a huge task! Sign out in government agencies cuts into about half of the 20 working days which involves getting times in Senior Leaders diaries, and often consulting with numerous external/internal people. The whole process is demanding and as someone who has worked as a public servant for 15 years, I have seen staff working long hours just to meet the statutory timeframe to deliver on requests. The writer obviously hasn’t checked out the Transparency.org website where you can see that NZ has been consistently ranked as having one of the most transparent governments in the world – mostly thanks to having an Official Information Act (some citizens of the world don’t have the right to question their government about anything!). We should never get complacent, but at the same time, I would hardly call the Official Information Act broken, and if it is, it’s because of some regular requestors who abuse the legislation because they have an axe to grind and their frivolous requests, such as “I request a full list of your agency’s telephone hold music” end up costing taxpayers a huge amount of money – and the real problem is that agencies HAVE to respond to these types of requests.
See my comment below. I have indeed been on both sides of the fence re OIA requests. I am perfectly well aware of how time consuming they can be. But lack of resourcing for OIA requests is no excuse. Government agencies need to get more efficient in handling requests for information and to take the process more seriously and less cynically.
It always seems that those who complain about “a lack of government resourcing” regarding OIAs simultaneously complain about “bloated government spend”. I’m confused!
Also Geof, I’m not sure what decade you responded to OIA requests, but things have changed! It’s no longer requests by snail mail, most requests come by email and then you have the FYI site. It’s also extremely hard for agencies to predict how many OIAs they will receive in any given month, so it’s very challenging to get staffing levels right. If you have any constructive ideas about how we could get staffing levels right then please let me know, because most people in the OIA space are doing well beyond their paid for 40 hour weeks and are not entitled to any over time. You are welcome to spend a day at my place of work to experience the actual reality of what we do, otherwise, as it stands, your article remains incredibly biased.
I might be getting on in years, but emails were alive and well when I was responding to OIA requests! My solutions are to:
– strengthen Act in the ways I have identified (plus other changes that the Law Commission and others have recommended);
– adopt a default setting for official information, such that it is automatically released on websites in accessible ways, subject to withholding only information that meets tight criteria relating to confidentiality and privacy;
– the above would enable many OIA responses to simply refer the enquirer to web links;
– increase funding as required to resource agencies to handle OIA requests.
It would be great if you could justify this comment of yours “Likewise, officials in many government agencies have no particular fondness for transparency; their incentives are to withhold or make it difficult to obtain information so as to reduce the scope for real accountability”. How did you reach this conclusion Geof? What did you do if you noticed this type of behaviour when you were in the public sector?
A start would be better record keeping and indexing by government departments. Such as would occur if government departments bothered to comply with the Public Records Act.
If tax payers are paying for the services, then we should be able to see where and how the tax dollars are being spent.
Case in point, the health targets being scrapped by David Clarke years ago now. There’s still a huge hole there as far as I can see around how my local (ex-) DHB is performing.
There’s more and more data going into more and more systems. It’s a bit of a failure in system design, given how long we’ve had the OIA, that they are seemingly incapable of letting us get useful information back out and that complies with the privacy law etc.
This is an excellent article and the author is absolutely correct in asserting that the OIA needs review.
Just to clarify – I have been on both sides of the fence with an OIA request. I have made occasional requests. But equally, in earlier years, I participated in responding to OIA requests. So I am quite well placed to give a balanced view on this matter. Yes, OIA requests take time to respond to. Very often, the most time taken is on officials trying to avoid releasing information rather than in pulling together information to be released. In other words, officials often make more work for themselves by trying to avoid complete and honest responses. Time could also be saved by releasing information proactively where feasible – i.e. a more transparent approach to decision-making and policy formulation. But all too often ministers and officials are reluctant to do this because transparency puts the spotlight on questionable analysis and processes in decision-making. In any event, if we are to have an effective OIA, then it needs to be properly resourced in government agencies and taken seriously, and needs to be subject to appropriate disciplines. Currently, it is not working anywhere near as well as it should.
Thanks Geof. However, I do not find your article “balanced” in any way, shape, or form. What you article suggests to me is that ALL public servants are complicit in some ‘Watergate-type’ of cover up to avoid any kind of public accountability – this I take offence to. I am a public servant (also a taxpayer) and I take my job as serving the public very seriously. Your article, as I pointed out earlier, fails to address the issues around regular requestors who make numerous frivolous requests at great expense to the New Zealand taxpayer. The problem is that, even though there is a section in the Official Information Act to refuse a request under frivolous and vexatious, I have never (in any agency I’ve worked for) seen an agency apply this refusal ground. Instead, we do our best to answer the request. A few years ago, I worked for an education provider that received approximately $100k in public funding so they were subject to the Official Information Act. This business was very resentful that they had to answer OIA requests, and some of the Senior Managers would strong arm non-senior staff to withhold information where they had no legal right to do so. I left this place of employment promptly (within 1 month) as this is not the way I will ever conduct myself as a public servant. It’s important to realise that every OIA request passes many hands before it is released to a requestor. If things are fishy, and staff suspect that withholding grounds have been applied illegally, someone is eventually going to say something about it because there are credible people in this world. All your article does is fuel more anti-government sentiment that adds to the, almost daily, abuse that government workers have to face. I’m too scared these days to tell strangers I meet what I do for a living because of the amount of dis/misinformation that exists on/offline. Sure, we are taxpayer funded, but most of us are really good sorts who wake up everyday wanting to do the best we can for our fellow New Zealanders. Arohanui.
