The new Chief Ombudsman, Peter Boshier, had some encouraging comments in his interview about the Official Information Act with TV3’s The Nation that was broadcast over the weekend (transcript here).

In some cases, they involved walking back some earlier surprising comments.  In an interview with Fairfax only a couple of months ago Boshier said that, despite the huge backlog of complaints and very long delays

Turning to parliament for more resources and money wasn’t tenable, he said,

But now he tells us that he has a request before Parliament for more budget resources

That request should fall on receptive ears.  In their recent financial review of the Office of the Ombudsman, Parliament’s Government Administration Committee noted that, despite the efforts of the previous Chief Ombudsman to improve efficiency

Nevertheless, we believe the Office is under-resourced and over-worked, and would benefit from additional resources.

Boshier talks in a way which suggests a commitment to making the Official Information Act work in a way that respects, and gives tangible form to,  the stated purpose of the Act

The purposes of this Act are, consistently with the principle of the Executive Government’s responsibility to Parliament,—

(a) 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,—

and thereby to enhance respect for the law and to promote the good government of New Zealand:

The blogger No Right Turn, prompted by the Reserve Bank’s OIA charging policy, lodged requests with all government departments, and the Reserve Bank, about how many requests they had had in the last year, and how many they’d charged for.  His results are reported here –  unsurprisingly, charging is very unusual.

This chart takes his data on the total number of OIA requests each department received in the previous year (mostly the answers are for the financial year 2014/15). There don’t appear to have been responses yet from Environment and Corrections.

Every agency has different responsibilities, some are much larger than others (and one has to be a little wary of how things are classified, eg there is a note on the IRD response saying that their numbers include only requests handled at National Office (ones from media, MPs, and those of a sensitive nature)), but the Reserve Bank does not stand out among government departments as overburdened by requests.  The Ministry for Women, for example, or the Ministry for Pacific Peoples –  both with fewer requests – are tiny departments with little or no independent power or responsibilities.  The Treasury, it turns out, had five times as many requests as the Reserve Bank in this particular year.

By contrast to MfW or MfPP, the Reserve Bank independently sets monetary policy (with a huge short-term impact on the economy and the sectoral distribution of incomes), it regulates banks, non-bank deposit takers, and insurance companies (and now directly impinges on housing mortgage borrowers), it is a major payments system operator, it takes large financial risks in international markets, and it issues our notes and coins.  In some ways, against the backdrop of this data, it is a little surprising that such a powerful independent agency has not received more requests over the years.

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.

Just before Christmas, I drew attention to the Reserve Bank’s new policy of charging for Official Information Act requests.  At the time, this paragraph appeared on the Bank’s website.

The Reserve Bank has a policy of charging for information provided in response to Official Information requests when the chargeable time taken to provide the information exceeds one hour, and charging for copying when the volume exceeds 20 pages. Our charges are $38 per half hour of time and 20c per page for copying (GST inclusive).

That text has now been removed and they appear to have provided some rather more extensive material outlining the approach they are now planning to take.  This is what is now stated on the website:

The Official Information Act allows the Reserve Bank to charge for preparing information that we send in response to requests. When charging for responses to Official Information requests, the Reserve Bank works within the guidelines published by the Ministry of Justice here – Official Information Act: Charging for Services. Charges are $38 per half hour of staff time after the first hour, and 20 cents per page for printed or copied material provided in response to a request, after the first 20 pages.      The Reserve Bank is resourced to meet disclosure obligations for a reasonable level of Official Information requests and generally will not impose charges for small, simple or infrequent requests. If requests are made for large amounts of information that require substantial collation and research, the Reserve Bank’s first step is to work with the requester to refine the request to a smaller scale or scope that is less likely to involve charges. Where request is still chargeable and likely to be expensive, we will give the requester further opportunity to refine the scope of the request and thereby reduce or eliminate charges.

Basis for charging     The cost of providing free responses to Official Information requests is generally borne by taxpayers. The Reserve Bank believes that requesters should bear some of the costs when requests are made for very large amounts of information, where a response to a request is particularly complex, or where individuals or organisations make very frequent requests.

Guidelines for charging      Charges will be imposed for responses when preparation of the response involves more than one hour of chargeable collation, research and preparation work. If the Reserve Bank decides that information requested can be made available, but that charges are appropriate, we will formally advise the requester of:

• our decision to release the information,
• the estimated amount of proposed charges,
• the basis for proposed charges, and
• the requester’s right to seek an Ombudsman’s review of the proposed charges.

Remission of charges        The need to pay charges may be modified or waived at the Reserve Bank’s discretion, if:

• charges might cause financial hardship for the requester; or
• releasing the information is likely to contribute significantly to public understanding of the Reserve Bank and its work, and release of the information is not primarily for the benefit or interest of the requester; or
• if the information already in the public domain in a form which the requester could acquire without substantial cost.

As I noted before Christmas, it appears probable that the Reserve Bank’s general stance is legal, since the relevant provisions of the Official Information Act itself are quite short and permissive

Subject to section 24, every department or Minister of the Crown or organisation (including an organisation whose activities are funded in whole or in part by another person) may charge for the supply of official information under this Act.

