How official information disappears
Deletions, disappearing information, differential treatment. Nikki Macdonald reports on the anatomy of a stymied Official Information Act request.
Remember the news that American billionaire Peter Thiel had been granted Kiwi citizenship after spending just 12 days in the country? Or the emails that showed why Massey University vice-chancellor Jan Thomas really wanted to ban Don Brash from speaking on campus?
Those details were revealed by Official Information Act requests. They show one of the great strengths of the law – the ability for you to see behind closed doors; to understand how officials think and interact; to penetrate the politicking and lay bare the public relations spin.
And the knowledge that information can be released can actually change behaviour.
Over the years, OIA requests have revealed dodgy spending on the taxpayer dime, from Shane Jones’ porn movies and then fisheries minister Phil Heatley’s family holiday to Chris Carter’s spa treatments and massages – all racked up on ministerial credit cards. That led to the information being routinely compiled and made public.
There have been few spending scandals since MPs knew their expenses would be regularly published for the world to scrutinise and critique.
It’s not just the high-profile cases that make the Official Information Act valuable. In the past year, Kiwis have used the act and its local government sister law to find out about everything from Parnell parking tickets and the reliability of Wellington’s bus route 24, to a Christchurch prospective house buyer checking the state of the property’s earthquake repairs.
But the power of information only works if that information can be easily accessed and understood.
Here we look at specific examples of how government departments are withholding information, obfuscating, concealing evidence or veiling the truth with great tracts of black ink.
THE BLACKOUT
If you’ve ever requested copies of documents or emails under the OIA you’ll be familiar with the sigh of exasperated disbelief that comes with the sight of pages and pages of blacked-out text.
My record is a 2013 OIA request to Te Papa, about its plans to build a new museum offshoot in Auckland. Despite the huge public interest in this multimillion-dollar, taxpayerfunded proposal, my request for information netted 183 pages, of which 100 were completely blacked out.
The scale and randomness of the redactions made it hard to shake the perception that a fiveyear-old had been let loose with a black felt pen.
The documents sported three different redactions of the seemingly uncontroversial phrase ‘‘strategic development plans’’. In one document, the whole phrase was blacked out; in another instance ‘‘development plans’’ was redacted but ‘‘strategic’’ was left visible; and in the third document ‘‘strategic’’ and ‘‘development’’ were left in, while just the word ‘‘plans’’ was deleted. Which obviously raises the questions of who controlled the deletions, on what grounds were they made, and – if they were really based on the law – how could they be so inconsistent.
When I complained to the Ombudsman, Te Papa reviewed the material it released and was ‘‘pleased to advise that we can now release more details’’. Tracts of text magically reappeared – an acknowledgement that they should never have been deleted under the law. Then in 2016 – when the Ombudsman finally considered my complaint – Te Papa released another tranche of information, which was by then largely out of date.
It’s a common pattern when requesting documents or emails, and the deletions are hard to challenge, as you can’t advocate the public interest importance of information you can’t see. While the Office of the Ombudsman can look at the redacted information and decide whether it’s been justifiably deleted, that’s a long process, which often renders the information no longer newsworthy or relevant.
And while the Ombudsman’s Office has tamed its huge backlog, complaints still take months to resolve.
It would hardly be surprising if the law was being poorly or inconsistently applied, given former chief ombudsman Dame Beverley Wakem found most government agencies (79 per cent) did not require their senior managers (who were often the decision-makers) to undertake any OIA training.
And it’s not just journalists who are affected. Of the 723 complaints to the Ombudsman from July to December last year, 70 per cent came not from reporters or politicians, but from private individuals.
THE CASE OF THE DISAPPEARING INFORMATION
In 2013, the Defence Force (NZDF) released a three-minute video at a press conference, showing some of the 2012 Battle of Baghak, where Lance Corporals Rory Malone and Pralli Durrer were killed and six other New Zealand soldiers were wounded.
Suspecting there would be more footage, the Stuff Circuit investigative team made an OIA request. In December 2014, Commodore Graeme Smith, of NZDF, let them know there were more than seven hours of raw video, and referred them to a video editor to get hold of it.
In April 2015, about 25 minutes of battle footage arrived. A staff member apologised for the delay, saying it had ‘‘evolved into a situation with many, many people wanting to have a say . . .’’.
Sources indicated that still was not the full footage, so they asked again. That was definitely it, NZDF replied. Only it wasn’t. In May 2015, NZDF admitted there was more video, but said it had to be cleared by then defence minister Gerry Brownlee.
The extra footage never arrived, so the Stuff Circuit team complained to the Office of the Ombudsman. Eventually, in August 2016, NZDF sent extra video and photos. In total, there were 45 minutes of footage, but metadata suggested clips were still missing.
