Charging for official information

Debate over the Reserve Bank’s new charging policy has continued.  Under a heading “The perils of user-pays democracy” Bryce Edwards had a nice summary of the articles and commentaries that had appeared by late last week.  And since then the flow has continued –  including a Rob Hosking piece in NBR, a Dominion-Post article about, and interview with, the new Chief Ombudsman, and an op-ed this morning from Bronwyn Howell at Victoria University, run alongside the hard-copy version of Geoff Bascand’s defence (that first appeared last week).

If the Reserve Bank is monitoring the reaction and debate, which I’m sure it is, it can only conclude that it is losing in the court of public opinion.    It isn’t just about journalists, bloggers, academics etc, but in the comments sections to the various articles the balance of opinion seems to tilt quite clearly away from the Reserve Bank’s stance.

Losing in the court of public opinion should concern the Governor –  and those charged with holding him to account (the Board, the Minister, Parliament’s Finance and Expenditure Committee).  Democracy rests on the consent of the governed, and although formal laws play a vitally important part in expressing that consent, and securing compliance, it is buttressed by a sense that the decisions of the powerful (elected or otherwise) are fair and consistent with the values of the society.  I don’t get the sense that many people who have thought about the issue at all think that blanket charging, for any OIA requests that are at all complex or awkward, is consistent with the way in which this country should be run.  All the more so perhaps when the agency concerned wields so much power – the Governor has more discretionary policy freedom than even most elected officials –  with so little effective formal accountability.

It is, however, somewhat troubling that in his interview the other day with the Dominion-Post the new chief ombudsman, Peter Boshier, declares that the Reserve Bank’s policy is just fine:

“I think the Reserve Bank’s response is actually very fair.  When I looked at it I couldn’t fault it.  As a statement of principle it was perfectly fair and it’s one to which I subscribe”

I was surprised that the new Ombudsman was so upfront in his defence of officials, but it is consistent with the point I made last week, that the charging provisions of the Official Information Act itself are quite permissive, putting few constraints on agencies (other than that any charge be “reasonable”).  The government’s charging guidelines are considerably less permissive (and the Reserve Bank’s policy is not consistent with those guidelines), but those are guidelines to government agencies, not the law that the Ombudsman is required to interpret.

As a commenter on my earlier post has pointed out, in the end the only final and binding ruling on how the relevant provisions of the Act should be interpreted would be those of the courts, should anyone seek a judicial remedy.  I’m not aware that there has ever been a case on the charging provisions.   Last year, the courts heard Jane Kelsey’s case, but in largely upholding her argument that the Minister of Trade, and the then Ombudsman, had misapplied the law, by blanket refusals to release information, but the judge in that case did point to the option the Minister had had to charge for collation/ scrutiny etc of the information.  Perhaps at some point a court might rule that a fairly extensive charging policy, like that adopted by the Reserve Bank, was impermissible under the Act – ie unreasonable, because the effect was inconsistent with the whole purpose of the Act, to make official information more readily available.  But frankly, I’m old-fashioned enough to hope that no court would do so: Parliament put the charging provisions in the Act, and Parliament should refine or remove it, not (in Professor James Allan’s words), a committee of ex-lawyers.

Bronwyn Howell’s article this morning is a curiously “on the one hand, on the other hand” academic economist’s piece.

Inevitably, there are trade-offs to be made between the costs of acquiring information and the costs and incentives of concealing it.  There are economic arguments both for and against explicit fees.

The only certainty is that when it comes to the costs of Official Information, democracy itself doesn’t come cheap.

Yes, of course there are potential trade-offs, but they aren’t typically very large ones.  And, yes, open government and democracy carry some direct costs (even elections cost), but not typically very large ones –  and the costs of a not-very-open government (harder to put a dollar price on perhaps) are considerably greater.  And if the potential dollar costs are upfront, the benefits often flow over the longer-term.  Open and transparent government helps provide citizens with the confidence to allow governments, and government agencies, to act –  knowing that we can later scrutinize the choices made, and the evidence and arguments used in support of those choices.  When people don’t trust governments, they eventually take away the powers, and the flexibility those agencies have –  and sometimes need.

What of the Reserve Bank?  In his op-ed last week, the Deputy Governor argues that the Bank will only be charging for requests that are “large, complex or frequent”, suggesting that ordinary people have nothing to worry about.  But the case he cites –  a Fairfax’s reporter’s series of requests – involved 8.5 hours of time.  I’ve been asked to pay for a couple of requests that they estimate would, they estimate, have involved a similar amount of time.  But any serious request for information on policy matters is typically going to take, at least, several hours of work by officials, and that is partly because it is difficult to be sure where the information a requester is looking for might be found (ie which specific document), and agencies are not inclined to assist requesters.  In practice,  the requests the Deputy Governor appears happy not to charge for seem to be mostly the ones that involve no threat or risk to the Bank (in other words, no serious scrutiny).  It is way of fending off serious questions or investigations by the media and commentators.

