Fixing Official Information Act Abuses

How can compliance with the Official Information Act be improved when the prime minister candidly admits that the Government flouts the law ?

Mr Key earlier this month said that “Sometimes we wait the 20 days because, in the end, Government might take the view that’s in our best interest to do that.”

Mr Key’s words echo those of former Prime Minister Sir Geoffrey Palmer as long ago as 1992, when he commented that the act “is studied as to how it can be avoided, evaded or plain ignored.”

And another example of lack of respect for the law was the 1997 quote from an official who said that -

“The minister prefers to withhold information except where unavoidable. Information is seen as creating problems not opportunities.”

Concern about flouting of the act has come to a head in recent weeks following the publication of Nicky Hager’s Dirty Politics book and the release after the election of a number of pieces of information –

  • Radio New Zealand’s political editor, Brent Edwards, in May 2013 requested Ministry of Social Development advice about child poverty but did not receive the information until October 2014;
  • A draft Serious Fraud Office report putting the cost of economic crime at between $6.1 and $9.4 billion -  but benefit fraud at only $80 million -was not released until after the election; and
  • A Worksafe document advising that it had been safe to enter the Pike River mine since October 2013 was released to Campbell Live two working days after the election.

There are three key problems with the current system: lack of resources to enforce the law; deliberate flouting of the act; and inadequate understanding of the legislation by some officials.

Chief Ombudsman Dame Beverley Wakem two years ago advised that the Office of the Ombudsman was in crisis due to a high volume of complaints and insufficient resources to deal with them in a timely way. The Government in this year’s Budget responded by increasing the office’s funding from $9.9 million to $10.3 million for 2014/15. That will rise to $10.46 million subsequently.

The Ombudsman’s recently-released Annual Report appears to confirm that the extra resources are helping it to get on top of the backlog of official information complaints. In the past 12 months, the Ombudsman received 1453 official information and local government complaints, but completed 1856 complaints.

That should mean that the backlog of complaints starts to diminish and investigations become speedier.

However, more resources will not solve the other two problems.

In particular, it is difficult to envisage any sanctions for breaching the act which would outweigh the political stakes involved if a government thinks that holding information back until after an election will assist it at the polls.

Nevertheless, here are 10 suggestions for improvement -

1 Appoint an Information Commissioner as a champion of official information in the public sector, as recommended by the Law Commission.

2 Revisit the 1997 suggestion that the 20-working day limit be reduced to 15 working days and remove the withholding ground under section 18(d) that the information “will soon be publicly available.”

3 Include Parliament in the Official Information Act.

4 Adopt the Law Commission’s proposal of pro-active release of information by government agencies - rather than waiting for requests – to promote a culture of transparency.

5 Voters should make known to politicians from all parties their views about the importance of transparency and their disapproval of flouting of the law.

6 Politicians and the Government should lead by example by showing respect for the law and actually obeying it.

7 Ensure that the Office of the Ombudsman has adequate funding.

8 The State Services Commission should ensure that government agencies provide proper training to staff about official information and monitor how requests are dealt with.

9 Draw up specific rules for how departments and ministers are to interact over official information requests and, in particular, how the “no surprises policy” is to be reconciled with the act.

10 Allow the Ombudsman to draw matters of concern to the attention of Parliament and require the responsible minister to respond within a specified timeframe.

Remember, official information does not belong to the Government or to departments. It is the public’s information and the public has a right to access it promptly.





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