Open Government – Briefing to Minister Hipkins, part two: Proactive Disclosure

As we explained in our previous article, Aotearoa New Zealand has been a member of the Open Government Partnership since 2013, and NZCCL has participated in the work to develop and deliver the action plans members of the OGP are required to co-create with civil society and the public.

In December 2021, the Council contributed to a briefing to the Minister for Public Services (Chris Hipkins) from several organisations that have been involved in the work to develop the next action plan.

Part one of our contribution concerned the continuing problem of the government introducing legislation containing secrecy clauses.

This second part of our contribution set out the opportunity that the Council thinks the government should grasp, to improve its proactive publication efforts.

Improving proactive disclosure of information

This government has made significant progress with proactive disclosure, including adoption of Cabinet Office Circular 18(4) on publication of Cabinet papers, publication by some ministers of briefings they’ve received from departments, and publication of ministerial diaries.

New Zealand’s proactive disclosure practices have grown up organically over the decades since the passage of the OIA, generally in response to Ombudsmen conveying consistent lines of interpretation about where withholding grounds do not apply, or where the balance of public interest favours disclosure. This can lead to good institutional support for the disclosures, rather than seeing them as an unwelcome external imposition.

However, there are also problems with practices that have grown up organically. These generally stem from two sources: the lack of a policy or legislative framework to regulate or guide this activity, and each Minister and department deciding how to give effect to the various proactive disclosure initiatives. This has led to what can be fairly described as patchy performance. An approach that relies only on policy instead of legislation can also be more easily reversed by different ministers or a change in government.

The Minister of Justice has signalled that he will not make a decision on whether to proceed with a review of the OIA until later in this parliamentary term. This creates an opportunity to do some of the thinking on proactive disclosure in advance of any review. Doing this work in the context of an OGP commitment in the next Action Plan would be ideal, because of the expectations that such work would be done (a) in the open and (b) in conjunction with the public and civil society. It would give effect also to the OIA’s purpose of enabling people to effectively participate in the development of policy.

• This comprehensive collaborative work on proactive disclosure should include:

• What the Information Authority recommended during its existence;

• What freedom of information legislation and non-statutory practice has led to in other countries – learning from other countries is a key aspect of the OGP;

• How the withholding of information from proactively released documents can be challenged before the Ombudsman without people having to make a fresh OIA request for an unredacted copy of it;

• Defining classes of information for proactive disclosure;

• Standards for the formats in which information is released, so that it is as accessible as possible to people with vision impairments (DIA, TKM and the Ombudsman have already done work on this, but again compliance is patchy);

• The creation – with public input to its design – of either a central online portal to which departments must upload these documents (like Norway and Mexico), or mandatory standards for how and where the information is published by each department. Both of these would need to be developed in line with the all-of-government Digital Service Design Standards, which have principles concerning ‘working in the open’ and ‘including service users in the development process’; and

• Co-development of a draft set of amendments to the OIA to incorporate the proposals developed during the commitment, should a review of the OIA be initiated by the Minister of Justice.