Any charge fixed shall be reasonable and regard may be had to the cost of the labour and materials involved in making the information available and to any costs incurred pursuant to a request of the applicant to make the information available urgently.

Whether it is appropriate is quite another matter.

I discovered the new policy when the Bank sought hundreds of dollars to provide me copies of some easily accessible, non-contentious, very old minutes of meetings of the Reserve Bank Board. But I’m not now the only one to have been hit by the new policy. Richard Meadows of Fairfax was told he would have to pay a similarly large amount to progress several of his OIA requests, a step that has brought greater coverage to the issue. There were articles on Stuff last week (here and here), and yesterday the Dominion-Post editorialised on the Reserve Bank’s new policy, under the heading “An obstacle in the path of freedom”.

The Bank is, of course, bound by the law. But it also notes that it seeks to work within the charging guidelines approved by the then government in 2002. But it is not clear that it is really doing so.

For example, the Bank lists factors it would take into account in deciding whether to modify or waive any charges, but the list it uses is not the same as the list in the government’s charging guidelines. They state

7.1 The liability to pay any charge may be modified or waived at the discretion of the department or organisation receiving the request. Such decisions should have regard to the circumstances of each request. However, it would be appropriate to consider inter alia:

• whether payment might cause the applicant hardship;
• whether remission or reduction of the charge would facilitate good relations with the public or assist the department or organisation in its work; and
• whether remission or reduction of the charge would be in the public interest because it is likely to contribute significantly to public understanding of, or effective participation in, the operations or activities of the government, and the disclosure of the information is not primarily in the commercial interest of the requester.

To comply with these guidelines the Reserve Bank first has to consider the circumstances of each request.   And it is advised to consider whether “remission or reduction of the charge would facilitate good relations with the public” and whether “a remission or reduction in the charge would be the in public interest because it is likely to contribute significantly to public understanding of, or effective participation in, the operations or activities of the government”. The Bank states that it will consider remission or reduction if the request is “not primarily for the benefit or interest of the requester”, but that is hugely different phraseology than the one in the government’s charging guidelines, which talk about where “the disclosure of the information is not primarily in the commercial interest of the requester” – in other words, the test is whether the requester making money from the information in the request.

Yesterday, I was also informed that my request for material the Reserve Bank held relating to its involvement in the post-TPP Joint Macroeconomic Declaration (that our central bank and Treasury were party to, along with macroeconomic authorities in other TPP countries) would also be subject to a charge of $560.

There is no evidence in the letter from the Reserve Bank that they have considered the circumstances of the specific request. For example, as the Dominion-Post editorial notes, charges of this scale “would be a serious obstacle for any individual” and “if OIA requests routinely cost this much it would also be a problem even for large media outlets”.  But I suppose it would not necessarily cause “hardship”

More pointedly, there is clearly no commercial benefit to me at all (let alone it being a “primary” factor) in making such a request. This blog is a non-commercial operation.

What about the wider public interest? Well, the government has been clear that it wants to encourage scrutiny and discussion of TPP issues now that the agreement has been signed. And yet, one press release apart, the Reserve Bank has published no background information about its involvement in the Joint Macroeconomic Declaration, and the Governor has not answered any questions about it. Against that background, a request of the sort I lodged seemed likely to assist public understanding of a new international commitment made by the Reserve Bank. The fact that the Reserve Bank itself constantly stresses the gains from transparency makes their stance on OIA requests in general, and this one specifically, particularly incongruous.

Perhaps the Bank wants to argue that publication on my blog would not advance the public interest (although I’m not sure how they would apply that reasoning to one of the country’s largest media groups). I have, of course, a smaller readership than the Fairfax publications, but by New Zealand standards it is a pretty significant number of people – including, but not limited to, officials, market analysts, journalists and politicians – with an interest in economic and financial policy and analysis issues in New Zealand. The official charging guidelines note that it is reasonable to ask whether requesters have a means of disseminating the requested material. As they note “in the case of the media, however, it can be reasonably assumed that they do have access to means of public dissemination”. The same might be said for requests from reasonably widely read bloggers – blogs not having been as common in 2002 when the charging guidelines were written.

But in any case, the Reserve Bank has itself created a platform for disseminating material, by adopting the (admirable) policy of releasing the results of many of the OIA requests it receives on its own website.

I suspect the change of Reserve Bank policy was prompted by the various requests I have lodged with the Reserve Bank over the last year or so. I haven’t gone back and checked each of them, but I’m pretty sure that in all cases (a) I have written about them here, thus giving dissemination to what the Bank has released (or refused to release) and (b) that all of them have had a focus on enhancing the understanding and scrutiny of a powerful public agency[1].

