Ways to fill in the OIA blanks

As part of the Stuff project Redacted exploring the problems with the Official Information Act, Andrea Vance and Nikki Macdonald consider possible solutions.

It was 1982 and computers were so novel that

Time magazine made the PC its person of the year. In the 37 years since, computers have been radically transformed. The Official Information Act has not.

Passed to make governments more transparent, and to put the power of information back in the hands of the people, the OIA now exists in a world of information overload that could scarcely have been imagined by those drafting the legislation.

And it’s not just technology that has changed the way information is used, shared, processed and kept. The OIA fails to take account of the exponential growth of the public relations industry, which controls and in many cases obstructs or limits the flow of official information.

It also fails to take account of the perceived politicisation of the public service – the concern that officials prioritise the potential for ministerial embarrassment over the public’s right to know.

And while the Office of the Ombudsman has reduced its substantial backlog, complaints can still take months to resolve and the watchdog can’t enforce compliance.

So can we fix it for you, the public?

THE PROBLEM – DELAY, DELETE, DECLINE

The 20-working-day time limit for responding to OIA requests is supposed to be a maximum, not a target. But with no penalties for delays, and with an overstretched Ombudsman’s Office, there’s little incentive for prompt replies.

In 2014, prime minister Sir John Key confirmed what everyone suspected – that ministers, and officials, string out the release of information to take the heat out of a political event and control the news cycle. ‘‘Sometimes we wait the 20 days because, in the end, Government might take the view that’s in our best interest to do that,’’ Key admitted.

Manipulation can also work in the opposite direction, if releasing information is politically convenient. 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 less than 20 working days.

Part of the problem is that OIA response statistics are patchy at best. The State Services Commission (SSC) now regularly reports whether or not government departments are responding within 20 days. From July to December 2018, almost 95 per cent of requests were completed on time.

The SSC says response times have been improving since 2015, but the latest statistics are not directly comparable with previous years, as police – who receive about one-third of all OIA requests – have been removed from the overall statistics. In the previous six months, police and the Earthquake Commission were responsible for more than half of all late OIA responses. The SSC justified police’s removal – along with the Defence Force – on the basis they ‘‘distorted’’ the overall public service results.

While the percentage of requests being completed within 20 days is important, it tells us nothing about the quality of responses being provided – whether an agency is declining requests it shouldn’t, or responding with 100 blacked-out pages. Of the 723 complaints to the Ombudsman from July 1 to December 31, 2018, only one-fifth related to delays. More than half (51 per cent) of complaints related to requests being partly or fully refused.

A 2015 investigation by then chief ombudsman Dame Beverley Wakem found ‘‘limited tracking and monitoring of OIA related activities’’ and recommended all agencies should record when requests are turned down, why and who was consulted. However, a Stuff investigation found many government departments still cannot even say whether requests have been declined or fully or partly granted.

There were no figures at all for police in the latest SSC release, as they were unable to report compliance due to a ‘‘design error’’ (now fixed) in a new OIA tracking system they’re implementing. Police say their new system was rolled out nationally in July last year and will be able to report everything from extensions, transfers and partial and full denials to what the request was about and on what grounds any information was withheld.

POSSIBLE SOLUTIONS

All agencies should have regular and standardised reporting on compliance with the OIA. It should include delays, full and partial refusals, extensions, transfers and withholding reasons.

One incentive to get agencies to respond more speedily would be fines for delays, which increase with the length of the delay. While fines would be logistically difficult for individual requests, they could be enforced if statistics showed a department was a persistent offender.

Then Labour MP David Parker – now attorney-general – once proposed a member’s bill, The Ombudsmen (Cost Recovery) Amendment Bill, which would have charged agencies when the Ombudsman found they had wrongly withheld official information. It was defeated in Parliament.

The Law Commission’s 2012 OIA review recommended appointing an Information Commissioner to oversee how the law is implemented. Failing that, the Ombudsman should be given more enforcement powers.

Every agency should have an OIA officer who is responsible for making sure their system works, similar to the existing privacy officer system.

If an extension is needed, the time period should be limited to another 20 working days, and agencies should have to specify what work is required to justify the extension.

