A Better Official Information Act
The Official Information Act is the legal expression of a very simple idea – we've got a right to know what our government is doing. The OIA is used every day by journalists, activists, the curious, and by people wanting to know about government actions and the policies that affect their lives. It has been a powerful tool for open and accountable government.
But both New Zealand’s Government and the very nature of information have been transformed in the generation since the OIA was enacted in 1982 (and the local government equivalent, the LGOIMA, in 1987). The law hasn’t kept up and issues with the current act include:
- Political spin doctors are increasingly limiting, controlling, and delaying the flow of information to the public.
- The public service increasingly prioritises avoiding Ministerial embarrassment to the point of self-censorship.
- Outsourcing of government services to private companies limits accountability.
- The Ombudsman, who we rely upon to uphold our OIA rights, has struggled to keep up with complaints, is powerless to enforce compliance, and there is no way to appeal their decisions.
There have been recent rumblings among journalists and commentators that we need to fix the OIA’s problems but, while we agree with them, we think we need to go further. Let's not just fix the OIA's shortcomings but also expand its scope so that it does a better job of ensuring we have the open, participatory, and accountable government that we deserve.
The New Zealand Council for Civil Liberties, and its members in their related pursuits, has extensive, first-hand experience with the current OIA. We’ve also spoken with other OIA users, considered what is done in other jurisdictions, and studied the Law Commission’s 2012 review of the OIA.
We've prepared a proposal for the next generation of Open Government. We’re proposing significant changes to the Official Information Act and other associated laws (e.g. the Ombudsmen Act and Local Government Official Information and Meetings Act).
We have deliberately not included too much detail to aid readability and in the understanding that the ideas we propose will require further consultation to ensure that they have the best chance of achieving the desired ends. We will release updates to our proposal based on the feedback we receive.
A new Open Government Commission
When the OIA was passed, the responsibilities for oversight were grafted on to the Ombudsmen’s office as an additional responsibility. While this now seems normal to us there are some significant issues with this approach including:
- The Ombudsman’s office is set up to investigate, advise and recommend; they have no significant powers to enforce compliance.
- The Ombudsman’s opinions are not subject to appeal or judicial review.
- Some OIA-related responsibilities, such as decisions about transferring requests, are in the Ombudsmen Act and this does not apply to Ministers and the Police.
While the Ombudsmen Act could be further modified, this would quite possibly end up conflicting with the consultative and advisory nature of the work they do.
Rather we believe that the administration of the Official Information Act and other related laws should be in a newly created Open Government Commission. This Commission should not just be advisory but given the power to make binding decisions to enforce the law. This would match what is done in the UK and other freedom of information jurisdictions around the world.
The Commission must not only be able to react to complaints, but also have proactive investigation powers. It should be obliged to work with the Chief Archivist on improving the quality of government record keeping and information management. It should also have a policy advice and training function, and be obliged to publish guidance on the interpretation and application of the OIA.
One practice used both by Ministers and agencies to control the political impact that will arise from the release of information is to withhold it for as long as possible, preferably until the political moment has passed.
The OIA requires that decisions on requests are to be made ‘as soon as reasonably practicable, and in any case not later than 20 working days’ after the request was received. But in most cases, agencies’ internal procedures are entirely arranged around responding on the 20th working day. While some requesters receive responses sooner than this, these are the exception rather than the norm.
We think the OIA should be amended to strengthen the incentives for agencies to make their decision and release the information as soon as possible. Ways to do this include:
- Requiring agencies to record when each stage of processing an OIA request was started and finished, and provide this information to the requester alongside the decision.
- Limit the maximum time for any extension to 20 working days, and require the extension notice to specify what work is required to justify the extension.
- Reduce the time limit for an agency to notify the requester that an extension will be made from 20 working days to ‘as soon as possible and no later than 5 working days after the day on which the request was received’.
- Amend the OIA to require that if a decision to release information is given to a requester, the information must be provided at the same time, not at a later date.
- Where any information is withheld under section 18(d) because it is about to be published, this refusal ground is only available when the information will be published within four weeks of the decision on the OIA request.
- Impose a per-day financial penalty on agencies for delays in response beyond these limits.
