In the High Court earlier this week,  Justice Collins –  the former Solicitor General  – handed down a significant judgement in an Official Information Act case.  The judgement itself is a fairly easy read, and Otago University law professor Andrew Geddis has a nice summary of the issues and implications here.

Professor Jane Kelsey, of Auckland University, had sought from the Minister of Trade, Tim Groser,  material associated with the TPP negotiations.  The Minister declined Professor Kelsey’s application, prompting her (and several NGOs) to seek a judicial review of the Minister’s decision (which had been upheld by the Ombudsman).

Professor Kelsey’s challenge was largely successful.  It is a decision that does not reflect well on Tim Groser, and perhaps reflects even less well on the Chief Ombudsman.   As Andrew Geddis put it

The third audience for this judgment is the Ombudsman’s office, and the Chief Ombudsman Beverley Wakem in particular. Because it is fair to say that she does not come out of the judgment all that well. Not only does Justice Collins find that she apparently misunderstands how a quite key legal test under the OIA is meant to apply (at para. [139]), but her failure to pick up MFAT/Tim Groser’s ignoring of proper process is quite concerning.

After all, the Ombudsman is meant to be the primary check on those who hold official information failing to abide by their legal obligations. If that office is not noticing those failures – if it is basically waving through decisions that fail to comply with the OIA – then what is a citizen to do? The Courts are always there in theory … but in the real world this is a completely unrealistic avenue of redress because of the time and expense involved.

The judge reminded people of the important place the Official Information Act has in New Zealand’s system of government.  He draws on the 1980 report of the Danks Committee, which laid the foundations for the Official Information Act, highlighting the principles of open government that are reflected in the wording of the Act.  Indeed, the judge describes the Act as “an important component of New Zealand’s constitutional matrix”.  It imposes significant obligations on ministers and public servants (and other government agencies) –  and these are obligations that must be complied with, not simply aspirations to be met when it is convenient to do so..

What was the problem with the way Tim Groser handled the request?  The main issue was the blanket refusal to release any of the material Kelsey sought, without (a)  considering each piece of information individually, and (b) considering whether parts of any of these documents could be released.  Again in Andrew Geddis’s words:

the major flaw in MFAT’s/Tim Groser’s process was their adoption of a blanket approach to deciding whether or not to release any information. Reverse engineering the judgment a bit, it looks like MFAT/Tim Groser took this approach to the issue:

• Jane Kelsey’s request was for lots and lots of material, which it would be a pain in the backside to have to go through;
• MFAT/Tim Groser knew that they would have valid grounds under the OIA to refuse to release anything “interesting” contained in that material;
• Anything left over after they redacted the “interesting” stuff would be useless for Jane Kelsey’s purposes;
• Therefore, rather than waste time and effort going through all the material to weed out the “interesting” stuff, they instead decided not to release anything at all.

The problem with this approach is that it runs completely counter to the OIA’s basic purpose – to make any and all information available unless one of the specific reasons in the legislation applies. For the information holder to decide that it won’t provide information without actually looking at it and considering if there is a valid statutory reason for refusing its release inverts the way the OIA is supposed to work.

The judge did not rule that any specific bits of information have to be released.  It was a ruling about the need to apply proper process.  Going through lots of documents can be costly and inconvenient, but again (a) that was choice Parliament made in 1982, and represents an obligation on public agencies, and (b) the Act allows for agencies to specify a “reasonable” charge  especially if meeting the request would involve substantial collation or reaearch, and requires the agency concerned to  “consider whether consulting with the person who made the request would assist that person to make the request in a form that would remove the reason for the refusal”.     Tim Groser did none of these things.

Why I am writing about this case here?    First, because open government is an important cause, and the more people who are aware of these issues ,and abuses, the better.

But second, because I have been on the receiving end of several of these sorts of blanket refusals from the Reserve Bank of New Zealand.