The Reserve Bank’s new stance is a serious misjudgement. The issue isn’t whether their stance is legal – it probably is – or whether, as applied to either Fairfax or me, it is in accordance with the government’s charging guidelines – it probably isn’t. The bigger issue is the one I have been highlighting for the last nine months. The Reserve Bank is a very powerful organisation, with a great deal of discretionary policy choice left (formally) in the hands of one unelected person. The Bank exercises far more discretion, in a much wider range of areas, than the designers of the Act – and especially of its governance provisions – ever envisaged. Against that backdrop, the Reserve Bank – and its Board and the Minister, both charged with responsibility for the Governor’s performance – really should be going out of its way to be open and transparent – not just on the things it wants to communicate to us, but in facilitating the sort of scrutiny and challenge that open and democratic societies thrive on. The questions might be awkward at times, and some of the angles oblique, but it is for citizens to define the questions and challenges, not the unelected bureaucrats.

It would tedious to go through once again all the areas in which the Bank fails to practice openness and transparency, but to take just three think of submissions on its regulatory proposals, background papers to the current PTA, and background papers on the substantial programme of work undertaken on possible reforms to the governance model. If the Bank is going to add to its generally obstructive approach – responding as slowly as possible, and releasing absolutely as little as possible while waiting out the Ombudsman – by making access to public information something only for those with deep pockets, it will simply further undermine any legitimacy or respect that it has. I would urge the Governor (and his committee) to rethink, and would encourage the Board, the Minister, and members of the Finance and Expenditure Committee to pick up the issue with the Governor. I welcome the fact that James Shaw, co-leader of the Green Party has already gone public on the issue.

More generally, as I have noted before, the Bank would be well-advised to consider adopting a much more pro-active approach to the release of background papers (akin to the pro-active approach taken by the Minister of Finance and the Treasury following each Budget).   For example, the Bank might consider:

• releasing all submissions on regulatory proposals on the website on the day submissions close,
• releasing background papers to the Funding Agreement the day the Funding Agreement is released,
• releasing background papers on any new PTA at the time of the signing of that PTA
• releasing proper minutes of the OCR-advisory Monetary Policy Committee, and of the monetary policy meetings of the Governing Committee, say, six weeks after the relevant OCR release
• releasing background papers to each Monetary Policy Statement immediately after the release of the subsequent Monetary Policy Statement

None of these would be extraordinary by the standards of other government agencies or international central banking.

There would, no doubt, still be matters on which people would lodge Official Information Act requests with the Reserve Bank, but the more open the Bank is upfront the less people will feel the need to lodge ad hoc requests.

More generally, this issue highlights the need for a more comprehensive reviews of the Official Information Act, including the role of the Ombudsman’s office and the charging regime. It may well be the Reserve Bank is isolated in its new stance – the No Right Turn blog is seeking the information on that. But as the Dominion-Post editorial puts it, the “default position should be to give the information free. Only in the most exceptional cases should this rule be breached”.

A reader has suggested that perhaps any proposal to charge should require the explicit advance consent of the Ombudsman’s office. That sounds sensible, provided the Ombudsman is properly resourced, but would require a change to the legislation. Legislation might provide that charges could be levied only for exceedingly complex requests (perhaps those taking more than 100 hours – and with decent document management systems how many should that be?) or where it is evident, on the balance of probabilities, that the primary benefit in releasing the information would be for the commercial interests of the requesters (although general release on a public website would presumably deal with what might otherwise be uncharged gifts to commercial operators). Perhaps there needs to be a separate provision for “vexatious requesters”, akin to vexatious litigants in the courts – but again that would be a matter for the Ombudsman to judge, and “asking awkward questions of powerful agencies” would not qualify of itself as vexatious.

We have sought to avoid a “dollar democracy”. The rich and powerful have no more voting rights than you or I. The same really should apply to the access to public information that enables us to evaluate and hold to account politicians and other officeholders (as it largely has in the way the OIA has been administered  –  for all its problems – by most agencies). Whether or not the Reserve Bank backtracks, it is time for Parliament to revisit the OIA and better fit it for an age when openness and transparency are seen as increasingly important. Part of that will be about a stronger culture (and obligation) to pro-actively disclose, part about better-resourcing the Office of the Ombudsman, and part is about ensuring that access to public information is not determined by the size of one’s bank account.

As I was just about to publish this I noticed an op-ed from the Reserve Bank’s Deputy Governor Geoff Bascand, defending the Reserve Bank’s stance in response to yesterday’s editorial.  Readers can evaluate it for themselves, but I noticed this section

Since the policy was introduced we’ve responded to seven OIA requests and sought charges for two of them because most could be addressed without collating large amounts of information.

The particular charge that sparked recent commentary arose because providing the information requested would take an estimated 8½ hours of chargeable time (along with additional non-chargeable time).

As the Bank has sought charges for two of my OIA requests since the policy was changed, and Richard Meadows noted in the comments on my earlier piece that he was charged for three, this account seems not quite accurate.  And I’m still waiting for a response to my September request for the submissions made to the Bank on its regulatory stocktake.

[1] As it happens, the Board papers I requested last year probably fitted those categories least (they were about (a) some background work on the origins of the Reserve Bank Act and the Board’s role, and (b) the interests of hundreds of present and former members of the Reserve Bank’s superannuation fund (I’m a trustee of the scheme and some difficult issues have arisen from that era)).

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.

And

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

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.

The report is available here. I had some initial comments on the cost-benefit analysis here, and will have some further observations and comments in a post tomorrow.