Yesterday, the Council wrote to the Ombudsman, Peter Boshier, to complain about the decision made in his name to close our complaint against the former Minister for Covid-19 Response without even commencing a formal investigation in the 30 weeks the complaint was with his office.

The Ombudsman has replied to the Council, apologising for the management of our complaint, re-opening the matter, and undertaking to conduct an investigation.

The text of the Ombudsman’s reply is below.

The Council welcomes the Ombudsman’s swift apology, and also looks forward to action by his office to address the other remedies we sought from him. This is to:

• publish guidance on transfer of Ministers’ legal obligations to deal with (a) OIA requests and (b) investigations conducted by his office following a reshuffle of ministerial portfolios during the same Parliament; and

• publish information about how the Ombudsman (a) prioritises and triages complaints upon receiving them, (b) what are the expected performance timeframes applying to each stage of an investigation for each of the different priorities assigned to complaints, (c) the detailed factors and criteria for use by the Ombudsman and investigators when exercising the discretionary powers under section 17(1)(f) of the Ombudsmen Act in relation to OIA complaints.

The guidance published by the Ombudsman on other aspects of the Official Information Act has proven to be useful on many occasions, and we think the first item sought above would aid other requesters, departments and Ministers. The discussion on social media following publication of our concerns certainly suggests this would be the case.

The information sought in the second bullet point is information that can reasonably be expected of any modern regulator adhering to good regulatory practice. Indeed, the Ombudsman’s own guidance on ‘Good decision making’ indicates that internal policies and guidelines should “set out the relevant considerations to be taken into account by the decision maker” and “be made available to members of the public”.

The Ombudsman’s guidance on ‘Proactive Release’ says that agencies should consider publishing ‘Policies, procedures, manuals and guidelines used by the agency’, and ‘Information about statutory decision making processes’ as well as ‘Information about regulatory or review activities’.

The Council notes the publication of some information like this by the UK Information Commissioner (Regulatory Action Policy), the Scottish Information Commissioner (Enforcement Policy), the Australian Information Commissioner (Freedom of Information Regulatory Action Policy), the New Zealand Privacy Commissioner (OPC policies), and the UK’s Parliamentary and Health Service Ombudsman (‘Our policies and procedures‘).

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23 June 2022

 

Mr Thomas Beagle
By email: thomas@nzccl.org.nz

 

Tēnā koe Mr Beagle

Your complaint against the Minister for COVID-19 response

Thank you for alerting me to your concerns about how your Official Information Act complaint has been handled by my office.

I have carefully reviewed all the correspondence and I wish to sincerely apologise for the way your complaint has been managed to date.

The response by my office has fallen short of my expectations and I have asked for your case to be immediately reopened and progressed without delay.

Following a Cabinet reshuffle, I expect my staff to continue to consider the circumstances as they were at the time of the request, consult the new Minister where appropriate, and consider that response when advising me on next steps. Where information has been released subsequent to a request, as it appears it was in your case, the inquiries of the new Minister might include whether there is further information within the scope of the request that has not been released. However, the material issue remains whether the former Minister’s decision on the request was lawful at the time it was made.

In reality, the closure of complaints due to a ministerial portfolio reshuffle should be rare and, as you say, must align with section 17 of the Ombudsmen Act 1975. I want to assure you that I continue to investigate the vast majority of complaints against ministers received prior to a Cabinet reshuffle.

In your case, your complaint was closed in error. I have asked my senior staff to review this decision to make sure this does not happen again. I have also asked them to look at a very small number of other closed complaints of this nature to make sure no other errors have occurred.

Thank you again for bringing this matter to my attention. I will put this right.

Yours sincerely

 

Peter Boshier
Chief Ombudsman