Peter – the comments section allows for the article to be developed and contextualised, as you have done with your valuable comments and perspective. Is there anything else you would want to raise so that a reader gets a more balanced view?
I noted that although you wrote in defence of public servants and the Act, you pointed out that you have worked for senior managers who would strong-arm people into illegally withholding information. If this is possible, then we should seek ways to improve the Act to make it less possible. And you should not assume the best in everyone and in the system, because history has shown (including very recent history) that disreputable people exist who will take advantage of any loopholes in the system.
You also pointed to another issue with the Act, i.e. the potential for frivolous requests and the associated workload and cost. Bearing these things in mind, are you really suggesting that the Act should not be reviewed and improved?
I can also provide my own limited experience: I made an OIA request (the only one I’ve ever made) in mid-January, and it took until the end of April to come back. I tried to make my request as narrow and specific as possible. What came back was a bunch of unrelated nonsense repeated several times over, whilst the key things I did ask for were buried at the end of it, and redacted and withheld, because they pertained to legal advice given by the agency to itself. I’ve appealed to the Ombudsman about the withholding of the legal advice, since the legal opinion was already substantially disclosed by the agency in question, which should mean that legal professional privilege had been waived. It’s been with the Ombudsman since early May, with nothing more than an acknowledgement from them so far. So, my experience so far is similar to that of the article author. Possibly the public servants answering it are having an experience like one of yours. All up, it suggests that change to the Act could be a good thing.
To clarify, the business that I was referring to as “strong-arming” other staff was not a central (or local) government agency. I have worked for at least 10 central government agencies in my time and I have never experienced this type of behaviour, and if I had, I would have done the exact same thing as I did with this other employer and walked out and found myself a job outside of the public service. The problem with this particular article is that it makes huge sweeping statements that public servants are somehow complicit in some grand cover up when it comes to releasing official information. Next minute, the writer of this article will declare that the moon landing never happened, and 9/11 was an inside job! I’m not sure what bad experience you have had with the agency you sought information from, but I can assure you that where I have worked the mantra is always to “release as much information as possible UNLESS there are good reasons under the Act not to” and staff, including senior staff, regularly challenge the importance of being transparent. I would never work for managers that acted any other way. Most government staff have access to a whistleblower service that is independent from NZ government or any other NZ business, in fact this service is located in Australia.
Also fra99le, it’s important to point out that many wrong doings and injustices happen in private businesses too! You can legislate until the cows come home but there will always be people who abuse their power and break the law. The point I was making is that there ARE people who will notice these abuses of the legislation who WILL do something about it – this always what happens, example – #metoo.
Many on this forum complain vociferously about a bloated and costly bureaucracy. Transparency is expensive. Any review needs to consider cost and perhaps better way of managing OIAs.
Proactively releasing more information would be supported by a better framework, this would also mitigate costs. Technology could help (e.g record & publish key meetings) (looking at you new Health New Zealand Board). All OIA responses (and requests) should be published because the info is deemed to be in the public domain upon release.
As a public servant, you are missing how the OIA sausage actually works. It is a monster to grab information for OIAs and it genuinely wastes thousands of manhours very often.
And if someone is conspiring or being obfuscated, you simply don’t keep a written record via electronic comms. You only speak about it in person or keep it written in a notebook, which goes into the shredder in future.
The way conspiracy/bad behaviour in government usually works is orientating a project to score external contracts then going to work for the external firms (happens all the time), or in IT, building a complex software project then coming back as a contractor to maintain that system for 3x the price.
As for the decision making, policy formulation/decision-making is a very messy sausage making process. But one of the top fears is often OIAing by media or fear of the minister’s inquiries, which drives strong risk aversion. This in turn means you contract all project management or management consulting to some 23 year old graduate in brainlet accouinting/management double major from the Big Four, then hire consultants from IT firms around Wellington to ensure all advise and decision making was by these external professionals. In turn, when the project fails and overspends its budget by twice the allocated funds, the blame falls on the consulting firms rather than the management.
The MBA mindset of the CEOs of these public sector agencies often means failure by a manager results in resignation/moving on from that role. No one is allowed to fail because the media brutalises your agency for it.
This is so painfully accurate.
This in turn means you contract all project management or management consulting to some 23 year old graduate in brainlet accouinting/management double major from the Big Four, then hire consultants from IT firms around Wellington to ensure all advise and decision making was by these external professionals. In turn, when the project fails and overspends its budget by twice the allocated funds, the blame falls on the consulting firms rather than the management.
Which is in itself moronic, given that under s 2(5) of the OIA, information held by a contractor engaged in their capacity as a contract for a public agency is deemed to be information in scope of the Act.
Work by contractors is covered by the Public Records Act and the Official Information Act.
PP’s comments have given me hope. Govt employees can actually write.
It would be nice to think that every device owned by every politician is monitored 24/7 by the spy a agencies. It appears that Stalinda and her Cronies are hiding most comms on private devices thru private channels.
They take the big money and need to be 100% accountable.
And Key and Co were any better?
They removed democracy to get at Canterbury water.
Arrogance personified.
They’re all part of a System – and the aim of any System is to keep itself going. That includes, if necessary, disenfranchising all and any. And of cours they have to cover it up; the wedge between truth and what they’re doing, gets too wide.
Luckily, we still have an Ombudsman. We sure as hell don’t have much of an investigative media, even with the OIA.
Well known that the Key government actively sought to derail the free and frank advice convention.
And the evidence is where for your reckon?
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