OIA

The Joint (TPP) Declaration – another Reserve Bank OIA abuse

Michael Reddell OIA, Reserve Bank, TPP

On 6 November I posted about the joint declaration of the macroeconomic policy authorities of the trans-pacific partnership countries.  This non-binding declaration dealt with issues around exchange rate management etc.  It was, apparently, a price set by the US Congress for being willing to consider legislation to implement the TPP agreement.

The declaration was announced in a joint press release from the Governor of the Reserve Bank and the Secretary to the Treasury.  As they noted in their Q&A accompanying the press release:

This is an understanding among our macroeconomic agencies. It is not a treaty among TPP governments.

My conclusion, which seemed reasonable at the time, was that both the Reserve Bank and the Treasury were parties to this declaration.  Everything in their documents suggested so, and if we are going to have such declarations at all then it makes sense for the operationally autonomous central bank to be a party to it.

I was, however,  struck by one sentence in the declaration, which stated

We, the macroeconomic policy authorities for countries that are party to the Trans-Pacific Partnership…welcome the ambitious, comprehensive, and high-standard agreement reached by our respective governments in Atlanta.

I wondered (a) whether such judgements were really appropriate for non-partisan public servants to be making, and (b) what basis the Governor and Secretary had had for reaching their judgement.  In truth, I was more interested in the Reserve Bank’s response, since I knew that Treasury would have been reasonably actively involved in the whole process.  Accordingly, I lodged an OIA request with each agency.

Today I received this response from the Reserve Bank.

On 6 November 2015, you made a request under the provisions of Section 12 of the Official Information Act (the Act), seeking: 

Copies of any analysis and position papers etc undertaken by those two agencies (RBNZ and Treasury) which provided the basis for their judgement that TPP was an “ambitious, comprehensive, and high-standard” agreement.

The phrase you’ve quoted comes from the Joint Declaration of the Macro-economic policy authorities of Trans-Pacific Partnership Countries published on the United States Treasury website. That document was agreed between the signatories to the TPPA (Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, Peru, Singapore, the United States and Viet Nam).

Work to analyse the TPPA, and to advise the Government about the TPPA, was performed by the Treasury, the Ministry of Foreign Affairs and Trade, and possibly other agencies too. The Reserve Bank did not undertake its own specific analysis and so does not hold information within the scope of your request. The Bank is refusing your request under the grounds allowed by section 18(e) of the Act – the document alleged to contain the information requested does not exist.

A number of things are puzzling about this response:

  • The Bank refers to the declaration being on the US Treasury website.  But the RB/Treasury press release had a link to a copy of the declaration on the New Zealand Treasury’s website.
  • The response states that the declaration “was agreed between the signatories to the TPPA” but, as noted above, in their release the Governor and Secretary said that it was an agreement between macroeconomic policy authorities.  Is the Reserve Bank one of these authorities or not?  And if not, why was the Governor party to the press release?
  • It is also stated that the Reserve Bank neither undertook any analysis of the TPP agreement itself, and nor does it hold information prepared by other agencies.    They state that the information I  requested simply does not exist.  In other words, despite apparently being party to a declaration that lauds TPP as an “ambitious, comprehensive and high standard” agreement, that specific judgement –  really quite political in effect –  is apparently based on nothing on at.  No documents, no file notes, no analysis, no emails.  Is this  the standard of policymaking we should expect from the Reserve Bank?

Finally, if there is really nothing at all, how come it took 17 or 18 working days to respond?  As a reminder, the Official Information Act requires agencies to respond “as soon as reasonably practicable”.  I can understand it taking two or three days, but this response looks like yet another highly questionable abuse of the Act.

I’ve now lodged a further request for any material the Bank did consider prior to issuing the joint press release on 6 November.  Perhaps that will help finally confirm whether the Reserve Bank really is a party to this or not.

 

Justice Collins, the OIA and the Reserve Bank

Michael Reddell OIA, Reserve Bank

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.

