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.
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.