Clare’s post earlier today highlighted the excellent job done by I/S over at No Right Turn in analysing the slow response from some Ministers to OIA requests. This is a topic I feel qualified to comment on having played a role in the management of OIA requests in the previous government.
Firstly it is important to acknowledge that Labour in government did not have a flawless track record in this regard, and neither did the National government of the 90s before that. I can remember when coming to work in the Beehive hearing the story of a National Minister who kept a pile of OIAs that were ready to be released beside his desk. If the person who made the request did not keep pestering the Minister’s office the OIAs simply did not go out. Clearly that is not good enough, but it serves to illustrate the point that while a Ministry or Department will often process the request within the timeframe, the blame for its failure to be released on time will often lie with the Minister and their office.
In our time in government the Ombudsmen did highlight a number of deficiencies in processing, and I can recall attending a couple of meetings about that. By the end of Labour’s term the Ombudsmen’s annual reports indicated an improvement in the processing of requests. But that does not mean that we should not be even better when we are back in government.
So, what to do from here? This was a major topic of discussion at the Open Labour event on Saturday. It seems to me that there are some short and medium term things to do
- In the short term the National Ministers who have been highlighted by I/S need to step up their game. These delays are simply not on, and there needs to be some leadership from John Key on this.
- Just as we are now seeing increased transparency around Ministerial and MP expenditure, there should be a regular release of information on processing times for OIAs. I am sure sunlight will be a good disinfectant in this case.
- Looking further ahead I do think we need to move to see more documents pro-actively released, including Cabinet and Committee papers and background documents. This will actually reduce costs and promote efficiency.
- There are other practical measures as well, such as tightening up on transfer requirements. The idea that a Minister or agency will wait til just before a 20 day period is up and then transfer a request is unacceptable.
I think the solution here is a combination of updating the law and better enforcement of current practice. The OIA still serves us well and gives access to information that other countries are still envious of. But it is not working as well as it could. I am sure a multi-partisan approach is possible, and desirable on this. Perhaps making use of the expertise of Nicola White and others to lead the work?
Goodluck with this minefield.
Just as we are now seeing increased transparency around Ministerial and MP expenditure, there should be a regular release of information on processing times for OIAs. I am sure sunlight will be a good disinfectant in this case.
Absolutely. The law should be amended to require every Minister and every department to publish their annual stats. Some overseas regimes do this (or have their information commisisoner do it), and the results I think would be useful (at least, as long as politicians have any shame about non-performance).
I am sure a multi-partisan approach is possible, and desirable on this. Perhaps making use of the expertise of Nicola White and others to lead the work?
Well, the Law Commission is currently reviewing the Act, and I’m sure she’ll have a few things to say about it.
Perhaps an attitude shift would be a starter. You know…the public have a right to the information requested …
Perhaps an attitude shift would be a starter. You know…the public have a right to the information requested …
That attitude shift has already happened in the public service. The problem is that Ministers put their political desire to control information and make themselves look good ahead of the law and the public.
The idea that a Minister or agency will wait til just before a 20 day period is up and then transfer a request is unacceptable
It is also unlawful.
There must be retention of some aspects of the ability to make a decision in which information is refused to be released. Officials must have the freedom to express their views freely and without fear of reprisal in public for opposing or supporting policy or practice that may or may not be public.
The right to access information is fair but not to the detriment of the ability of officials to function. Refinement of the OIA is not just about Ministerial practice, it is also about enabling the maintenance of true public service.
There ARE aspects that serve well and the ability to hide things that are not ideal from a Ministerial becoming increasingly difficult. I think that the evolution of practice will result in the, already activist, office of Ombudsmen to drive further change. There are aspects not well served and that is because of enforcement and poor understanding of the provisions and interpretation, especially in regards to “Free and Frank” expression – which, shouldn’t mean, “because I disagree”. Importantly, the principles of the OIA include a statement about progressive openness which should be the guide to the Ombudsman, but this should be with caution maybe?
Also wonder, does the public have a right to ALL information which is generally what is meant when people say “I have a right to it?”. There are some things that aren’t in the public interest (whatever that may be) but it’s a tough nut.