A partial backdown from the Reserve Bank

Michael Reddell Financial stability, OIA

Last week I ran a post about the Reserve Bank’s refusal to release the submissions on the new investor finance restrictions, and in particular the reliance the Bank appeared to be putting on the confidentiality provisions in section 105 of the Reserve Bank Act. Those provisions appear to prohibit the Bank releasing any information  it received from anyone “ relating to the exercise, or possible exercise, of the powers conferred by this Part” of the Act.

As I noted then

This seems like a travesty of democracy. Submissions –  on major new public policy initiatives – can be disclosed to foreign central banks or supervisors, but not to the New Zealand public. Any views banks or members of the public might submit to the Reserve Bank on monetary policy would typically be discoverable under the OIA, but those on prudential matters are apparently not. And this is so, even though for for monetary policy there is a relatively specific objective for which the Governor can be held to account, while there is nothing remotely specific about how the statutory objectives for prudential policy should be measured.

…..

A system in which the Governor can tell us as much, or as little, and then with his own slant, on the submissions he receives should be seen as simply unacceptable.  In this case, quite a simple amendment to the Reserve Bank Act would rectify the situation, making explicit that submissions on proposed changes to conditions of registration, or any other restrictions that affect all institutions, are not covered by the section 105 exemption, and should routinely be published on the Reserve Bank’s website.

And noted that.

Of course, if anyone else wants to request copies of the submissions, the Bank should presumably respond immediately declining their request and explaining why.  Unless they want to reconsider and change their interpretation of section 105, any delay would itself be a breach of the Official Information Act.

I knew then that another request had been made and had not been responded to immediately.

Today, the Reserve Bank has responded to that request, and there has been a major change of heart .

Having told me that it would be too much work to release the papers, that the summary of submissions met the statutory requirements (both laughable arguments), and that in any case much of the each of the submissions would have to be withheld, they have had a (welcome) re-think.  The Reserve Bank has now released in full, on its website, the submissions made by all people and entities who are not banks regulated by the Reserve Bank.

This is a significant step forward. It is probably the first time the Reserve Bank has released any submissions on proposed regulatory changes.  I hope that this now sets a precedent, and to check that I have requested copies of the submissions on the regulatory stocktake.

However, the Reserve Bank is still refusing to release submissions made by banks.  It asserts that these are protected by the confidentiality provisions in section 105 of the Reserve Bank Act.  I describe it as an “assertion” because there is no supporting argument or evidence in the letter to Jenny Ruth as to how section 105 protects bank submissions but not those made by other submitters.  Here is what the Act says:

  • This section applies to—

under, or for the purposes of, or in connection with the exercise of powers conferred by, this Part:

    • (b) information and data derived from or based upon information, data, and forecasts referred to in paragraph (a):
    • (c) information relating to the exercise, or possible exercise, of the powers conferred by this Part.

There is no hint I can see of any legal differentiation between material supplied by banks, and material supplied on the same issue by other parties.

If the Bank has a strong legal case, they should let us see it.  I’m certainly not suggesting that they should break the law and release bank submissions if they are legally prohibited from doing so, although I suspect  that they may be doing so by releasing any submissions at all

Whatever the law currently says, is there a case for withholding bank submissions?  I think the answer is no, and if anything it is much more important that bank submissions are discoverable than that those of other submitters are.  After all, banks are regulated entities and the idea that regulated entities should be able to lobby the regulator in secret, and we (citizens) have no ability to see what arguments they have made goes strongly against the principles of open government.   Those concerns about regulators and the regulated getting too close were what motivated Ross Levine to write an entire book, The Guardians of Finance (which I wrote about here).  If anything, there is probably a case for more material on banks to be made public, as I noted in yesterday’s post, but certainly their submissions on policy proposals should not have legislative protection.

In conclusion, I wanted to make two other observations.

First, the Bank has asserted that the “summary of submissions we’ve published accurately and fully summarises the responses received from banks”.  If that is so, it would certainly be welcome, but as their summary certainly didn’t accurately or fully summarise my submission, we have no reason to be confident as to how they have reported bank submissions.

And second, I received a letter from the Reserve Bank this afternoon attempting to rationalise their refusal to release anything to me when I sought the same material.  Here is what they had to say:

Subsequent to publication of our summary of submissions and response to submissions for our consultation on adjustments to restrictions on high-LVR residential mortgage lending, the Bank received another Official Information request seeking copies of all submissions. The timing of these two equivalent requests is a differentiating factor in the Bank’s responses to these requests.

