Inquiry puts spotlight on official information delays

A review of government agencies’ response to New Zealand’s Official Information Act has Brent Edwards and other journalists hoping for a clearer path to timely newsgathering. Cartoon by Rod Emmerson

New Zealand journalists are hoping a long-awaited review of the Official Information Act will lead to more government transparency and end a culture of delay and obstruction evident in many government agencies.

Twelve central government agencies will be formally reviewed by the Ombudsman’s Office, while another 63 agencies and all 27 ministers’ offices have been asked to complete a detailed two-part survey covering all aspects of the way they deal with requests under the Official Information Act (OIA).

But the review, which was announced at the end of last year, has been a long time coming.

It was first signalled in December 2012 by Ombudsman David McGee – who has subsequently retired – after he investigated the Ministry of Education’s response to a request for information about proposed school closures in Canterbury in the wake of the province’s devastating earthquakes.

That report found that the ministry had tried to remove requests from the OIA process and there was a suggestion that other departments were doing the same thing.

As well, the office had received anecdotal reports that journalists and others had encountered what it called “a variety of approaches” to OIA requests during the previous year. It said it had culminated during and since the 2011 election campaign in the OIA process being circumvented.

New Zealand’s Chief Ombudsman, Beverley Wakem, says this has the potential to erode public confidence in the OIA throughout the core public sector.

“The public needs the assurance that both the letter and the spirit of the law are being observed by the custodians of public information,” she says. “Our independent review of agencies’ OIA practice combined with greater transparency of OIA processes should help renew the foundation for that assurance.”

While she uses diplomatic language to describe the problem, most journalists are more blunt about what is happening: many would argue that not only is the spirit of the law being ignored, but so too is the letter.

Here is a not untypical response to a request, particularly one made to a minister’s office. First, just ignore the request. The onus is then on the journalist to follow up and demand a response. Often, busy journalists might let it slip before they they follow up their initial request. Several weeks can pass by. Once an office is reminded of the request, it will often plead ignorance and then start the process from the time it gets the second approach. That means considering it over the next 20 working days, as required by the Official Information Act.

The Official Information Act Process in NZ, Rod Emmerson

The Official Information Act Process in NZ, Rod Emmerson

 

More often than not, at the end of 20 days the office will reply saying it needs more time to respond to the request. Then, if you are lucky, you get some information. But generally it is received so late that it is less newsworthy than if the minister’s office had responded on time. The same approach is often adopted by government agencies, as they almost inevitably alert their minister to information requests they receive.

This has been the approach taken under the government’s ‘no surprises’ policy, which was first put into effect by the previous Labour government. While it no doubt helps the government’s political management of issues, it works against the purpose of the OIA to foster open government.

What will come of the Ombudsman’s Office’s investigation is unclear. What the legislation needs is more power so that government ministers and agencies that flout the law actually face a penalty for doing so. And the Ombudsman’s Office needs more resources so it can properly investigate complaints about OIA requests that have been delayed or rejected.

At the moment, the government and its agencies know they can get away with abusing the law because the office has neither the power nor the resources to enforce it. An appeal to the Ombudsman’s Office can take months, even years, to be settled. At that point the minister’s office or agency will grudgingly release the information. But by a deliberate strategy of delay, they ensure the public effect of its release is much less than had it been released properly under the time frame of the Official Information Act.

There is, however, some hope that the inquiry by the Ombudsman’s Office will have some effect. It is, at least, putting the spotlight on the government’s current handling of the process. And the office says that as evidence emerges of problems, a determination will be made on each specific case as to whether it can be addressed properly by the inquiry or whether it requires a separate stand-alone investigation. It also says any problems that can be resolved during the inquiry will be rectified immediately.

Journalists have long been frustrated by the stonewalling when it comes to Official Information Act requests that seek information an agency or its minister would prefer to remain secret. At the very least, the Ombudsman’s Office’s inquiry should lead to a renewed commitment to releasing information in the public interest rather than withholding it for political interests.

Brent Edwards is the political editor at Radio New Zealand

Rod Emmerson is the editorial cartoonist for The New Zealand Herald