The idea that a Minister or agency will wait til just before a 20 day period is up and then transfer a request is unacceptable
It is also unlawful.
But sadly, there is no effective remedy. You can complain, and the Ombudsman can find it was unlawful, but it doesn’t actually do you any good.
There must be retention of some aspects of the ability to make a decision in which information is refused to be released.
There is – s9(2)(g)(i) is the most obvious example. There’s also the executive veto, but that’s The Bomb, and if the government used it to overrule the ombudsmen in this day and age, they’d likely be looking for a new one.
The real way to protect officals from public reprisals for giving advice (as opposed to politicians for seekign it) is to use the privacy clause. In the ordinary course of events, there’s no public interest in knowing which policy analyst wrote which paper, and it is standard practice to sanitise such information under s9(2)(a). The other way of course is to protect and publicise the values of a neutral public service, so that people know its not their fault, and the politicians are to blame.
Also wonder, does the public have a right to ALL information which is generally what is meant when people say “I have a right to it?”.
This is not the Middle Ages, and we are not ruled by kings (reigned over, yes, for a little while longer at least, but not ruled by). It is our government. This means the default position is one of openness and the justification for secrecy must be very high indeed (and it gets higher every day).
People accept justifications around privacy. They accept them around “national security”, though in NZ its hard to see that as applying very often, and the spies are not seen as a legitimate institution to which it should apply. They don’t accept them around foreign relations, because that’s just monarchical bullshit, an attempt by MFAT to insulate foreign policy from the grubby paws of the masses. And they don’t really accept them around ordinary advice tendered by officials, because it was paid for with public money and so belongs to us.
Yes we must, otherwise we are forced to trust politicians – and that is a mugs game…
@Gipper. You are right that there still needs to be the ability to withhold for a variety of reasons. I think we need to have another look at how they are being used but there will be a place for them. Where I have got to though is that we do need to change the presumption about release to something more open and pro-active. It is the only way we will build trust and confidence in politicians and the system.
You do highlight one of the biggest risks though. The level of political debate needs to be mature enough to allow for the idea that there will be different, challenging advice and government will not always accept it. Both the media and politicians have a role in accepting this as part of robust government. I dont think we are there yet.
Grant Robertson is on Goodmorning!
!!!!!!
Your comment Grant this morning – Yeah. I agree with you. I have generally always taken a release first approach unless it shouldn’t be, the problem is in who’s view it shouldn’t. Concerns of Ministers, as you know, and those of officials are always quite different. I can see the application of the openness principle is beneficial to the public service, and that generally it is the poor application of definition for rationale to withhold by Ministers that causes the problem.
Blanket approaches to liberalising further the OIA will only cause officials to close down, not Ministers who have added layers of protection in any case. Section 9 needs a lot of re work and clearer accepted standards, but this would require the Ombudsman to finally admit that there is such a thing as precedent where the principles are concerned. Because WE ALL KNOW there is.
Maturity in politics IS the main concern though. It is healthy that there should be disagreement and discussion, its part of the robustness of policy development and on occasion it happens and this should be celebrated, it is afterall what the public pay for. But for now, and for some time yet, I think that saying all information is owned by the public is a sentiment rather than a reality. I take your point I/S, it should be, but it can’t be, not until there is no reprisal for officials. Parliament’s supremecy makes this untennable for officials, were a constitution supreme, perhaps then the freedom of expression rationale would be unnecessary. I don’t know.
Media will never let a headline slip by. Officials highlighting the flaws in a policy is what they are expert at doing in as much as they are at developing some policy or practice, but their disagreement should detract from their duty both owned and expected, to implement it.
“Officials must have the freedom to express their views freely and without fear of reprisal in public for opposing or supporting policy or practice that may or may not be public”
Isnt that what the blacking out is for? The info is public not the personalities
tracey… it’s seldom the individual who has to be concerned, the agency itself can be put under significant pressure in trying to manage their relationship with their Minister to the extent it is prohibitive. It’s also becoming more common to accept that the name of the official when acting in their official capacity is therefore not a private person and generally being discoverable. Hence why there is a hefty price for true free and frank advice.