  • Your request was made prior to us doing the necessary work to collate, assess, and consider our response to the submissions and then publish our summary and response. 
  • The subsequent request, from a newspaper, was made on 24 August, after we had completed our assessments and published the summary and our responses.  

The difference in timing is significant because one of the primary reasons for declining to provide information to you was, as envisaged by section 16(2)(a) of the Official Information Act, that doing so would impair efficient administration due to the need to repeat the work assessing submissions for their primary purpose while also assessing them to respond to your request. With the primary assessment work completed, we do not need to repeat it for the Official Information request made on 24 August. Accordingly, our response to the request we received on 24 August is that we are releasing submissions made to us by individual and by non-bank organisations that we do not regulate,

Again, this simply not persuasive, and appears to be a rather desperate ex post rationalisation for what is clearly a change of view.   For any OIA request, the Bank has 20 working days to respond, and can (and has previously, and regularly, done so) extend that time by another 20 working days if necessary.  There was no need for any repetition, or any disruption to their deliberations (especially as they had openly signalled that they intended to turn the submissions around, and announce the Governor’s decision, quite quickly).

I don’t hold it against people when, having reflected more fully on the issue, they change their minds.  I’ve welcomed the partial step forward reflected in the release of the material today.  But it would best not to pretend that the two requests were so different that they had good legal grounds to refuse my request altogether, but were also legally required to release today’s material .  One decision was a mistake –  hopefully not a wilful one.

As I noted last week about section 105

Like so much about the Reserve Bank Act, it is past time to reform these provisions.  Good access to official information is vital if we are to ensure that such a powerful institution is to be robustly accountable.  At present, there is far too little effective accountability and scrutiny.  A system in which the Governor can tell us as much, or as little, and then with his own slant, on the submissions he receives should be seen as simply unacceptable.  In this case, quite a simple amendment to the Reserve Bank Act would rectify the situation, making explicit that submissions on proposed changes to conditions of registration, or any other restrictions that affect all institutions, are not covered by the section 105 exemption, and should routinely be published on the Reserve Bank’s website.

Reforming govenance: a totally secretive Reserve Bank

Michael Reddell Governance, OIA, Reserve Bank

As readers will know, I have for some time been making the case that it is past time to reform the governance of the Reserve Bank.  The Bank’s governance model –  a single unelected decision-maker for a wide range of functions – is out of step with how other countries run these functions, and with how other autonomous New Zealand government agencies are run.  There was some logic to why it was set up that way 25 years ago, which I set out here. But whatever the logic in 1989, it is a model that is not really fit for purpose now, especially given the much wider range of functions the Reserve Bank is now undertaking.

This isn’t a particularly controversial statement.  A couple of years ago, the Treasury recommended to the Minister of Finance that work be undertaken towards changing the governance model.  Many market economists have supported change, and the independent review of monetary policy commissioned by the previous government 15 years ago recommended change.  The Green Party has for several years argued for change, and the Labour Party seems to have toyed with proposing change.

Decisions around legislative governance structures are matters for the Minister of Finance and Parliament.  The Governor has to work within whatever legislative framework is established.  But the Governor himself knows that the existing legislative isn’t ideal.  Shortly after he arrived at the Reserve Bank, I gave him a copy of an earlier paper I had written setting out the background to the current model, and making the case for change.  In response he noted that it had helped inform his thinking on the issues.    In 2013 he gave a speech in which he informed the public that he had decided to make decisions in the forum of a Governing Committee –  himself and his three deputy/assistant governors.  He retained the legal powers and responsibilities, but he envisaged working formally in that committee model.   In his speech, he spoke quite favourably of central banks where decisions are the responsibility of executive committees.  And there was no first principles defence of a single decision-maker model.

So it is pretty clear that the Governor favoured legislative change, and along the lines of an internal executive body (which also happen to be much the same lines as Lars Svensson recommended in that review 15 years ago).  He has also made some rather rash comments to staff about his views on the rather different governance ideas of some particular political parties.