A major fault in the current OIA is that there are very limited repercussions for failing to meet obligations, or even for deliberately working against both the spirit and letter of the law. At most, officials may be fined only $200 for obstructing an Ombudsman’s investigation. There are also no provisions requiring the collecting and reporting of information on the operation of the OIA. We suggest making the following changes:
- Fine or imprison those officials who actively subvert the law by destroying, falsifying, or hiding information or encouraging others to do so. The equivalent Canadian law provides for up to two years in jail, while Indian law provides for significant fines for the public servants that are personally responsible for delays or obfuscation.
- Fine or imprison those officials who actively try to hinder the oversight body’s investigations.
- As noted above, provide for daily increasing fines against the agency (or individual Minister) in the event of delays in making a decision on a request, or in releasing the information.
- Require each agency’s Information Manager to provide an annual report to both the Chief Archivist and the Commission body on any problems they have encountered with compliance with the Public Records Act and the OIA within their agency, and require the Commission to publish these reports within one month of receiving them.
- All agencies subject to the OIA must keep statistics on the processing of requests, including timeliness, extensions, charging, transfers, withholding grounds and outcome of requests. These statistics should be collated and published quarterly by the Open Government Commission, with an annual report to Parliament by that agency. Response times, delays and extensions should be reported in working days.
- The Open Government Commission should collate and publish OIA investigation statistics, including the number of complaints against each agency by type of complaint (including withholding, delay, extension, charging and transfer), the number of extensions sought by agency, the timeliness of the complaint investigation, and the timeliness and quality of the agency’s response to the investigation.
Reducing political interference
The idea of open government is to make government information available as of right rather than subject to political calculations.
There is significant anecdotal evidence that a desire to control the news cycle has led to Ministers and their advisers becoming far more interested in managing what information is released in response to OIA requests. This interest is often translated into requirements that government departments consult Ministerial offices for advice on how to respond to OIA requests, even when the department already holds the requested information. This slows response time and opens up the possibility of political interference in the decision making process.
We propose to:
- Prohibit agencies from informing Ministers of OIA requests that have been received, except when necessary to consult the Minister on matters they are directly involved with.
- Provide greater clarity in the OIA about which information is deemed to be held by the Minister (particularly at different stages of the policy process), so that instead of consulting the Minister on disclosure, the agency transfers responsibility for answering the request to the Minister.
- Ministers should not be told by their agency who has made the request for information, so that all requestors are treated equally in both timeliness and fullness of responses.
- Ministers must not be provided with copies of OIA responses until after those responses are sent to the requestor.
Opening up commercial relationships
Government and commercial organisations have become a lot more intertwined since the OIA was passed in 1982. Services that used to be core government functions are now contracted out to private businesses and charities, and this has had the effect of reducing public access to information. Furthermore government spending is a significant part of our economy, but the government tendering process is opaque and the public’s ability to scrutinise both the granting and operation of contracts is largely impossible.
- OIA and other Open Government initiatives should be expanded to cover all out-sourced services and public-private partnerships. We expect this will include more clarity over what information is covered, as well as introducing processes that allow accessing it directly from the contractors rather than through the contracting government agency.
- Government to adopt open contracting so that all parts of the tendering and contract process are open. This might be best accomplished by adopting and implementing the Open Contracting Principles and Data Standard.
Opening up legal matters
A valuable provision in the OIA is that matters covered by legal professional privilege may be disclosed if the public interest in disclosing the information is stronger than that in upholding the protection for legal advice.
However, the common practice of agencies is to refuse to disclose any information created by their lawyers, without adequately considering the public interest in disclosure. In addition, lawyers often provide advice to government on issues where disclosure would not harm the government’s legal position in any way. We believe that the protection for legal advice needs to be amended to:
- Limit the legal privilege withholding grounds to advice received on matters that either are or are about to be before the courts. In other words, general legal advice and interpretations of current or contemplated laws should not be protected by legal privilege.
- Require agencies to demonstrate a strong likelihood of harm before being able to withhold instructions sent to Parliamentary Counsel asking them to draft legislation.
