NZ Council for Civil Liberties

Submission: Local Government Official Information and Meetings (Amendment) Bill

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The full text of our submission to the Governance and Administration Select Committee recommending substantial amendments to the Local Government Official Information and Meetings Amendment Bill.

About the New Zealand Council for Civil Liberties

  1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain civil liberties.
  1. We wish to make an oral submission to the Committee.

Introduction

  1. As a country, New Zealand likes to say what a strong democracy it is, how we understand the need for strong democracies to be underpinned by the informed participation of voters, and how open and transparent our governments (central and local) are, thanks to the Official Information Act (OIA) and its local government counterpart, the Local Government Official Information and Meetings Act (LGOIMA).
  1. Unfortunately, this bill and the process leading to its introduction demonstrates the fragility of such claims.
  1. Opportunistically tacked on to reforms to strengthen people’s right to information when buying a house, this bill will also weaken people’s right to information about other issues. These latter provisions are unnecessary, and out of step with international best practice. No evidence has been provided to substantiate this retrograde step, and the proposals to undermine legislation that the High Court said is of “constitutional significance” have not been subject to public consultation.
  1. Worse still, this bill enables a Prime Minister to override the Ombudsman and say that they must not recommend the disclosure of certain information. Such a provision demonstrates contempt for the fundamental principle of freedom of information laws, which is that a politically independent arbiter makes the final decision on whether or not information should be disclosed.
  1. The New Zealand Council for Civil Liberties opposes this bill, unless amended to remove Part 2 (clauses 11 and 12).

No case established

  1. The bill’s Regulatory Impact Statement (RIS) begins in a positively Orwellian way, describing measures that will weaken people’s rights to information as ‘Strengthening’ the Local Government Official Information and Meetings Act 1987.1Regulatory Impact Statement: Strengthening the Local Government Official Information and Meetings Act 1987, https://www.dia.govt.nz/diawebsite.nsf/Files/Local-Government-2022/$file/Regulatory-Impact-Statement-Strengthening-the-Local-Government-Official-Information-and-Meetings-Act-1987.pdf
  1. The RIS states on page 1 that

The New Zealand intelligence agencies (the New Zealand Security Intelligence Service and the Government Communications Security Bureau) identified this gap when they started to proactively talk with local authorities about the risks of foreign interference in local government.

  1. In other words the reduction of our rights under LGOIMA, which are underpinned by section 14 of the NZ Bill of Rights Act and Article 19 of the International Covenant on Civil and Political Rights (ICCPR), is being advanced by our spy agencies.
  1. The RIS states on page 2 that,

The evidence the Department holds on the extent of the problem is limited.

  1. It talks about ‘the gap in the Act’. It is this so-called ‘gap’ that is meant to justify the weakening of our rights. The RIS puts it this way:

The Local Government Official Information and Meetings Act 1987 (the Act) does not currently provide conclusive withholding grounds for information that would likely prejudice the security or defence of New Zealand or the international relations of the government of New Zealand.

  1. On page 5, the RIS notes that the LGOIMA is the product of a working group that considered how to apply the principles of the OIA to information held by local authorities. It notes that this working group,

considered that similar legislation was appropriate for local authorities but did not consider the OIA withholding grounds related to security, defence, or diplomacy to be relevant to local authorities at that time.

  1. However, all the limited evidence the Department might hold that could have been advanced to make the case for weakening our rights has been redacted from the RIS and published Cabinet papers under section 6(a) of the OIA. There is a certain circularity to claiming national security protections for evidence to support weakening our democracy in order to protect national security.
  1. Effectively, the government and spies are asking the government to take their word for it. This is difficult to accept from an agency with a poor track record with regard to actions that undermine our democracy. Most recently, in November last year, the NZSIS was forced to publish a statement regarding its unlawful obtaining of data about Nicky Hager’s telephone calls. It had to apologise unreservedly and was made to acknowledge that:2NZSIS media statement – settlement with Mr Hager regarding 2012 activity, 30 November 2022, accessed from https://fyi.org.nz/request/21467-removal-of-nzsis-apology-to-nicky-hager-from-website

Investigative journalists such as Mr Hager play an important role in society, including to provide an additional check on executive functions and powers. The role of Mr Hager is considerably more difficult given his subject matter of expertise and the difficulties of obtaining information which is protected by various and numerous confidentiality mechanisms. NZSIS recognises that its actions in 2012 could have resulted in a chilling effect on such important work.

