When ‘no surprises’ actually means pointless delays

The police have fallen foul of the Government’s information watchdog over a political ‘no surprises’ policy.

The agency allows 72 hours to alert its minister to any upcoming release of documents under the Official Information Act.

The convention – standard across the public service – gives the Government time to prepare ahead of any potentially contentious or embarrassing issues.

But the Office of the Ombudsman has rapped police, saying the practice shouldn’t delay the release of information to the public or interfere with its obligations under OIA legislation.

The problem came to light after a member of the public asked police for information about a consent form which allowed police officers to assume people’s online identities to gather information.

Both the New Zealand Bar Association and the Auckland District Law Society had raised concerns and the issue hit media headlines in November 2021.

The Act was passed in 1982 and allows all New Zealanders to ask the government or any public body for information. There is a 20-working-day time limit for agencies to respond to requests – and this is supposed to be a maximum, not a target.

Police met the deadline – with officials responding to the requester on the 20th working day. But he noticed the letter was dated within four working days – the agency had sat on the response until it had communicated with then-Police Minister Poto Williams.

The requester complained to the Ombudsman specifically raising police’s statutory obligations to communicate a decision ‘as soon as reasonably practicable’.

Chief Ombudsman Peter Boshier established the response letter was created on day four of the 20- working day period, but not finalised, and police were working on it up until day 16, when it was approved by the agency’s executive.

‘‘This meant that police was in a position to communicate its decision to the requester at this

point,’’ he wrote in a case note.

Instead, the documents went to the minister.

‘‘The information at issue was not particularly complex or sensitive, nor was there a substantial amount of documentation to review,’’ Boshier said.

Boshier said, although the legislation does not expressly provide for the ‘no surprises’ notifications, they are allowed – provided it doesn’t interfere with an agency’s ability to comply with its OIA obligations.

‘‘Where possible, decisions should be notified to the minister at the same time as they are communicated to the requester,’’ he wrote.

In some cases a short period of advance notice may be required so a politician can be properly briefed, he said. Boshier said police did not demonstrate that a 72-hour notification period was necessary, and three to five days ‘‘is likely to be unreasonable’’, he added.

Police told the Ombudsman it has amended its practice. A spokesperson confirmed most decisions are now notified to the minister at the same time as they are communicated to the requester.

The agency acknowledges notice of the decision could have been provided earlier to the requester – ‘‘in this instance’’.

Separately, Boshier says he is taking a tougher line on ministries and politicians who fail to meet deadlines set out in the legislation. Now he intends to make formal findings and recommendations and report them to relevant ministers, local authorities and Parliament.

‘‘It’s a complete failure if a request is not responded to within the time limits provided in these Acts and this failure is unacceptable,’’ Boshier said.

In 2019, Stuff first published the Redacted series exploring the problems with the Official Information Act. Three years on, we’re revisiting it to see if anything has changed.