I have written about one of them already.  I’d requested copies of the work the Reserve Bank had done on governance issues, and was flatly refused.

I got from holiday the other day to find two more examples in my inbox.

On 24 September, I received this response to one request:        

On 27 August you made an Official Information request seeking:

 Copies of the minutes of all meetings of the Reserve Bank’s Governing Committee held in the first six months of 2015

The Reserve Bank is withholding information under the following provisions of the Official Information Act:

• Section 6(e)(iv) – to prevent damaging the economy of New Zealand by disclosing prematurely decisions to change or continue government economic or financial policies relating to the stability, control, and adjustment of prices of goods and services, rents, and other costs;
• Section 9(2)(d) – to avoid prejudice to the substantial economic interests of New Zealand; and
• Section 9(2)(g)(i) – to maintain the effective conduct of public affairs through the free and frank expression of opinions by or between officers and employees of any department or organisation in the course of their duty.

Section 6 of the Act provides conclusive reasons to withhold information. Section 9 of the Act requires the Bank to consider if the public interest in making the information available outweighs the public interest in withholding the information. The Reserve Bank recognises the tension between disclosure and confidentiality and has considered your request in light of that tension. Public disclosure, in summary form, is essentially what happens with monetary policy decisions in a carefully considered media release and the full text of the Monetary Policy statement. The process of deciding what to publish in these documents recognises and balances the tension between disclosure and confidentiality.

You have the right to seek a review of the Bank’s decision under section 28 of the Official Information Act.

And on 25 September I received this response to another request  

On 10 September you made an Official Information request seeking:

 Copies of all papers being provided to the Reserve Bank’s Board in respect of the September 2015 Monetary Policy Statement released this morning.

The Reserve Bank is withholding the information under the following provisions of the Official Information Act (the Act):

• Section 6(e)(iv) – to prevent damaging the economy of New Zealand by disclosing prematurely decisions to change or continue government economic or financial policies relating to the stability, control, and adjustment of prices of goods and services, rents, and other costs;
• Section 9(2)(d) – to avoid prejudice to the substantial economic interests of New Zealand; and
• Section 9(2)(g)(i) – to maintain the effective conduct of public affairs through the free and frank expression of opinions by or between officers and employees of any department or organisation in the course of their duty.

The Act explicitly recognises, in section 4(c), that there are times when releasing information is against the public interest and provides for such circumstances with different types of reasons to withhold information. Section 6 of the Act provides conclusive reasons to withhold information and section 9 provides reasons that must be balanced with the public interest in making the information available.

Public disclosure, in summary form, is essentially what happens with monetary policy decisions – in a carefully considered media release and the full text of the Monetary Policy statement. The process of deciding what to publish in these documents recognises and balances the tension between disclosure and confidentiality.

You have the right to seek a review of the Bank’s decision under section 28 of the Official Information Act.

Taking them in turn, the first request was for copies of the minutes of meetings of the Reserve Bank’s Governing Committee for the first six months of 2015.   The Governing Committee, readers may recall, is the internal committee comprising the Governor, his two deputies and his assistant governor, set up by Graeme Wheeler and advertised as the forum in which the Governor would make major decisions (all legal decision-making authority, of course, rests with the Governor).

The response is puzzling in a number of areas.  First, the Bank appears to assume that my only interest in the minutes was the OCR decisions.  As the judge noted, it is not up to agencies to make assumptions about the interests of applicants, and in this occasion I had given no reason to suggest that OCR decisions were my primary interest.  In fact, my interest was is process and governance, and illustrating the lack of transparency and effective accountability around Reserve Bank decision-making, whether on monetary policy or other (policy or corporate) matters.  Indeed, I had heard, but was keen to verify, that minutes of this new forum consisted of little or no more than a single sentence record of the decision made.