  1. The statement also said that the Acting Inspector-General of Intelligence and Security had concluded that the NZSIS “failed to show necessary caution, in a free and democratic society, before carrying out investigative activity into a journalist’s source.”
  1. Why should MPs and the public take the word of an agency that behaves like this that it is necessary to weaken the rights of journalists (and the rest of us) by increasing official secrecy?
  1. It might be different if the evidence had been disclosed, or even if the arguments had been made and tested through a public consultation on the proposals to weaken an Act of “constitutional significance”.3The Wyatt Co (NZ) Ltd v Queenstown Lakes District Council [1991] 2 NZLR 180, p 19  But as the RIS notes on page 3, the Department had not engaged with local authorities or spoken to the local government sector organisations before making its assessment under the RIS and advising ministers. As the RIS acknowledges, this “limits the Department’s knowledge” of the issue.
  1. The Department for Prime Minister and Cabinet, Ministry of Foreign Affairs and Trade and the Ministry of Justice were consulted, along with the NZSIS and the Government Communications and Security Bureau. The government has pursued this weakening of our rights without issuing a consultation paper to the public to seek feedback from lawyers, academics, journalists, civil society organisations and members of the public.
  1. Indeed, in contrast to privileging those with an interest in official secrecy for political and administrative convenience, the RIS says that the option of importing section 6 of the OIA into LGOIMA,

wouldn’t maintain the availability of official information and may affect a small segment of the population, including academics, journalists, and any member of the public with an interest in accessing the information.

  1. Clearly academics, journalists, and members of the public don’t rank highly amongst the people whose voices should be considered when making policy on diminishing their internationally recognised rights.
  1. It is possible that evidence for the claimed justification for this bill could be found in the paper considered by Cabinet’s External Relations and Security committee in November 2021. But in spite of the Government’s policy on proactive release of Cabinet papers, this paper and the minutes of the meeting (ERS-21-MIN-0042 is the document reference) do not appear to have been published.
  1. In the name of protecting our democracy, a secretive process has been used to weaken our democratic rights. It’s almost like someone in one of the agencies said to Ministers “Very nice democracy you’ve got there – a shame if something were to happen to it.”

Unnecessary changes fail NZ Bill of Rights Act test

  1. People’s rights to seek, receive and impart information are protected under section 14 of the New Zealand Bill of Rights Act (which in turn implements Article 19 of the International Covenant on Civil and Political Rights that New Zealand is a signatory to). The LGOIMA gives practical effect to aspects of people’s right to seek and receive information.
  1. Because of the government’s secrecy, we cannot see the evidence it claims supports the need to weaken our rights. Without public scrutiny of the evidence, the case for change is not made. And without the case for change being established it is unlikely the tests for weakening our rights under section 14 of the New Zealand Bill of Rights Act have been met.
  1. Section 5 of the New Zealand Bill of Rights Act requires that limitations on people’s rights under section 14 of that Act must be necessary, justified, and proportionate to the objective.
  1. The changes to LGOIMA made in clauses 11 and 12 of the bill are unnecessary because the Act already provides sufficient means to withhold information from disclosure where it is in the public interest to do so.
  1. Without the evidence, it is not possible to establish whether the changes are justified.
  1. The changes are unlikely to be proportionate to the objective, as they propose not only to insert withholding grounds that the Ombudsman cannot overturn if the balance of public interest favours disclosure, but also add the ability for the Prime Minister to issue a certificate requiring the Ombudsman not to recommend disclosure of information.
  1. Because the changes to LGOIMA are not necessary, they fail the section 5 test, and Parliament should not permit our democratic rights to be undermined in this way.

Existing LGOIMA protections are sufficient

  1. As noted, the RIS indicates that the intelligence agencies believe that the existing grounds for withholding information under the LGOIMA are insufficient to protect information these agencies – or MFAT or any other government department – might provide to them. In their view, information would have to be released which would harm national security or New Zealand’s international relations.
  1. This is false. The Act already includes provisions that enable it to refuse a request where the information is subject to an obligation of confidence where the continued supply of that information is in the public interest, or where disclosure would otherwise harm the public interest.4LGOIMA section 7(2)(c). In the OIA, the equivalent provision is section 9(2)(ba). This withholding ground is subject to a public interest override that means the Ombudsman can independently determine whether the public interest favours release or withholding.
  1. The Committee should also consider that by adding the proposed new subsections to section 6 of LGOIMA, it will be enabling local authorities to keep secret – without having to consider whether the public interest favours release – any information that might prejudice New Zealand’s international relations. While local authorities are not highly active in international relations, they often have sister cities, receive and send delegations to overseas counterparts to learn about issues confronting them, and occasionally even express a view on the conduct of overseas governments in relation to the human rights of people living there. Enactment of this amendment will mean that the local authority, and the Ombudsman will not have to release this information, even where it is in the public interest to do so. Since local authorities seem to have managed this aspect of their affairs quite well under LGOIMA since 1987, the Council can see no reason to support weakening the public’s rights in the way proposed by this bill.
  1. In addition to section 7(2)(c), LGOIMA also provides withholding grounds on the basis that disclosure would be likely to prejudice the maintenance of the law including the prevention, investigation, and detection of offences, or where disclosure would endanger the safety of any person. These grounds are not subject to a public interest override.5LGOIMA sections 6(a) and (b), echoing OIA sections 6(c) and (d). The Council suggests that the information the security agencies might provide to local authorities about foreign interference are highly likely to concern preventing offences from being committed, so if section 7(2)(c) does not cover the information, section 6 should – and vice versa.
  1. While section 7(2) withholding grounds are not absolute, if established they require the public interest in disclosure to outweigh that in maintaining the withholding ground. The public interest required to outweigh the continued provision of information to local authorities about foreign interference would have to be quite substantial indeed. This is even more likely to be the case if it is information that has been sourced from a foreign government and itself subject to secrecy agreements.
  1. What the government is asking us – and members of Parliament – to believe, is that the Ombudsman appointed by Parliament would be so reckless as to recommend the disclosure of such information when there is not a very strong public interest. Even were the Ombudsman to act in such an unlikely manner, section 32 of LGOIMA provides that the Ombudsman’s recommendation may be disregarded by a resolution of the whole council.
  1. Section 31 of LGOIMA goes further by enabling the Attorney-General to certify that the Ombudsman shall not recommend disclosure of information if the Attorney-General feels that doing so would be likely to prejudice the prevention, investigation or detection of offences.
  1. In other words, for the Committee to recommend that clause 11 remain part of this bill, they have to believe that local authorities would, after consulting the intelligence agencies, fail to claim the existing appropriate withholding ground. The Committee would also have to believe that in deciding on any complaints about refusal of a request, the Ombudsman (and possibly the courts) would fail to give appropriate weight to those interests. They also have to believe that the intelligence agencies would fail to advise the Attorney-General to intervene by issuing a certificate, and that the courts would, without good reason, reject his certificate.
  1. If this is the case Parliament might as well sack the Ombudsman, because it would be clearly signalling that it has no confidence in his judgement.