I put in a request for copies of the work that had been done on governance issues over the last two years or so.   This was what I requested

Copies of any papers done by the Reserve Bank on statutory governance issues in the last two years (i.e.: since 1 July 2013).  To be specific, I am requesting:

  • any papers (draft or otherwise) provided to Treasury or the Minister of Finance on these issues;
  • any papers provided to the Governor or the Governing Committee on these issues
  • any internal working or discussion papers on governance issues;
  • any file notes or other records of discussions on these issues between the Governor, and the Secretary to the Treasury and/or the Minister of Finance.

Getting a reply from the Bank took almost two months (the statutory norm is no more than 20 working days), and when it finally came it was surprisingly bald.  Taking almost two months to release almost nothing might be look deliberately obstructive.

They released most of one paper, which is largely about how so-called “macro-prudential” issues are dealt with in other countries.  (Anyone interested can find a copy here)

For the rest, here was the response

The Reserve Bank also holds other information that falls within the scope of your request but which is being withheld from release under the provisions of the Act noted below. 

Reasons that information is being withheld:

  • 9(2)(d) to protect the substantial economic interests of New Zealand.
  • 9(2)(g)(i) to maintain the effective conduct of public affairs through the free and frank expression of opinions by or between or to Ministers of the Crown or members of an organisation or officers and employees of any department or organisation in the course of their duty.
  • 9(2)(f)(iv) – to maintain the constitutional conventions for the time being which protect the confidentiality of advice tendered by Ministers of the Crown and officials.
  • 9(2)(h) – to maintain legal professional privilege.
  • 18(d) – the information is or will soon be publicly available.

At least this now confirms publicly that there has been a work programme underway.   Given that it took two months to reply, it appears to have been something quite substantive, including professional legal advice (and in an earlier holding reply they told me that they had 9786 (no doubt rather coarsely filtered) documents to consider).  And it wasn’t just internal Reserve Bank workings –  it will have got as far the Minister (note the third bullet), and will have involved extensive discussions with Treasury at a variety of levels.

This reply is simply extraordinary.  It is one thing to withhold bits of a particular paper on specific statutory grounds, but I cannot see what grounds they can possibly have for withholding (for example) even the titles of the papers covered by my request.  And the notion that disclosure of  background work on possible governance reform could harm the “substantial economic interests of New Zealand” is just laughable.  Perhaps the Governor is rather exaggerating the importance and impact of the Bank’s governance arrangements?

I was interested in the final item on their list of excuses.  Wanting to be reasonable before highlighting this response, I asked the Bank a couple of days ago when anything would be “soon publicly available”.  Perhaps they do have a speech forthcoming, or a treatment of the issue in the forthcoming Annual Report?  But they have not even replied to my email.

If the Official Information Act really provides protection for every single one of the papers covered by my request, including the titles of those papers, the Act is even more toothless than most had realised.  In fact, I suspect that this is a case of instititutional arrogance and over-reach by the Governor, who doesn’t really seem to regard himself as accountable to the public.  Perhaps the Governor is embarrassed, or frustrated, that the Minister of Finance or Treasury were not convinced by his particular arguments?  Perhaps he had staff simply look at one option, and ruled out of court any serious consideration of the wide range of options used internationally and elsewhere in the New Zealand public sector to govern powerful public agencies?  Whatever the explanation, he doesn’t want us to know.

If the work on statutory governance reforms has been completed, there is no obvious good reason for withholding the material that was done.   The statutory purposes of the Official Information Act are as follows:

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:

Reform of the governance of the Reserve Bank is a long-running issue, and not obviously one of those issues that needs to be worked on in total secrecy.  Indeed, any work the Reserve Bank has done could help inform an ongoing discussion about the best possible options for the future.   And all this material has been generated at the expense of the taxpayer.  It is official information, and there is a public interest in its release.  And even if work is still going on, the case for such total secrecy seems very hard to make.

Plenty of free and frank material is released under the Official Information Act.  As an example, not long ago, The Treasury released some pretty critical comments on the Reserve Bank investor finance restrictions. What makes the Reserve Bank different?   The Treasury has also released its 2012 advice on reforming Reserve Bank governance.  What about the Reserve Bank makes it so special that it believes the same law does not apply to it –  that every single piece of paper anyone in the Bank has done on statutory governance reform must be totally withheld?

