Caught in the act
Almost 300 people made submissions to the Justice Ministry about the Official Information Act. Both those who make information requests and officials who respond to them say the law is not working. Nikki Macdonald analyses the submissions to find out why
The pages crackle with frustration. There’s the university professor struggling to do her job, the conservation organisation refused data to map sensitive sites, the Earthquake Commission claimant whose case information was blacked out beyond recognition.
There are tales of government staff being told off for putting sensitive information in discoverable emails, instead of subverting the Official Information Act (OIA) by talking on the phone. There are accounts of ministerial staff trying to manipulate OIA responses.
And there are public servants spending hours wrangling requests for massive volumes of information that could never have been envisaged by an act as old as the personal computer.
Through it all there’s a feeling of battle fatigue on both sides, with talk of a ‘‘combative’’ process and one anonymous submitter saying the act condemns officials to ‘‘the misery and stress of perpetual, soul-wearying failure’’.
The Justice Ministry asked Kiwis what they thought was wrong with the OIA, to help them decide if the act needs an overhaul. The 290 submissions reveal a broken process.
Those who use the act to seek information highlight delays, excessive deletions, overuse of vague withholding grounds, political interference, and an ombudsman appeal process made ineffective by sometimes years-long waits.
On the other side, officials who respond to OIA questions say requests are unwieldy and unfocused and they need more reasons to withhold information, not fewer.
The only common ground seems to be support for more information to be proactively released, the idea of an independent agency such as an information commission to help with training and prevent political interference and penalties for failing to comply.
Former Ombudsman’s Office investigator and open government advocate Andrew Ecclestone says Chief Ombudsman Peter Boshier’s submission in favour of introducing penalties is very significant as it shows the traditional tactic of naming and shaming non-compliance is not working.
‘‘What’s clear from many submitters, and from the anonymous submissions that come from officials, is that this power is not enough. It’s frankly ignored and it’s therefore implicit that ministers and agencies are willing to wear the
bad publicity from being criticised for their secrecy.’’
Many submitters also advocated extending the OIA’s reach, to include parliamentary services, the auditor-general and inspector-general of intelligence, the ombudsman and private organisations doing publicly funded work. As Transparency International submits: ‘‘It seems obvious that the OIA should cover all use of public funds.’’
The OIA’s stated purpose is ‘‘to increase progressively the availability of official information to the people of New Zealand’’. Auckland University professor Jane Kelsey, who researches trade negotiations, says information access has instead got worse. She’s been requesting official information since the 1980s and is now refused information that was disclosed under earlier governments.
Kelsey says delays, massive deletions and long waits for ombudsman appeals are making it harder for her to be the ‘‘critic and conscience’’ of society, as required of universities under the Education Act.
Despite asking what the public thinks of the OIA, the Government remains noncommittal about whether or not the law needs a rewrite. While State Services Minister Chris Hipkins has acknowledged a culture of game-playing and said the act needed more teeth, Justice Minister Andrew Little said an overhaul might not be needed, because his Government was more open than its predecessors.
Little says the Justice Ministry is analysing the submissions and will report back next month, so he can decide whether to review the act.
Time out
‘‘Organisations drag their heels delivering information. I work in the public sector on a team who deal with OIA requests so I know it can be hard and resource intensive to deliver, but other organisations just take the piss. They know there will be no real consequences if they drag on for months or offer partial answers. I think there’s not enough expert staff at these organisations to handle the requests appropriately, rather than it being malicious. But there’s no incentive to be better equipped, and costs involved, so they don’t do it.’’
– Anonymous
Delay is the most common frustration highlighted by those trying to extract information. Most agree the 20-day timeframe is treated as a target rather than a maximum, extensions are common and hard to challenge
and some believe officials and politicians game the system to delay information until it’s no longer useful or newsworthy.
For example, a request for information from Shane Jones’ office by Jordan Williams, of the Taxpayers Union, was extended to allow ‘‘consultations’’. When Williams asked who was consulted, the minister’s private secretary responded, ‘‘I consulted verbally with various colleagues of mine.’’
Kelsey says one topical research paper she’s preparing, about e-commerce regulation, could be delayed up to three years: a nine-month wait for the documents, another year to have the redactions reviewed by the Ombudsman, plus the time to get any extra information that the Ombudsman’s Office might say has to be released.
But time – and resources – is also the biggest issue cited by those who respond to OIA requests. Small organisations such as school boards say the volume of requests can be crippling. Former prime minister Sir Geoffrey Palmer, who supports a full review of the act, says while compliance costs are high, that’s the price of democracy.
But officials say the scope of some requests is unmanageable – information on a subject might include thousands of emails, which have to be reviewed. As Jarrod Williams of Stats NZ explains, ‘‘1982 was very different in how information was created and stored’’.
‘‘In 1982 only key decisions were kept; in 2019 everything is kept, stored and searchable. Requests can very quickly become burdensome and unreasonable from an organisational perspective when scope is not very defined.