Recommendation 1
The Council recommends that clause 11 (‘Section 6 amended’) be deleted from the bill.

  1. If clause 11 is rejected, clause 12 is redundant, because there will be no need to amend section 31 to enable the Prime Minister to block the Ombudsman from recommending release of information on these topics.
  1. However, if the Committee decides to demonstrate its lack of confidence in the Ombudsman by retaining clause 11, it should still vote to remove clause 12.
  1. This is because enabling the Prime Minister to overrule the Ombudsman’s opinion following an investigation is inconsistent with the principle of independent arbitration of access to information disputes, and conflicts with the principle of separation of powers. The UK Supreme Court in 2015 ruled that an equivalent ministerial veto in the UK’s Freedom of Information Act 2000 was inconsistent with the rule of law, and that ministers could not veto a decision of the Information Tribunal simply because they disagreed with it.6R (on the application of Evans) and another (Respondents) v Attorney General (Appellant) [2015] UKSC21.
  1. Although the Ombudsman is not a Tribunal, they perform the same functions of enquiring into the facts of a case and exercise quasi-judicial powers when forming opinions on the disclosure or non-disclosure of information under the OIA and LGOIMA. Unless vetoed by an Order in Council (under the OIA, which has never happened to date), or by resolution of a local authority (which has happened very rarely), there is a public duty on the relevant organisation to comply with their recommendations.
  1. It is quite improper for the existing certificate powers in the OIA and LGOIMA to exist, and would be a further departure from international standards on the rule of law and access to information to extend the Prime Ministerial certificate power to LGOIMA.

Recommendation 2
The Council recommends that clause 12 (‘Section 31 replaced’) be deleted from the bill.

Alternative

  1. If the Committee disagrees with the recommendations above, but nevertheless does not want to give the un-evidenced assertions of spies such weight, there is an alternative way forward that should meet their concerns.
  1. The Committee should note that the Ministry of Justice has itself acknowledged that the OIA is “outdated and lacking in credibility”. A key area in which the OIA is outdated is section 6 of the law. This is because section 6 departs from international standards on access to information, since the agency that has received a request does not have to consider whether the public interest in disclosure outweighs that in withholding the information. As a consequence, the Ombudsman is barred from forming an opinion or making a recommendation that the information be disclosed in the public interest.
  1. In the UK, the withholding grounds for defence and for international relations are subject to an overriding public interest test, meaning that not only does the agency which receives the request have to consider this, the Information Commissioner, Tribunal and courts can all assess and rule on it.7Defence is covered by section 26, and international relations by section 27. Freedom of Information Act 2000, https://www.legislation.gov.uk/ukpga/2000/36/contents
  1. Therefore, rather than perpetuate the “outdated” approach of the OIA and insert provisions that are not subject to a public interest test, the Committee could amend clause 11 of the bill so that the withholding grounds are inserted into section 7(2) of LGOIMA rather than section 6.
  1. To address the agencies’ concerns about not being able to have ‘free and frank’ exchanges of information with local authorities, section 7(2)(f)(i) could be amended to include “or any employees of the intelligence agencies as defined in section 2(5)”. This would also present the opportunity to tidy up section 2(5) of the Act which was previously repealed but with the reference in section 7(2)(f)(i) left hanging.

Recommendation 3
The Council recommends that if the Committee decides to insert new withholding grounds into LGOIMA, clause 11 should be amended so that the new grounds are added to section 7(2) of LGOIMA, not section 6, so that they are subject to the public interest test.

  1. The Council thanks members of the Committee for their time and consideration of our submission.