Flawed OIA regime keeps public in dark In 2019, Stuff first published the Redacted series exploring the problems with the Official Information Act. Three years on, we’re revisiting the act to see what’s changed.
Two recent episodes illustrate the culture of secrecy that pervades the public service,
Journalists’ complaints about abuse of freedom of information laws are generally met with public apathy. But imagine there was a legion of officials who make it their business to thwart your work and waste your time. Those officials ultimately mean that the public is less well-informed on important issues.
Two recent episodes show just how frustrating it can be for media to try to extract information from the public service, where a culture of secrecy pervades.
This is information the public is legally entitled to. The guiding principle of the Official Information Act is that it should be made available unless there is good reason for withholding it.
And over the years, requests have revealed dodgy spending on the taxpayer purse, and the news that American billionaire Peter Thiel had been granted Kiwi citizenship after spending just 12 days in the country.
For journalists, it is both a vital tool and a thorn in our side.
I had requested information on two politically contentious issues: fresh water and political fundraising. Both cases resulted in my making complaints to the Office of the Ombudsman, Parliament’s OIA watchdog.
They are an illustration of a regime that is marked by delays, obstruction and a presumption against releasing documents for fear it might trip up ministers or discredit their departments.
The Ministry of Justice
The Government is reforming the rules for political donations. This year three parties have become embroiled in court cases centred on donations – and critics have long argued the law must be tightened to prevent abuses.
As part of the overhaul, the Ministry of Justice asked for public feedback on some options for new rules. In June, I asked the ministry to release the submissions to me. The No Right Turn blog made the same request, at roughly the same time.
This is a workaday request. Government departments regularly publish submissions as part of the business of decisionmaking. Parliament’s website uploads all written submissions to select committees on its website. Journalists often ask to see submissions – it informs our writing about people’s views on new policy and laws.
But the request was declined. The ministry used a provision of the act which allows it to withhold documents that it plans to publish soon. (In fact, they went up on the ministry’s website the following day.)
On the surface, this is fair enough. Waiting a day for the information was no hardship.
However, the ministry had also struck a deal with three political parties to keep their submissions secret.
This is very unusual – and especially troubling because it was a policymaking exercise designed to enhance scrutiny, and these parties were seeking to influence the rules under which they are allowed to raise funds.
If the submissions contained confidential information (such as membership figures or financial information), this could have been easily redacted.
A further request to the ministry media team, to ask which parties were granted secrecy, was ignored. That required me to separately ask parties for their submissions – almost all agreed. It remains a mystery which parties demanded anonymity. As a result, I have been forced to ask the Office of the Ombudsman to intervene – a process which will take many months and soak up the time of at least one investigator.
What I also didn’t know was that Victoria University’s Bryce Edwards had made a request for the information back in early April. After wrangling with the agency for weeks – it (erroneously) didn’t start on his request until late May because his correspondence didn’t include the words ‘‘Official Information Act’’ – it released all the information to him on July 1 – barring the three secret submissions. Unlike No Right Turn and me, it didn’t ask him to wait until publication on its website.
This might not seem like a big deal. But it is important for two reasons. Firstly, the agency responsible for the enforcement of the law and administration of justice appears to have breached the act.
It is required to release the information ‘‘as soon as reasonably practicable’’. So, all three requesters should have received it at the same time. The law also doesn’t allow the agency to release it to one person, but withhold it from others.
Secondly, the release to Edwards came in the same week the Government announced its planned changes to the donations regime. The proposals are opposed by National and ACT, and the Greens would like them to go further.
The release of the submissions would have added another layer to media reporting, and better inform commentary on the political announcement.
Last week the ministry apologised ‘‘for dropping the ball’’. A spokesman said: ‘‘In hindsight, we should have got this information to you sooner. This seems to have been a process issue at our end, and we are sorry about that.’’
Ministry for the Environment (MfE)
This one – on a political hot potato – dragged on for almost a year.
The Government has promised to tackle the sensitive issue of water allocation, a burning issue because of differing views on proprietary rights over water. That work is (slowly) ongoing – and some issues are tied up with the reform of the resource management regime.
On August 4, 2021, I requested a briefing note to the minister titled ‘‘Next steps for the discussion document regarding iwi, hapū and Mā ori landowners’ rights and interests in freshwater bodies’’. (I even helpfully cited the reference number allocated to the document.)
I also asked for a discussion document and other written material prepared on the subject. After 13 working days, the ministry wrote to say it needed more time, and extended the request by 20 days.
Nine days late on its extended deadline, it finally responded. It had waited 42 days to deny my request to release the briefing, citing a clause which allows MfE to keep secret ‘‘confidential advice to government’’. The discussion document was also withheld – and other documents, including meeting minutes, were only summarised.
Letters from Kā hui Wai Mā ori (KWM), a freshwater forum, to Environment Minister David Parker were also kept back using the same confidential-advice-to-government clause.
I contacted the Ombudsman, asking the office to review the content of the documents, and MfE’s refusal to release these documents.
In my complaint, I noted that KWM is not a government agency, but an expert group. And that its advice related to decision-making processes within another body may not be protected under the clause quoted by MfE.
I also argued that the allocation of water rights had been the subject of intense national debate, and public interest in the matter transcended the need to keep the advice confidential.
Submitting a complaint, finding and attaching documents, and making relevant arguments to the Ombudsman all takes time. Even, as a semi-regular moaner (I have the complaints page bookmarked in my favourites), these are work hours when I could be doing something more productive.
It also sucked up time in the Ombudsman’s office. The complaint took eight months to work its way through the watchdog’s processes.
During that time, the ministry had renamed the discussion document, and quietly published it on its website in February. I was not notified – and learned of it only in June when MfE received a prod from investigators.
In a letter, director Keita Kohere apologised for the delay in publishing the document and for the lack of communication around its release. The letters were released to me, plus another briefing. But she argued the original briefing document I requested was never ‘‘formally conveyed’’ to Parker and has continued to withhold it.
These are just two of many examples of resistance and avoidance. Some agencies rub up against the spirit of openness, while others downright contravene the law.