Red Alert

Are the Nats dodging the OIA?

Posted by on May 22nd, 2011

The Official Information Act is a really important part of our constitutional framework. Passed back in 1981, it turned the old approach on its head. Before then, information was kept secret unless there was good reason to release it. Now State information is publicly released unless there is good reason to withhold it.

Government departments and agencies have pretty good processes for dealing with requests for official information. An important part of that is making sure information generated is captured and stored in the first place.

The world has changed a lot since the Official Information Act (OIA) was passed in 1981, one of the most notable changes being the emergence of email as a significiant means of information sharing and communication. The public service has adapted and information transmitted via email is captured and released under the OIA when requested.

Recently I was told that some staff working in National ministers’ offices have been setting up Gmail accounts in order to get around the OIA and to ensure that their communications aren’t captured. If they are transmitting ‘official’ information through Gmail and aren’t releasing it when asked, they are breaking the law.

I asked John Key whether he had a policy on the use by staff of Gmail. He is the Minister Responsible for Ministerial Services, so if staff working in the Beehive are breaking the law then the buck stops with him. He answered my question stating “The question the member asks relates to staffing matters which are the responsibility of the Chief Executive.”

Frankly, that’s just not good enough. John Key has a responsibility to ensure that the staff working in the Beehive are complying with the law and aren’t hiding official information. If they are using Gmail accounts to get around the OIA, John Key needs to crack down on that ASAP. Failure to do so suggests they have something to hide.


17 Responses to “Are the Nats dodging the OIA?”

  1. Deborah says:

    The easiest way to ensure that something is not OIA-able is to pick up the telephone and have a conversation. But any file note of that conversation is OIA-able.

  2. tracey says:

    OIA releases rely more than some think on integrity. I know the Ombudsmen is snowed under. I lodged an Appeal with the Ombudsmen on a matter of evidence for a client and it has been many many months and still not action. The type of evidence I requested is required by the professional body of the person in question, and is needed for ALL my clients to thoroughly assess their claim position. Because of the delay by the Ombudsmen the department in question continues to stymie this part of my clients claims. Once the Department has “made up its mind” it is VERY hard to budge, even with supporting evidence.

    Deborah has a point, it is sad that people forming the mainstay of democracy would need ways to avoid being OIA-ed, particularly when they campaigned on transparency.

    The OIA is more important to democracy than some seem to think.

  3. ghostwhowalksnz says:

    No surprise there.
    I sent a fairly innocent question via email to a minister about foreign students and when I didnt get a reply acknowledging the request, I emailed again but got a quick reply saying please send email via ministers “MP account’.
    I think we know why that was done.

  4. Jeff says:

    So, John Key is now taking a page out of Karl Rove’s playbook?

    Here’s how the Bush Administration played it:

    “On February 6, 2003, lobbyist Jack Abramoff sent an email to his former executive assistant Susan Ralston, who had since gone on to work for Karl Rove, requesting that she pass along an important message to her boss. A Louisiana Indian tribe, the Jena band of Choctaws, was seeking to acquire land for a casino, a project at odds with the interests of Abramoff’s tribal clients who feared it would siphon business from their own gaming establishments. Abramoff wanted Rove to intercede and “to get some quiet message from the WH [White House] that this is absurd.” After Ralston agreed to pass along word, Abramoff replied to thank her. But he slipped up.

    “Instead of responding to an email account administered by the Republican National Committee (sralston@georgewbush.com) as he had intended, he sent the message to Ralston’s White House address. The following day Abramoff was alerted to his error by a colleague, Kevin Ring, who’d spoken to a White House official to whom Abramoff’s request had been forwarded. “She said it is better to not put this stuff in writing in their email system because it might actually limit what they can do to help us, especially since there could be lawsuits, etc.,” Ring wrote. ”

    http://motherjones.com/politics/2007/03/emails-white-house-doesnt-want-you-see

    http://en.wikipedia.org/wiki/Bush_White_House_e-mail_controversy

  5. Spam says:

    I asked John Key whether he had a policy on the use by staff of Gmail.
    Did you ask this in the context of your concerns? If not, then his response is absolutely spot-on. He would probably have assumed that you were worried about public servents wasting work time on personal e-mails, which is not something that he should be dealing with.

  6. tracey says:

    you’re right spam, choosing the colour of the walls for Premier House is much better use of his time.

  7. David Farrar says:

    Chris when you were a Ministerial and prime Ministerial staffer, did you ever send an e-mail from work through a private e-mail account?

  8. tracey says:

    David, do you know of any emails sent by National MP’s or Ministers by private email which discussed work or during work “hours”?

  9. Jeff says:

    I don’t think that is the point David. Everyone uses private email accounts at work. The point is, are national staff using them to conduct official business? And, if they are, are they releasing them when an OIA request is made that covers those emails?

    It seems to be that the PM could settle it quickly with a couple of “yes” or “no” answers. If he can’t answer directly then there is probably more to it.

  10. ghostwhowalksnz says:

    Perhaps Farrar could answer his own question ?

    When HE was a Prime Ministerial staffer did HE ever send work related email through a private email account ?
    Actually hes fudged the question a bit to make it more innocuous, as of course people will organise their social life through private accounts, but government business ?

  11. Dotty says:

    This is exactly the scenario that led Wikileaks to leak Sarah Palin’s personal hotmail account… she was using it to get around FOI disclosure obligations.

  12. ehoa says:

    Show me a mninister who’s office has done that and I’ll show you a compulsive liar.

  13. tracey says:

    I think DF’s question of Chris is fair. It would have been even fairer if he had offered the answer from his experience also.

  14. Deborah – in practice that is true, but the reality is different. A phone conversation is still the transmission of official information, therefore it is technically covered by the Act. The reality, however, is that it isn’t practical to keep a record of every conversation or phone call (technically under the OIA every thought a Minister has about their portfolio is official information and therefore obtainable under the OIA, so some pragmatic realism is required!).

    Tracey – You’re right, it does involve integrity. As I’ve noted above, the law is not perfect and therefore adherence to the spirit and principles of the Act is what is important.

    Spam – my question was specifically to do with whether gmail accounts were being used to conduct ‘official’ business, which is very different to asking whether staff have personal email accounts.

    David Farrar – nice diversionary tactic. Yes, I have a gmail account and did so when I was in a Minister’s office. No, I did not use it for official business. On occassion a friend or colleague would email the wrong address by accident, but if it was work-related I would forward it to my work address so that it was in the system.

  15. jennifer says:

    At what point will it be fair comment to refer to this Key administration as corrupt? When someone is charged or when someone is convicted?

  16. Andrew says:

    This is a bit of non-issue, you correctly note:
    “If they are transmitting ‘official’ information through Gmail and aren’t releasing it when asked, they are breaking the law.” I think the Public Records Acts 2005 is probably more relevant.

    Why?
    The definition of “Official Information” in the Official Information Act 1982 captures information sent on “private email accounts” if the information relates to the “official capacity” of the Minister.

    Just because an email is on a Ministerial server doesn’t mean it is attainable under the OIA – it may be sent in the sender’s personal capacity, may relate to local electoral business, made be parliamentary and not ministerial business.

    See Ombudsman Casenote W47385 Ombudman 14th Compendium of Case Notes, 101 at 102.

  17. Andrew says:

    In relation to this issue, this may be of interest to some -

    http://www.nytimes.com/2010/06/25/us/politics/25caribou.html