The Council's submission to the Law Commission's review of the Official Information Act.

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1. Aims and Purposes

The New Zealand Council for Civil Liberties is a keen supporter of democracy and the rule of law. We believe that openness and transparency is a cornerstone of any democratic society – how can we meaningfully elect governments if we cannot find out what they are doing?

The Official Information Act has been an important enabler of this openness in New Zealand. It allows any interested person to request information from the Government as a matter of right, and thus allows the people to properly provide oversight.

We use the Official Information Act frequently in our work and, while we appreciate it, we still find that many government agencies do a poor job of honouring their commitments under it. Sometimes they are slow, or deliberately obtuse in their answers, or seem to be trying to find any possible excuse to withhold information.

We welcome this review and hope that the Official Information Act, and the corresponding culture of openness, will be expanded and strengthened.

1.1 Guiding Principles

Our submission is based on the following points:

• The OIA should be extended and strengthened, not shrunk or weakened.
• We’d rather see the government err on the side of openness.
• Official information should be easier to get at and the procedures around obtaining it should be accessible to everyone.

Finally, we note that we cannot think of any cases where undue harm has been caused by a government agency releasing too much information under the OIA, whereas there are many cases where harm has been caused by information not being released.

1.2 Commercial Sensitivity, SOEs and Trade Secrets

The OIA currently allows information to be withheld due to “commercial sensitivity”.

In our experience, this provision is used very widely by government departments to refuse to answer any questions about contracts they may have signed or other commercial dealings. Typically there appears to be very little consideration of the “public interest in disclosure”.

We accept that these grounds make sense when used to protect trade secrets or third party information, particularly when this information is only known to the government because of the government’s power to demand it (e.g. Statistics NZ).

We also accept that information that would upset a normal tendering or bidding process should be able to be withheld – but only until the process is complete and a decision is made.

We do not accept the idea that the Crown should have carte blanche to carry out all of its commercial negotiations or run commercial operations in private.

We acknowledge that some of our recommendations in this section might be seen to be quite radical and that they would require a new understanding of how government conducts commercial business. However, we believe that these changes are important to ensure that people can properly provide oversight over the actions of their government.

Government Outsourcing

As the Issues Paper notes, the interactions between Government and commercial businesses have expanded since the OIA was originally passed into law. In particular, many government functions are outsourced to commercial providers.

However, the contracting out of the delivery of these services does not change their fundamental nature. They are still government services and therefore people have a right to know about how they are being carried out and what they cost.

We believe that information about government services outsourced to a third-party should be treated as official information and therefore should be available under the OIA. This would also require the establishment of guidelines about how deep into the contracting business the enquiries could extend (i.e. contracted response times should be available, while the CEO’s salary might not be).

Government Businesses

The government runs a number of commercial enterprises. We have no objections to this but believe that, just as they experience benefits from being government run, they must also put up with ‘annoyances’ such as being subject to the Official Information Act.

Some may comment that this enforced openness might limit the ability of government enterprises to profit from their commercial activities. We think that this is an acceptable price of open government.

Public Money and Public Information

In the same way that people have a right to know what their government is doing, they also have a right to know what, why and how their government is spending.

The current tendency seems to be for government departments to agree to confidentiality clauses in contracts and then use those clauses to refuse to release information under the OIA. We believe that this is wrong and that this information should be made available to those who ask.

We do not accept that companies have a right to have their government contracts, including pricing, kept secret from the people. To those people who say that companies may refuse to deal with the government if they know that the terms may be exposed, we say that there will be plenty of others who will be happy to bid for part of the ~35% share of GDP that the government is responsible for spending.

As an aside, we note the claims that government departments may wish to keep contracts secret in order to ensure they receive better pricing. From our knowledge of commercial dealings with government we suspect that “special rates” tend to favour the supplier rather than the government, and openness is more likely to see the government receive better pricing.

Recommendations

1. That people should be allowed to see any commercial contract that the government signs unless there are other reasons for it to be withheld.
2. Government commercial enterprises should not be able to claim “commercial sensitivity” to withhold information to protect their business or profits.
3. That outsourced government services should be subject to the OIA.

1.3 Requests – Some Problems

Chapter 9 of the Issues Paper concerns some problems around requests, with a discussion of requests that are hard to answer because they are too large, too general, or done “in bad faith”.

While we understand that agencies sometimes have problems answering large requests, we note that they could make it easier for themselves by being more proactive about publishing information. We discuss this point further in the section about proactive disclosure. Furthermore, with no available lists of what documents agencies might have on a particular topic, requesters are obliged to use a scattershot approach to try and access the information they need.

We would be concerned that any attempts to limit the ability of requesters to access information will inevitably lead to blocks on legitimate users, particularly those who might embarrass the government. However, from our own experience we do realise how difficult it can be to deal with people who have a “bee in their bonnet” about a particular topic.

We believe that any moves to create a category of “vexatious questioners” should be done very carefully to avoid blocking reasonable users. For example, the Issues Paper gives the example of people repeatedly making requests for the same information. While we understand this could be annoying, any provisions around this should be careful to exclude those who are asking for updated information (e.g. monthly statistics) each time.

