The outgoing Ombudsman’s report reviewing OIA practices in the public sector is to be released this week. The Dominion-Post this morning has a scathing editorial about her tenure, and her approach to the Official Information Act. As it notes
Her retirement is welcome. We don’t expect much from her review.
The Ombudsman’s office is badly under-resourced, limiting the extent to which she can do her job properly, even if the inclination was there to do so. Funding choices are made by politicians, who should be – but clearly aren’t – embarrassed by the backlog of complaints and the way in which that backlog deters others from even bothering lodging complaints. But the cast of mind the current Ombudsman has brought to the job is something she has control over. Her approach seems not to be what the country needs from an Ombudsman – welcome as it might be to some state officials and ministers. Not long ago, Justice Collins highlighted the way that the Ombudsman appears to misunderstand, and misapply, the provisions and principles of the Official Information Act.
Over the last few months, I’ve highlighted various examples of the Reserve Bank’s abuse of the Official Information Act. Blanket refusals to release whole classes of documents, deliberate time-wasting, secrecy for the sake of secrecy all seem to have become par for the course.
But today I wanted to highlight a particularly egregious example of abuse from another agency, the Ministry of Business, Innovation and Employment (MBIE). I’ve only ever lodged one OIA request with MBIE, and apart from the unconscionably long time taken to deal with it, my impression was that they were playing straight. That certainly wasn’t the case in what follows.
My former colleague Ian Harrison is chair of a group called EBSS (Evidence-based Seismic Strengthening), which among other things has been scrutinising the government’s proposals for seismic strengthening standards.
When Nick Smith, the Minister of Building and Housing, announced his new seismic strengthening policy proposals on 10 May 2015 he said that it would save 330 lives over the next 100 years. This contrasted starkly with the estimate of 24 lives saved in MBIE’s cost benefit analysis that was prepared as part of the 2012 review of seismic strengthening policy.
To get to the bottom of the difference EBSS asked, under the Official Information Act, for the documents that explained how the number was calculated.
In May EBSS asked MBIE, under the OIA, for the documents that would explain how the Minister’s number was calculated. The request was initially refused because it would be a “contempt of the House of Representatives” (presumably because it had something to do with the Select Committee’s proceedings), and after three months only some partially relevant documents were provided. The key document was missing.
We only obtained the document with the analysis by asking the Minister for it under the OIA. His response shows that the analysis paper was received by his Office from MBIE. It is clear that MBIE did have the document, and we do not believe that MBIE forgot it existed, or misunderstood the request. They simply hid it.
So EBSS asked MBIE why the relevant document, a consultancy reported commissioned by MBIE from Martin Jenkins, had not been released to them in response to the earlier request.
We received a letter with the following response.
“As detailed in our response dated 2 October, this document was not released to you in our response of OIA 1614 of 12 August 2015 as the information was contained in an e-mail. On 17 July 2015 we wrote to you about the substantial collation your request involved, and proposed refining the scope to exclude e-mails. We received no response, so proceeded on the basis of the refined scope, supplying the substantive material, briefing and aide memoire, but refusing, on substantial collation grounds, the e-mail correspondence”
This explanation is absurd. MBIE knew exactly what we wanted, e-mails are documents, and it does not provide ‘substantial collation’ to provide a single e-mail trail with a document attached.
The offer to refine the scope of the request (two months after the OIA request was made) was an obvious trap. We did not know that the key document was attached to an e-mail, and were being induced to exclude e-mails from the request to address the ‘substantial collation’ issue. That would have put MBIE off the hook with respect to providing the document.
We did not fall for the trap. But no matter, MBIE took it upon themselves to ‘refine’ the scope of the request for us. There is no provision in the OIA for them to do so.
I’m not sure why EBSS didn’t respond to MBIE and simply decline to accept the narrowing. But agencies can’t just refine the scope of a request themselves. If they could, the Act would be totally undermined – any request would be only what the responding agency wanted it to be.
MBIE’s explanation was not a botched response from a junior staffer. The letter was signed by Derek Baxter, Acting General Manager, Building System Performance.
What MBIE has not explained was why the Martin Jenkins report on the number of deaths was only available in an e-mail to the Minister. MBIE directed the authors of the report on the methodology, and presumably managed the contract. Was MBIE so embarrassed by the document that they didn’t want a copy in their files? Or did they deliberately not keep a copy to defeat a possible OIA request?
This looks like pretty egregious behaviour from state officials, working under an Act explicitly designed
to increase progressively the availability of official information to the people of New Zealand in order
(i) to enable their more effective participation in the making and administration of laws and policies; and
ii) to promote the accountability of Ministers of the Crown and officials
What, if any, consequences are there for senior officials at MBIE who allowed this sort of abuse of the OIA to occur?
Of course, this is just one example. Ian notes the Ombudsman’s imminent review, and argues
We think she should consider the incentives on agencies to comply with spirit and letter of the law.
We think there should be criminal penalties for serious non-compliance with the OIA, which would apply to the chief executive. If there was a risk that a chief executive could be prosecuted for egregious breaches of the OIA, the incentive structure alters radically, and agency cultures would quickly change. This not an outlandish suggestion. The Securities Act provides for criminal penalties for directors and certain other company officers when untrue statements are made in prospectuses and other documents. This risk has a material impact on compliance with that act.
We think that the Securities Act comparison is apposite. Honest compliance with disclosure requirements is part of the fabric that makes markets work more efficiently. The OIA is part of New Zealand’s constitutional fabric and similarly needs to have criminal sanctions in reserve to work well.
It is an interesting suggestion. To make such a change would require a government with a serious commitment to advancing the cause of open government. But any such government would presumably already have
- issued written instructions to all government agencies restating the expectation of the Prime Minister that each of them will comply with the letter and spirit of the Official Information Act
- asked the State Services Commissioner to ensure that compliance with the letter and spirit of the OIA formed a material part of the annual performance assessment of department chief executives
- appointed as Ombudsman a person with a strongly independent cast of mind, who did not believe that the requester’s relationship with the relevant chief executive should influence what information they received.
- adequately funded the Ombudsman’s office to ensure that complaints are consistently dealt with expeditiously, to substantially the incentive to buy time by denying a request and forcing the requester to turn to the Ombudsman.
Criminal penalties would be largely irrelevant under such an administration. But, of course, most governance provisions are designed to cope with bad circumstances or bad/obstructive ministers and agencies. Personally, I’d rather that the political culture and conventions underpinned a strong culture of open government – including a stronger emphasis on pro-active release of papers and reports – rather than new criminal sanctions on department or agency chief executives. But sometimes laws are necessary. The Official Information Act itself was.
On another matter, Ian also has a new report out having a careful look at some aspects of the cost-benefit analysis of the Wellington airport runway extension. He concludes
Impact on cost benefit outcomes
All of the issues raised here go the same way and cumulatively would reduce the net present value to a number that is much lower then the $2,090 million mid-point. There is a material risk that there could be no net benefits.