Open Government – Briefing to Minister Hipkins, part one: Secrecy Clauses

As we have written before, Aotearoa New Zealand has been a member of an international organisation called the Open Government Partnership since 2013. We have been working, together with other civil society organisations, on developing the country’s next action plan over the last couple of years.

The Minister for Public Services, Chris Hipkins, met with some of the civil society organisations online at the end of October – the first time in the development of this action plan that he had met with us. In the meeting he indicated he would be using some of his summer break to do some more reading and thinking about the next action plan. The civil society organisations decided to take the opportunity to provide the Minister with some reading that set out some of our thoughts.

NZCCL’s contribution to the briefing took the form of articulating a problem that needs addressing, and an opportunity that could be grasped as part of the next National Action Plan. This article sets out the problem that needs addressing. A subsequent article sets out the second part of our briefing – the opportunity that needs to be grasped.

The continuing problem of secrecy clauses

The government has taken a number of positive steps in relation to access to information. However, the government’s credibility on openness is seriously undermined by the all-too-frequent introduction of legislation that contains a secrecy clause.

These clauses are sometimes formulated as confidentiality provisions that apply to too much information, or that only permit disclosure in limited circumstances. These can mean OIA requests have to be refused under section 18(c)(i) as being ‘contrary to the provisions of a specified enactment’ – to which, of course, no public interest test applies. On other occasions, Bills have amended the definition of ‘official information’ in the OIA, in order to place certain kinds of information outside the scope of that Act, even though the organisation is still covered by it. The table below sets out some of the provisions introduced in the last four years. There are many more, enacted previously. Some of these echo pre-OIA legislation, or early post-OIA legislation (e.g. s.100 of the Commerce Act), so date from an era when ideas around the balance between secrecy and openness were very different.

What appears to be happening is that every department thinks it has a ‘special case’ why the issue of disclosure or non-disclosure should not be dealt with under the OIA’s regime for weighing competing public interests. Often clauses seem to have the intention of providing reassurance to people or organisations outside government that information which they may have to provide to government for particular purposes will not be disclosed by the department.

What these clauses signal is that the department does not trust or understand how the OIA works. Perhaps even more significantly, such clauses indicate that the government does not trust the Ombudsman to make the right decision on disclosure or withholding if they receive a complaint about a request being refused. The Council does not believe that this is a message that the government wishes to convey, but it is the signal that is being sent by this stream of secrecy clauses.

The Council hopes this is a problem that can be addressed through amendments to the procedures agencies must follow when developing legislation. There is an opportunity here for the government to strengthen its credentials regarding openness. We suggest the following, but would be happy to discuss these with you or officials:

1. A foundational step is for the Ministry of Justice to build into its guidance and procedures (and acknowledge on its website) that international human rights jurisprudence now clearly recognises that laws such as the OIA give effect to Article 19 of the International Covenant on Civil and Political Rights, and that as such, any clauses restricting the publication or disclosure of information are interferences with section 14 of the New Zealand Bill of Rights Act.

2. If this step is taken, it means that all such proposals will have to pass through a Bill of Rights Act vetting process.

3. However, we think there needs to be an explicit obligation on departments when advancing legislative proposals that contain any kind of secrecy provision to set out clearly why the withholding grounds in the OIA are insufficient to protect the information they want their new provision to keep secret.

4. Departments’ claims need to be tested. We suggest that before they get to the stage of sending proposals to Cabinet (let alone drafting instructions to Parliamentary Counsel), they are required to consult the Ministry of Justice and the Ombudsman, and the record of that consultation published. We would also like departments to be required to publish a paper on these aspects of its proposals for public comment. In our experience, waiting until a clause is in a Bill being considered before a select committee is far too late in the process to rectify these matters. By that stage not only is the department invested in getting the Bill through the House, but so is the Government. And committee members and agencies know that if they agree to amendments, they are creating further work for ministers. It’s much better to sort out these attempts to create secrecy clauses earlier in the policy and legislative design process.