We strongly oppose the idea that requesters should be obliged to give the purpose to which they intend to put the information, although we support the right of the agency to ask as part of the process of deciding how best to answer the request. Giving agencies the power to decide whether a purpose is worthy or not is something that they are not well placed to do.

Recommendations

1. We support agencies following up with requestors to better determine what information is required, but do not see that this would require any changes in the Act (Q36). The agency in question is best able to determine whether it believes that this would be helpful in reducing the work required.
2. We support that the Act should be amended to add “bad faith” to the description of a vexation request (Q42).
3. We see no need for an agency to be able to decline to deliver information that has been requested before, the incremental work to send a second copy is minimal. If such a provision were to be included it is important that it allows requesters to continue to ask for updated information (Q43).
4. We see no need for the ability to declare that a person is a “vexatious requester”. As the Issues Paper points out, designing such a system is not trivial, and agencies can already refuse to answer vexatious requests it they prove unduly burdensome (Q44).
5. We recommend that there be no requirement for requesters to give the purpose for which they want the requested information (Q45).

1.4 Proactive Publishing and Open Data

Chapter 12 of the Issues Paper is about proactive disclosure of information, both in terms of whether certain categories of information should always be released on request, as well as agencies publishing data before it is requested.

One of the major problems we have with the OIA as it is currently implemented, is that it can be very hard to request information or documents if one does not know that it exists. The current published lists of information are of little assistance.

Proactive disclosure would help solve this problem of hidden information. It would also significantly reduce the workload on the agencies responding to OIA requests. Furthermore, we believe that proactive publishing of information is the obvious next step in the evolution of the OIA and open government.

However, we understand that this would require a major shift in attitude on the part of the people working in government agencies. On the other hand, the original OIA also required a major shift in attitude and we believe that this worked out for the best.

Recommendations

1. The Ombudsmen should maintain a list of categories of documents that should, unless there is a good reason not to, be published proactively (probably on the agency’s website). This list should be reviewed regularly with a view to expanding it whenever possible. (Q85)
2. We suggest that as a compromise that where there is any doubt about the publishability of a particular document, that the existence of the document is listed instead. This will allow interested people to request it at which point a proper assessment or editing can be done.

1.5 Public Interest Test

Chapter 8 of the Issues Paper concerns the application of the “public interest” test when deciding whether information should be released.

It is our experience that this test is generally ignored by agencies when they decide to decline to release information. The attitude appears to be that once a grounds for refusal is identified, there is no need to go any further. This means that agencies refuse to release information even though they are obliged to, which significantly weakens the purpose of the Act.

As this is a product of public service culture, this will be difficult to change. The suggestion that agencies refusing to release material under section 9 should have to state that the public interest has been considered will at least ensure that this point is brought to the attention of the person preparing the response. We can but hope that this will have some effect.

Recommendation

1. We agree that all refusals under section 9 should have to specifically state that the public interest has been considered (Q34).
2. Furthermore, where the public interest has been considered and the refusal is confirmed, the organisation is to provide a specific explanation as to why the reasons for refusal outweigh the public interest (Q34).
3. However, we also believe that this will not go far enough and suggest that a more effective solution will need to be found. We have no specific recommendations on what this solution might look like.

2. Administrative Aspects

2.1 List of Agencies Covered

The Issues Paper discusses (2.3 – 2.5) difficulties in determining which agencies are covered by the Act, and recommends that the Acts should explicitly list all of the agencies covered by them.

We see a problem with this approach, namely that there is no explanation of how new agencies would be added to the list. We are also concerned that inadvertently missing an agency could lead to problems.

Recommendation

1. We recommend that the Acts should list as many agencies as possible, but that this list should not be seen as definitive. The Acts should also list the classes of agencies covered to ensure that none escape.

2.2 Making OIA Requests Easier

The Issues Paper includes a discussion of how to make using the OIA easier for requesters and responders. We believe that it would be useful for everyone (requesters, responders and the Ombudsmen) if there were better resources about the use of the OIA.

Recommendation

1. We support the proposals in the Issues Paper that the Ombudsmen should create and publish case notes, that the case notes should be used as precedents when appropriate. (Q10, Q11, Q12, Q13).
2. We support the proposals in the Issues Paper for further guidance to be developed to assist both requesters and responders to make effective use of the Official Information Act. We further support the idea that this guidance should be provided by the Ombudsman. (Q47)

2.3 Better Resourcing for the Ombudsman

While not strictly a topic for the review, we note the key role that the Office of the Ombudsmen plays in the current system, a role which seems destined to grow if the recommendations in the Issues Paper are taken up.

However, we also note that the Office of the Ombudsmen already seems somewhat overloaded with responses to queries being slow and decisions often taking many months. This can be a major problem, especially when the requested information concerns a current issue.

It would seem pointless to add even more duties to the Office of the Ombudsmen without addressing the issue of ensuring that it is given the resources to be able to do its job. If it cannot, this will act as a brake on the usefulness of the Official Information Act as government agencies will be able to refuse to give out information in a timely manner, safe in the knowledge that the issue will be irrelevant by the time any decision is made.

Recommendation

1. That the Law Commission’s review addresses the issue of giving the Office of the Ombudsmen the resources it requires to do the required work.