Here are some of my experiences with the Bank and OIA charges.  The first two date from before the current policy was adopted in November/December last year.

oia

If it were an agency committed to open government, it would have been very easy, with no direct cost to the Bank at all, to have simply responded to the initial request with a general authorization to use any of the older papers, and perhaps asking for a discussion about refining the request for the more recent ones.  But that isn’t the Reserve Bank’s way.

A bit later I asked for background papers to the 2012 Policy Targets Agreement.  The PTA is the key document governing the conduct of monetary policy, and no background papers to it were released at all when the Governor and the Minister of Finance agreed the PTA in 2012.  I was threatened with a large bill, and invited to refine the request.  A Bank official prompted me to narrow my request to a particular file which, when the Bank eventually finally responded to the revised request, proved to have almost nothing in it that shed any light on the background to the Policy Targets Agreement.

What of the more recent episodes?

I asked for copies of some old Board minutes.  Those papers are well filed, and nicely bound at the Bank.  The Bank knows there is nothing problematic in them as a year or so ago, I had made a request for a slightly more recent set of minutes, and was quickly told I could copy them myself.  And yet they wanted to charge hundreds of dollars for these readily accessible uncontroversial historical papers.

I also asked the Bank for papers relevant to the post-TPP Joint Macroeconomic Declaration to which the Reserve Bank has become a party.  I’ve been told that meeting that request is also likely to cost hundreds of dollars.  It isn’t a large or complex request either: the Bank tells me that they have identified seven papers and 26 pages of emails; if anything, I was a little surprised at how little material they had.

With a track record like this, it is not surprising that people are uncomfortable with the Reserve Bank’s new policy.  It seems designed to obstruct, not to inform, and particularly to obstruct any awkward questions about the activities of a very powerful agency.   I’m not sure what specific topics Richard Meadows’ requests were about, but it seems unlikely that they were very large or complex either.

In passing, I would note that one of the aspects of the Reserve Bank’s involvement in the post-TPP Joint Declaration that I was curious about was the additional costs they were committing to (with no new funding), and what they were proposing to displace to cover these costs.   The agreement committed the agencies involved to (at least) annual macroeconomic consultations between the parties to the agreement, which will involve additional travel costs, and additional analytical work in preparation for such meetings.   An additional business class airfare to Washington alone appears to be another $7000 or so, with additional costs (and lost other productive opportunities for a senior official) as well.    It would be surprising if the involvement in the Joint Declaration did not cost the Bank at least another $15000 a year.  And it would be surprising if all their OIA requests, trivial and substantive, cost much more than that.  Recall, that the Joint Declaration was developed only at the insistence of the US Congress (and even then the Federal Reserve refused to be party to it).  I’m not necessarily suggesting there is anything inappropriate about our Reserve Bank and Treasury being party to the declaration, although it does carry some risks.   But we should be able to see how the Bank has thought about those risks (and the additional costs).

In concluding, here is a link to the more radically open approach adopted in Norway.    The Reserve Bank should be reconsidering its policy on charging for information, but the more general issue really requires some political leadership from some party or another that believes seriously in open government, even recognizing that genuinely open government will sometimes be uncomfortable for the powerful.  Indeed, that discomfort is more or less the point.

 

 

 

 

 

8 thoughts on “Charging for official information

  1. try getting the bulk of the population more interested in open government and the official information act instead of jk’s cheesy grin, off hand wisecracks and a wee tax cut every election.
    you will be pushing it up hill with a fork and it will be runny.
    that is the problem. we need people to vote on the important issues and access to information is one of them.

    Liked by 1 person

  2. Pretty much all the commentary I have read so far misses the most fundamental point of all about the OIA: the legislation does not exist to make public information available to the public, it exists to handle the cases where public entities don’t make it available.

    When I was struggling, in my local government days, to get my head around our obligations under LGOIMA I only really got it when I also read the guidelines and commentaries published by the Office of the Ombudsman. The lightbulb went on when I realised that OIA/LGOIMA starts with the presumption that public information is already public and is already freely available to the public of New Zealand. The provisions of the Act largely deal with the situations where a public entity doesn’t want to make information available or mustn’t. Some refusals are legitimate and those cases are spelled out explicitly.

    Once you look at it that way some of the questions posed by the commentators Dr Edwards quotes are answered really easily. As I said in my comment to your previous post on this topic making public information available is part of the constitution of the public sector. If you are a public entity it’s what you do. There is no need to appeal to democratic duty or anything else. Provision of public information is a normal overhead (no different to finance, IT, HR etc). I especially don’t understand why anyone would think that the fortune we pay to communications staff to massage and craft the release of public information that shows the organisation in a good light is in any way different from paying someone to hand over the same public information when it isn’t so flattering.

    Liked by 1 person

    • I like the comparison/contrast in your final sentence….