To deal with the existing secrecy clauses on the statute book (and research indicates there are more than 70 of them – the table below is a subset from the last four years), the OIA could be strengthened in two ways. Our preference would be for a ‘notwithstanding’ provision to be inserted, meaning that the OIA always overrides the secrecy clauses in other legislation. An alternative – one found in the UK’s Freedom of Information Act 2000 – is to have a provision enabling a Minister to amend or repeal a secrecy clause by order. This then needs to trigger an exercise where all existing secrecy provisions are reviewed from first principles. This was originally the task of the Information Authority, in section 38 of the OIA as it was first enacted. Experience over time indicates the Authority should not have been disestablished by a sunset clause, not just in relation to secrecy clauses, but also in relation to proactive disclosure, which we deal with below.

Bill/Act	Clause/Section	Enacted date of secrecy clause	Type of information	Effect of provision
Canterbury Earthquakes Insurance Tribunal Act 2019	33	2019	Mediation	Exempts mediation information from the OIA
Climate Change Response Act 2002	5P	2019	Originator Control (ORCON)	Climate Commission must keep secret information disclosed to it by EPA
Criminal Cases Review Commission Act 2019	37	2019	Investigation	Exempts communications related to investigations from OIA
Insolvency Practitioners Regulation Act 2019	62	2019	Secrecy	Prohibits publication of information acquired by agency except in specified circumstances
Local Government Act 2002	35A	2019	Exemption	Temporarily exempts information on local govt reorganisations or disputes held by Local Government Commission from OIA
New Zealand Infrastructure Commission/Te Waihanga Act 2019	26	2019	Secrecy	Prohibits publication of information acquired by agency except in specified circumstances
Tax Administration Act 1994	18	2019	Secrecy	Revenue officers must keep sensitive revenue information confidential
Venture Capital Fund Act 2019	25	2019	Agency exemption	Exempts subsidiaries of VCF from OIA
Climate Change Response Act 2002	30GF	2020	Secrecy	Prohibits publication of information acquired by agency except in specified circumstances
Land Transport Management Act 2003	109A	2020	Secrecy	Prohibits publication of information acquired by agency except in specified circumstances
Privacy Act 2020	206	2020 (initially in 1993)	Secrecy	Commissioner and staff must maintain secrecy – not just for investigations but also for policy advice to government
Financial Market Infrastructures Act 2021	142	2021	Secrecy	Prohibits publication of information acquired by agency except in specified circumstances
Reserve Bank of New Zealand Act 2021	269	2003 (in old Act)	Secrecy	Prohibits publication of information acquired by agency except in specified circumstances
Civil Aviation Bill	199	TBA	Publication prohibition	Allows Minister to temporarily prohibit publication of information relating to international air cooperation application
Civil Aviation Bill	456	TBA	Secrecy	Prohibits publication of information acquired by agency except in specified circumstances
Commerce Amendment Bill	32	TBA	ORCON	requires confidentiality of shared information
Organic Products Bill	44A	TBA	Secrecy	Prohibits use of information provided for any other purpose
Protected Disclosures (Protection of Whistleblowers) Bill	17	TBA	Refusal ground	Allows information which would identify whistleblowers to be withheld under OIA
Screen Industry Workers Bill	32C	TBA	Type Exemption	Excludes collective agreements delivered to chief executive from the OIA
Electricity Industry Amendment Bill	47B	TBA	ORCON	Agency may impose conditions limiting use of information shared with other agencies
Oversight of Oranga Tamariki System and Children and Young People’s Commission Bill	59	TBA	Amends definition of ‘official information’	Removes communications between the Ombudsman and child-support agencies from the coverage of the OIA. Not just investigation-related communications - they're already exempt - but everything, no matter how trivial.
Oversight of Oranga Tamariki System and Children and Young People’s Commission Bill	109	TBA	Secrecy	Commission and every employee of the Commission must maintain secrecy in respect of all matters that come to the knowledge of the Commission or the employee in the course of any inquiry.

After sending this briefing to Minister Hipkins, the Council scrutinised the Data and Statistics Bill. As our submission to the Governance and Administration Select Committee points out, this Bill too attacks the principle that the OIA is the law that determines whether information is available to the public.