There may well be material in the Governing Committee minutes that could be reasonably withheld under the Act, but the Bank has not made its case, or shown any sign that it has considered the contents of each of the individual sets of minutes.  It is almost inconceivable that there is nothing in any of those minutes  that could not safely be released (even if only the dates, attendees, and subject matter).  Justice Collins appears to have ruled that blanket refusals of this sort are not permissible.  I intend to pursue this matter with the Ombudsman, and may also request from the Bank copies any papers or emails that deal with their handling of my request.

The second request was for papers provided to the Reserve Bank Board in respect of the September Monetary Policy Statement.  Once the MPS has been released, the Board typically receives all the “forecast week” papers, and (anonymised) copies of the individual pieces of advice/recommendations provided to the Governor (Governing Committee) on what to do with the OCR.

Again, the Bank appears to have made no effort to look at each of the individual papers to determine whether all of each and every one of them should be withheld under the OIA.    Blanket refusals are simply not acceptable, according to Justice Collins’ judgement.

In (a rather slow and reluctant) response to a previous request of mine, the Reserve Bank has released all the forecast week papers for the March 2005 Monetary Policy Statement round. The character of the papers is no different now than it was then, and who can take seriously a claim that to release today’s equivalent of this paper (on business investment) would damage the New Zealand economy, prejudice the substantial economic interests of New Zealand, or impair the effective conduct of public affairs?    Clearly the main issue now is one of timing –  papers from 10 years ago don’t bother them, but papers from a few weeks ago do –  but they still need to make the case, paper by paper, and explain the reasons for their decisions.  I deliberately did not ask until the MPS itself had been released.  And I deliberately asked for the papers that went to the Board, not those that went to the Governor, because I knew that the OCR advice was anonymised before it went to the Board.   But senior staff should be able to provide advice to the Governor, in a professional manner, even if that advice is subsequently disclosed.  It is now not uncommon overseas for the views of individual Monetary Policy Committee members to be made public, with a relatively short lag.

In its reply, the Bank falls back on a common Bank line: background papers don’t need to be disclosed because

Public disclosure, in summary form, is essentially what happens with monetary policy decisions – in a carefully considered media release and the full text of the Monetary Policy statement. The process of deciding what to publish in these documents recognises and balances the tension between disclosure and confidentiality.

But this is simply unconvincing.  The point of the law is not to allow government agencies to release only what it suits them to convey to the public.    If that were so, for example, there would be no release of background Budget papers –  because the final Budget documents and “carefully considered” press releases would do the job.    Background papers are official information, and the presumption in the Act is in favour of release.

To be clear, I would expect that even if the Bank had taken an approach more consistent with the letter and spirit of the Act that there would have been a limited amount of material withheld from a few of the papers (eg those around judgements that might influence exchange rate intervention during the subsequent few weeks).   But each exclusion needs to be explicitly justified under a specific provision of the Act, not with a blanket refusal and a condescending stance of “we know what is the best balance between disclosure and confidentiality”.

Many of the specific issues in this request would be dealt with permanently if the Bank would pro-actively determine a suitable release policy for background MPS papers.  We now know that they are happy enough to release 10 year old papers, but not those a few weeks old.  I used to argue internally that, say, a six or twelve month lag would be a huge step forward, and involve no material risks for the Bank.

As I have been highlighting for months, despite its claims to the contrary, our Reserve Bank is not a very transparent organisation.  That is true of management and of the Board.  It is true of monetary policy, banking regulation policy, and corporate and budgetary matters.      Reasonable people might differ as to how open the Bank should be in each of these areas –  although it has never been clear what they have to hide, as distinct from an institutional cast of mind that says ‘we’ll tell you what we think you should know, when we think you should know it”.  But breaches of the law are a much more serious matter.  It increasingly looks as though the Reserve Bank –  like, no doubt, other government agencies – plays rather fast and loose with the provisions of the Official Information Act.  That should concern voters, and more immediately it should concern those charged with holding the Bank to account –  the Board, the Minister of Finance, the Treasury, and Parliament’s Finance and Expenditure Committee.