      When I joined the RB I don’t think it had any dedicated communications staff – rather different from the position today. In fairness, the Bank is a little (but substantively only a little) more open now than it was then,

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      • When I thought about it further I concluded that handing over public information has the historic precedence over PR. Sometime in the early 2000’s the Auditor General released a very earnest paper on whether spending on comms was a legitimate use of public money. As you note the rise and rise of public sector PR is comparatively recent whereas the public information obligations go back at least to 1982.

        Looked at that way every public organisation has an obligation to justify the relative spend on public information provision and public communication.

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  3. Michael, we the people paid your salary to write your opinion pieces, and therefore, IMHO, we the people have the inalienable right to access ALL of those opinion pieces on the Internet, free from any obfuscation and/or obstruction by ANY officer of the RBNZ, or ANY other government official or ANY politician.

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  4. Very interesting commentary on OIA charging. By way of disclosure, I have made many information requests of government agencies over the past decade and had cause to complain to the Ombudsman about some including one long running complaint about an agency charging for providing a particular set of information.

    A belated set of points on the OIA charging:

    1) IMO, the OIA is actually a pretty well written piece of legislation that works well for most requests to most agencies. In some areas it’s definitions and principles are very cleverly balanced such as its focus on “information held” (i.e. you cannot ask an agency to create information under the OIA but if it has the information, even in a staffers meeting notes or head, it can be requested).

    2) Donald Ellis is right in that the OIA fundamentally changed things from the previous Official Secrets Act by legally stating that all information held by government agencies is to be available public on request unless there is a “good reason” to withhold it. The obligation is for an agency to justify withholding information, not on the requester to justify why they should have it.

    However, over time the natural tedency for government organisations to refine their processes to “improve their ability to manage” the information it controls has changed the effectiveness of the act. The OIA is not working so well now because government agencies better understand their practical (even if not always legal) ability to withhold information they find embarrassing and RBNZ OIA policy changes probably fall into this category.

    3) A key major issue with the OIA for any request that has a significant charge claimed (or is refused) is the huge delay in the Ombudsman processing OIA complaints. The time for a complaint is usually months and sometimes years. A bit like the courts, a limitation (and benefit) of the OIA is that each request must be treated independently on its merits. This means the only practical recourse to a decision by an agency to charge to provide information is by way of requester complaint to the Ombudsman. As a complaint on contentious information could easily take a year to process, many requesters simply give up at this point (I had one complaint that ttook so long that even though the Ombudsman decided the information was improperly withheld, I still couldn’t get the information because the agency had new grounds for withholding it !).

    4) You should note that the Law Commission (LC) did review the OIA a few years ago (http://www.lawcom.govt.nz/our-projects/official-information-act-1982-and-local-government-official-information-act-1987). Their initial and final reports have extensive discussions on OIA charging including interpretations of what the OIA act says, report submitter views (both requesters & agencies) on charging and recommended improvements. For example, the final LC report “The public’s right to know: review of the official information legislation” (November 2010) notes:

    “The role of charging in the official information process has never been a full cost-recovery exercise. Where charges are applied they represent a partial recovery of some aspects of agency time and other costs incurred in responding to requests. The objective of the legislation to increase the availability of official information, the broad agency discretion to waive or reduce charges, and the limits on which activities may attract a charge means that, rather than being a primarily a cost recovery mechanism, charging largely operates as a defence mechanism for agencies in relation to outlier requests that consume a great deal of agency time and resource.”

    The 2010 LC OIA Report section 10 on charging under the OIA recommended:

    “A review of charging policy based on the objectives listed at [10.202] should be undertaken in order to establish a charging framework that is cohesive, consistent and principled. The review should include charging policy under the official information legislation, the Declaration on Open and Transparent Government, the New Zealand Data and Information Management Principles and the New Zealand Government Open Access and Licensing framework, and any other relevant government information policy.”

    5) In relation to the discussion to on OIA charging, is critical to note that an agency can only charge for certain types of activities. As noted in para 10.170 of the final Law Commission OIA Report:

    “Currently, the [Ombudsman] guidelines specify certain kinds of activity where charges may apply (based on a maximum hourly rate), and exclude other activities. Time spent searching for relevant information is included, except where the information is held in the wrong place. But time-consuming and complicated aspects of the process such as consultation, deliberations over withholding grounds and legal advice are excluded.”

    It needs to be noted that any work to review if any information should be withheld and any work to consult about releasing the information (internally and externally) is NOT chargeable under Ombudsman Guidelines.

    6) Finally, a practical piece of advice for anyone who is asked to pay a charge to support an agency providing information that has helped me occasionally. After receiving a response that includes a claim for a charge, you can, of course, ask for a copy of:
    * the analysis/estimate of work effort calculations
    * a list of the information already identified as possibly being within the scope of the request and
    * the internal correspondence associated with agency deciding an OIA charge should be applied to the request
    … all this information about your request would expect to already be “held” by the agency and so is available to you by way of OIA request 😉

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