Information should only be refused on the grounds that it’s about to be made public if publication is to be within four weeks of the decision on the OIA request.

There is anecdotal evidence that agencies are abusing provisions that say a request may be refused if the information cannot be made available without substantial collation or research. Agencies should have to estimate the volume of information and time involved.

Everyone from the Law Commission to Wakem has recommended government agencies really start walking the talk on transparency, by proactively releasing information, instead of waiting for requests to come in. Many ministries already routinely publish statistics, reports and briefings to incoming ministers and the government is now releasing Cabinet papers. That’s a win-win, as it makes information easily available to the public and should reduce the number of OIA requests agencies receive, and enable them to manage the process without the stress of a 20-day deadline.

THE PROBLEM – PLAYING POLITICS

The OIA is clear that an information request to a government department should be decided by that department – not the agency’s relevant minister. In practice, the ‘‘no surprises’’ policy means politically sensitive requests do end up on the minister’s desk.

Wakem’s 2015 investigation found in some cases ministerial advisers tried to limit the scope of OIA responses or even pressured the department to change its decision.

While in opposition, Parker summed up the problem: ‘‘Government departments ought not to be seeking permission from their minister’s office to release something; they should be doing their duty.

‘‘They might tell their minister that it is happening, but they should not be seeking approval to do it, or negotiating through ministerial advisers and government departments for that to happen. I know that is happening, we all know that that is happening, and it needs to be stamped out.’’

POSSIBLE SOLUTIONS

Chief Ombudsman Peter Boshier has called on ministries and ministers to agree a protocol for dealing with OIA requests that need ministerial involvement. His model agreement promises ministers ‘‘will not provide inappropriate input, such as raising irrelevant considerations (like political embarrassment), or asking or instructing [agencies] to act in a way that would be contrary to the requirements of the OIA, including withholding or delaying release of official information without any proper statutory basis’’. Boshier says having clear protocols ‘‘makes everything more transparent. It means everyone involved – officials, ministerial advisors and the ministers themselves all understand their respective roles’’. He plans a detailed review to confirm and monitor their use.

If ministers have to be consulted, they should not be told who has made the request, to avoid personality-based political interference.

Public service bosses should be made accountable for failing to uphold the act. At the moment, neither officials nor ministers face any repercussions, bar a $200 fine for obstructing an Ombudsman’s investigation. In Canada, officials who falsify, conceal or destroy a record can be imprisoned for two years and fined $10,000.

THE PROBLEM – MISSING LINKS AND LEGAL LOOPHOLES

While most public organisations are covered by the Official Information Act, there are some notable exceptions.

Public-private partnerships and outsourced services now make up a big portion of public spending. Despite the public interest, information about those ventures is often denied on the basis that it is commercially sensitive.

Another frequent challenge is obtaining information that is covered by legal professional privilege. Although the OIA says this should be released if the public interest test is met, it very rarely is.

POSSIBLE SOLUTIONS

The OIA should be extended to cover Parliamentary Service and the Office of the Clerk, Ombudsmen, the auditorgeneral, the Independent Police Conduct Authority, the Inspector-General of Intelligence and Security, ACC complaints resolution contractor, Air New Zealand, and the state-owned power companies. The attorney-general and solicitor-general should also be covered by the OIA, in their role as Law Officers of the Crown.

Legal privilege should only apply if the matter is before the courts, or soon to be, or could harm the government’s legal position. Agencies must be required to demonstrate a strong case of harm before withholding legal advice.

THE PROBLEM – TECHNOLOGY STRAIGHT OUT OF 1982

Just because the act was passed in the infancy of the personal computer doesn’t mean information should be provided in a format straight out of that era. OIA requests are often answered with scans of paper documents, which are not searchable, and scanned tables of rows and rows of data which cannot be easily processed. While requesters can specify the format they want their answers in, they shouldn’t have to.

POSSIBLE SOLUTION

Information should have to be provided in a digital format that is easily accessed and searched and data should be sent in spreadsheets, so the information is easy to use. Scanned PDFs should be banned.