‘‘For example, one recent request we received, with a clear and refined scope, was easily collated in a few hours. However, the result of the collation was over 50,000 emails, which were then filtered down to 400 pages of correspondence.
‘‘These 400 pages in turn needed to be reviewed by the relevant people in the organisation (including those with subject matter expertise and OIA expertise) before we could be confident that they could be released.’’
Williams adds that refining requests is ‘‘often seen as a bad thing and is generally a combative process’’. As one anonymous submitter put it, while there are conscientious requesters trying to get important information and conscientious responders genuinely trying to be helpful, there are enough abusers on both sides to breed corrosive suspicion: ‘‘Neither side knows whether they’ve got a bad apple or a good one on the other side of the request, so they generally must assume the worst and proceed accordingly.’’
Blackout or withholding grounds
‘‘When I applied through the OIA for the document EQC had on my earthquake damaged property, I received the papers with most of the important information blacked out. I think the OIA is a very important part of NZ’s democracy and one of only a few ways citizens can see what organisations like ACC or EQC have on file for their case and check whether the information gathered is correct and fair.’’ – Anonymous Deletions and overuse of vague withholding grounds, such as commercial sensitivity or saying releasing the information would interfere with ‘‘free and frank’’ discussion between officials and ministers, were the next most common issues raised. But many of those who respond to OIA requests want broader withholding grounds and better processes to deal with serial or vexatious requesters.
Political interference
‘‘Most of my ministers were senior and familiar with how far they could look into OIA matters. The most that they did was review the list at officials meetings and sometimes seek some clarification. They may have offered advice about how we might want to process a request but they never instructed as they understood that the request was for the agency to respond to. I cannot however say the same for the staff in many ministers’ offices. Most were extremely risk adverse on behalf of their ministers. Often they would take it on themselves to seek copies of OIAs and give notes on how the response should be responded to. I never had a problem suggesting to ministerial staff that they may want to think very carefully about seeking copies of information as this may result in them being captured by a later request for information. I have had ministers’ staff screaming down the telephone at me, threatening me with dismissal or being barred from parliament in an effort to get me to change my mind on how requests will be processed.’’ – Kurutia Seymour, OIA responder for 20 years The most striking submissions come from public officials telling stories of politicians attempting to manipulate how OIA requests are handled. Kurutia Seymour says that reflects the politicisation of the public service. Where once ministerial staff were drawn from parliamentary services and would serve successive governments, now they’re handpicked and partisan.
One anonymous submitter sums it up: ‘‘The incentives to comply are simply not there. It’s all about minimising disclosure to protect ministers’’.
Several anonymous submissions, apparently from officials, suggest an independent body could co-ordinate national training and review sensitive decisions, to reduce political interference.
On the record
‘‘There are issues arising during the process of locating, compiling and releasing information for OIA requests that are the direct result of poor recordkeeping practices and inadequate information management systems . . . These issues frustrate the access to official information to which New Zealanders are entitled.’’ – Richard Foy, chief archivist Several submitters – including Boshier – point out that the poor reporting of OIA performance makes it hard to measure exactly how the act is being applied. Government departments report to the State Services Commission (SSC) but that does not apply to ministers’ offices.
Even the SSC reporting only counts how many requests are answered in the 20-day statutory timeframe, not what percentage are fully or partially refused, or on what grounds. If a requester receives 100 blacked-out pages, but the response arrives within 20 days, that’s applauded as a complying response. A Stuff attempt to extract that more detailed information revealed most departments don’t even collect that data.
In his submission, Boshier says ‘‘uniform collection and reporting of data on OIA requests is likely to have the single biggest impact on improving agency performance’’.
Australian law sets out which statistics about information access agencies have to keep and Boshier says similar rules here ‘‘would be immensely beneficial’’.
But it’s not enough just to record how OIA requests are treated. Several officials, including chief archivist Richard Foy, point out that official information itself is not being well enough recorded and organised.
As Ecclestone says: ‘‘You cannot get access to information if it’s not being well managed.’’
What’s the answer?
‘‘The Act needs a complete overhaul . . . The OIA is imperfectly executed and is a weak public information act.’’ –
Sir Geoffrey Palmer
Palmer, a public law expert, advocates combining the OIA and its local government sister act, introducing an information commission and setting up a uniform system for proactively releasing information.
Public officials call for the legal protections covering information released in response to OIA requests to be extended to information proactively released.
By far the most common solution suggested by those who request information, is a penalty regime for agencies failing to comply. Some suggested hitting chief executives in their back pocket, with daily charges for every day of lateness. Even some submitters who respond to OIAs suggested penalties could help provide an incentive to do better.
Many submitters note the Law Commission’s 2012 review made sensible suggestions, which were never implemented.
The submissions show the law is broken. But as law expert Sir Kenneth Keith points out, having been involved in the Law Commission review, there’s no point in finding out how broken, by conducting a review, unless there is political will to fix it.
‘‘The legislation has already been the subject of reviews by the Law Commission and the Office of the Ombudsmen. The Government response has been limited at best. Given that history, what is the point of another review?’’