As I’ve said previously, the Reserve Bank is much less transparent than it likes to make out.  This is just another example.  We’ll see whether the Ombudsman agrees with their interpretation of the Act.  Whether or not she does, this decision by the Governor is not the hallmark of an open and accountable public institution, committed to scrutiny and debate and to improving policy and institutions through the contest of ideas.

The Reserve Bank and the Official Information Act

Michael Reddell OIA, Reserve Bank

(for anyone who is bored with this subject, feel free to read no further).

I have mentioned various Official Information Act requests I have lodged with the Reserve Bank, and the difficulty the Bank seems to have with the proposition that its information is public information and that, unless there is good statutory reasons for withholding the information, it should be released as soon as reasonably practicable, and in any event no later than 20 working days after the request was lodged    Agencies are funded to cover their statutory responsibilities, including those under the OIA.

It would be tedious to readers to run through all the responses I have had, so I will highlight three.

In this post, I discussed a request I had made for a limited range of papers that fed into the March 2005 Monetary Policy Statement (ie 10 year old papers).  On the last working day of the originally available 20, the Bank extended the request for up to another 20 working days,  I’m still waiting, and will no doubt hear something next week.  As a reminder to that Bank, that “as soon as reasonably practicable” is the law of the land.

I also asked the Bank for papers around the 2012 PTA.  As I noted earlier, they came back wanting to charge me for it.  I asked how I could usefully narrow the request to expedite the matter, and (as they are required by law to assist requesters) we had a helpful conversation in which it was agreed that I would revise my request to those (five or six apparently) documents held in the relevant folder in the Bank’s document management system.  I had hoped that might be a matter of only a few days.  I’m looking forward to the final response.

As I was winding up my time at the Bank I lodged an OIA request, asking for clearance to quote historical papers that I had written while I was at the Bank.  In the last decade, those have mostly been opinion pieces.  As I noted to the Bank, I had looked through most of them recently, in the course of clearing my desk, and couldn’t see anything particularly sensitive or likely to cause trouble under statutory OIA grounds.  I suggested that perhaps for older papers they could consider a blanket waiver, and then could have someone look through things I had written in the last three years or so. (I knew that there was one 2012 paper that the Governor had already persuaded the Ombudsman to withhold, and I indicated that I would not be unduly bothered if the Bank still wanted to withhold it, even though the paper was now several years old).

I got a response, again near the end of the 20 working days, saying that the Bank could not give any blanket waivers, and suggesting that if they had to go through the papers it would cost $100000.

Accordingly, I revised my request.   A month ago, I asked only for the papers I had written in a single year, and was very specific that I only wanted papers lodged in the Bank’s document management system, not emails or the like.  As it happened, in the year concerned –  2010 –  I was only working at the Bank for six months.  I don’t know how many papers there are, but I was simply not that productive (and had other things to do).  And these are five-year-old pieces of opinion or analysis[1].

Yesterday, again almost right to the end of the 20 days on this request, I had a response from  the Bank.

Meeting the original 20-day time limit would unreasonably interfere with the operations of the Reserve Bank. Accordingly, and under the provisions of section 15A(1)(a) of the Official information Act, the Reserve Bank is extending by 20 working days the timeframe for a response to your request.
 

It would be almost laughable, if it were not serious.  The Reserve Bank is a very powerful public agency, and the Official Information Act is a key element in open government.  The Reserve Bank seems not to regard obeying the law as a matter of importance.  It is a good example of why, on the other hand, the Ombudsman’s review of the Official Information Act, currently underway, is so important.

If it is of any relevance, which it should not be, I can assure the Bank that my only agenda, in each of these requests, has been transparency.  There is no single document that I desperately want to get hold of and post to make a point, to embarrass the Governor, or anything of the sort.    But if there was, the law is still the law, and information must be provided as soon as reasonably practicable.

[1] Although it occurs to me that the Bank might have interpreted the request as including any advice to the Governor on specific OCR decisions.  I never lodged those pieces in the document management system (the committee secretary did), and am not after those.