Proactively publishing information
When the OIA was written, typewriters and printing presses were the primary means of creating and distributing information. The OIA is sorely in need to address the changes brought about by computers and the internet. The Council believes that healthy democracy in our current information age requires proactive publication of information by government agencies.
The Open Government Commission should be charged and empowered to mandate the proactive publication of information. This will improve access to information while reducing OIA administration costs. New Zealand can learn from other countries’ newer right to information laws on this issue, but there are also useful foundations to build upon in sections 20, 21 and 22 of the existing OIA. To begin with:
- The Directory of Official Information required by section 20 of the OIA needs to be substantially overhauled and turned into a real online database of the information it is supposed to contain, so that it can serve its intended purpose of assisting the public with locating which agency holds the information they are seeking.
- The ‘policies, principles, rules’ and ‘guidelines’ that people have a right to access under section 22 of the OIA should be proactively published by each agency on their websites. An example of existing good practice in this area is Immigration New Zealand’s operational manual.
However, in the longer term:
- Regulations should be made to mandate publication of specific categories of information, possibly under section 21 of the OIA, such as:
- a full staff directory;
- details of the budget allocated to each area of the agency and information on how that has been and will be spent;
- all concessions, permits or authorisations granted (specifying the recipients);
- all policies, rules, procedures, guidance, manuals, and legal advice on interpretation of the laws administered by that agency
- contract information in accordance with the Open Contracting Principles (see below);
- a list of all reports or research studies commissioned, both those produced within the agency, and from external organisations, and product of such work (subject to the OIA’s withholding grounds).
- Every agency should be required to create and put into effect ‘publication schemes’, similar to those required in the right to information laws of the UK and Australia. These documents should build on the basic categories of information required by regulations to be published, but provide greater flexibility as they can be more agency-specific and change over time to reflect changes in the agency’s functions or in the machinery of government.
- We should set a long-term policy goal to evolve all information management systems that store the records of government so that the public can search and read a version of these systems directly.
There's no point receiving information or data when you can't read it or use it. This applies equally to people with disabilities who use screen readers or other assistive technology, and to those who want to include government data in their own databases, spreadsheets, or documents. The common obstructive tactic where agencies scan documents into images and so the requestor has to re-type the information runs contrary to the goals of Open Government and should be tolerated no longer.
- If the agency receives the OIA request electronically, data and digital information should be made available digitally and in the original file format wherever possible (unless specifically otherwise requested by the requestor).
- If the agency receives the OIA request verbally or on paper, it should be subject to a duty to explicitly clarify with the requester the form in which they wish to receive the information if this is not specified in the request.
- Where digital information is released to a requester, if it is not released in its original file format, it should be released in an open, accessible and reusable file format.
- Released documents including video and pictures should have no overprinted or superimposed statements about it having been released under the OIA.
- Section 15(1) of the OIA should be amended to require agencies to include a statement that makes clear the copyright status of all information released. The only permissible copyright restrictions are in circumstances where information created by a third party that is not a government agency has been released in response to a request.
- In the provisions on proactive disclosure, make it clear that no action to enforce Crown copyright will be taken.
- Amend the section protecting public servants from certain actions (section 48), so they cannot be sued for defamation, breach of copyright or breach of confidence for proactively disclosing information, providing it is done in good faith.
- Remove the national eligibility requirements for making requests. In practise this mainly seems to be used as a delaying tactic.
The Council believes that all government agencies should be covered by the Official Information Act. Additional agencies include, but are not limited to:
- The Independent Police Complaints Authority and the Inspector General of Intelligence and Security.
- The Pharmacy Council and other bodies created by the Health Practitioners Competence Assurance Act.
- Parliament (the Speaker in his Ministerial capacity, the Office of the Clerk and Parliamentary Service, but not individual MPs), the Parliamentary Counsel Office, and Parliamentary Officers such as the Ombudsmen, Controller and Auditor-General.
- The Mortality Review Committees.
- The ACC complaints resolution contractor.
- Companies in which the state (either through a single agency or through multiple agencies) has a controlling interest – such as Meridian, Genesis, Mighty River Power, and Air New Zealand – as well as those controlled by local councils.