By comparing the raw video with the press conference clip, the Circuit team showed that NZDF had edited the footage in a way that changed the viewer’s perception.
SAME, SAME BUT DIFFERENT?
You know the saying justice is blind – the idea that the law is supposed to be applied in exactly the same way whether you’re black or white, young or old, famous or unknown. Some examples suggest that’s not always the case when it comes to OIA requests.
Former justice minister Judith Collins once responded to an OIA request by Whale Oil blogger Cameron Slater in just 37 minutes. Then opposition justice
spokesman Andrew Little reported he had never had an OIA response back from Collins’ office in fewer than 20 working days.
Right-wing lobby group New Zealand Taxpayers’ Union has also complained its requests were treated differently. Last year, the group’s boss, Jordan Williams, said it started using fake identities because it believed Crown research institute Callaghan Innovation was stonewalling its OIA requests, and an insider said its requests were getting special attention.
Callaghan denied the allegations, but the Ombudsman is now investigating how the agency deals with OIA questions.
Differential treatment also extends to different agencies treating identical OIA requests in different ways. Try to find out the same information from all 20 district health boards or every district or regional council and you’ll quickly find out how differently the law is interpreted or implemented by agencies supposedly all doing the same job.
In 2016 I asked every health board about their waiting times for young mental health patients. In a model of how requests can be treated in the spirit of the law, Auckland DHB responded that the way the questions were framed wasn’t exactly how it collected the information, so could it change them slightly to better enable the DHB to answer. Wellington’s health board, meanwhile, said the information would take over a week to collate and would cost more than $400.
Similarly, when I asked regional councils to provide water-use data, the responses varied wildly. Auckland – which is by far the biggest council and has almost 10,000 staff – flat out refused, until I complained to the Ombudsman. Northland said it would take 125 hours and $9262 to manually extract the numbers.
Meanwhile Hawke’s Bay Regional Council clarified the questions and provided a complete set of data, in the format requested, within 20 days.
OUT OF SCOPE
An increasingly frequent reason for deleting swaths of text seems to be that the information is ‘‘out of scope’’ – in other words, not directly relevant to your question. It’s not clear where this comes from, as it’s not a withholding ground under the OIA.
It also seems to directly contradict the act’s principle of availability, which says that information should be made available unless there’s a good reason to withhold it.
In 2017, I’d heard the Department of Conservation was considering charging people to walk the Tongariro Crossing, so I sent an Official Information Act request asking for documents and correspondence assessing or evaluating the feasibility and/or merits of charging for access to the Tongariro Crossing and national parks.
The department identified – and forwarded – 23 documents that fitted the description. So far, so good. Except that about half of the documents’ contents were withheld, under various clauses of the OIA, and the other half was deleted as being ‘‘out of scope’’.
When your entire question is about the business model of the Tongariro Crossing, it’s hard to fathom how any part of a document entitled ‘‘Tongariro Alpine Crossing Business Case’’ could be considered ‘‘out of scope’’. And then there’s the fact my request clearly asked for documents relating to the theme – not the bits of those documents that related to the theme.
After re-requesting every document in full, by name, and complaining to the Ombudsman, most of the black veils of redaction were lifted.
THE SPIN CYCLE
The explosion in public relations professionals – known as spin doctors – has changed the way journalists get information from government departments.
Whereas once reporters could talk directly to public officials – the people who actually knew the answers to their questions – now PR people play middle man, sometimes facilitating, sometimes obstructing, but always controlling the flow of information.
At 11.54am on July 24, 2017, I asked the Justice Ministry to confirm that people complaining to the Human Rights Review Tribunal could expect to wait two years to have their complaints heard. At 5.17pm that day the ministry replied with a two-paragraph response, which failed to answer the question.
A later Official Information Act request revealed the censorship process that went on in the five hours in between. The email trail starts with a tribunal staff member confirming that he tells new claimants that a decision on their case may take up to two years.
Then the query is referred to the tribunal’s chairman, Rodger Haines, to add some ‘‘pretty words’’ about how the tribunal is trying to deal with the backlog. In reply, Haines forwards a comprehensive, full-page draft response in which he explains in detail why the delays are occurring, that the situation is ‘‘unsatisfactory’’ and what is needed to fix it.
None of those pretty words made it to the eventual response to me, raising the question of what happened to that great spirit of transparency and openness.
When I complained to then Justice Ministry chief executive Andrew Bridgman that his staff had censored-to-nothing a judicial officer’s response to me, the ministry replied that its response was appropriate as ‘‘while Mr Haines prepared a possible response, it was to the ministry to which the question had been addressed, and so it was the ministry that prepared and provided the final response and it was the ministry’s view that was sent back to you’’.
When I subsequently contacted Haines directly, I was told that was unacceptable, and that any request had to go through Justice Ministry communications advisers.
The case is now with the Ombudsman.