Bryce Edwards: Reforming the Official Information Act is a democratic test for Labour

By Dr Bryce Edwards*

Opinion - In promising to be New Zealand's most open and transparent government ever, Labour has one key challenge: reform the Official Information Act. This vital piece of machinery for democracy is in terrible disrepair, and the government has promised to rewrite it for the modern age, but so far are stalling on this.

The urgent need for reform should be even more obvious following the important column published this week by senior political journalist Andrea Vance, who argued that this important part of our democracy is broken and this Labour government is part of the problem. I covered issues raised by Vance's column in my last roundup, Jacinda Ardern's opaque government by PR, and you can read her column here: This Government promised to be open and transparent, but it is an artfully-crafted mirage.

Vance outlines how Jacinda Ardern came into office promising reform of the Official Information Act (OIA), and in her first formal speech to Parliament proclaimed: "This government will foster a more open and democratic society. It will strengthen transparency around official information."

However the reality is quite different: "At every level, the Government manipulates the flow of information. It has not delivered on promises to fix the broken, and politically influenced OIA system." The journalist has her own story of battling with both government departments and politicians to get information that legally should be available.

Vance has previously written about the importance of the OIA, and the vital need for it to be reformed - and you can read her 2019 article, Hide and Seek: How politicians seek to hide your information away, and her article with Nikki Macdonald: Redacted - our official information problems and how to fix them. Another useful feature story is Keith Lynch's Protect the public's right to know: cure the unhealthy Official Information Act.

How bad is the state of the OIA?

Some have argued in response to Vance and other OIA critics that the legislation and adherence to it is not as bad as is being made out. They point to statistics from 2018 that show the proportion of OIA requests that get answered within the legal time constraints are very high, and improving. For example, Labour-aligned blogger Gerard Otto says: "by the 2nd half of 2018 - 95% of all Official Information Act requests were completed on time under Labour, compared with only 91% in 2015/2016 under National" - see: Andrea's artfully crafted mirage.

However, blogger No Right Turn has recently outlined how government agencies are manipulating the reporting process to make the statistics look better - particularly by "unlawfully extending requests to avoid them being classed as late" - see: Juking the stats, and You can't manage what you don't measure: Improving OIA statistics. Looking at just one agency's OIA data (the Ministry of Education), he found that 40 percent of their responses were outside the statutory 20 working day timeframe.

In another example, the blogger focused on police responses to OIA requests beyond routine insurance-type requests and found that only 42.5 percent were answered within the legal timeframe, which he labels "appalling" - see: How bad are the police at the OIA?.

For more on this, see Nikki Macdonald's Police national headquarters fails to answer more than half of OIA requests on time.

Another interesting case study, from March, is also reported on by Macdonald - see: Ombudsman tells Health Ministry to apologise for 'unreasonably' refusing Stuff immunisation data requests. In this, the Ministry of Health was found to have breached the OIA in multiple ways when it refused to provide data requested by three journalists.

For more background on the story, see Macdonald's earlier article from November: Three Stuff journalists, three years of knockbacks. Then the Herald asked. The anatomy of an OIA fail.

And Macdonald has followed this with a story about academic researchers failing to get the required information from government agencies - see: Urgent call to improve access to official information - Māori researchers.

If that's not convincing enough that reform is needed, then Andre Chumko reports that Archives New Zealand has released a new report that reveals "worrying and inconsistent patterns of record-keeping within the public sector, which is struggling to keep up with rapidly-evolving technology", ultimately meaning that OIA requests can't be properly answered - see: Record-keeping in public sector still worrying - Archives New Zealand report.

Unsurprisingly, complaints about government agencies' OIA delays are increasing. The Chief Ombudsman keeps records of the numbers, and their most recent report says that "figures for the full year rose about 5 percent to 334" - see RNZ's Official Information Act request delays prompt more complaints.

The high degree of dysfunction means that tweaks to the OIA regime will not be enough to fix the problem. Freedom of information campaigners have therefore argued that Labour needs to undertake a rigourous reform process rather than just carry out in-house tinkering. This was put well by Andrew Ecclestone late last year in his blog post: Why we need a full and independent review of the OIA.

The government's stalled reform of the OIA

Ever since Labour came to power in 2017 there have been on-again, off-again, signals from government ministers that an overhaul or review of the OIA would occur. Just last year, in the lead up to the election, the then Justice Minister Andrew Little revealed a rewrite of the Act would happen, being reported as saying "I am committed to a rewrite of the Official Information Act, and this work will take place in association with my colleague Chris Hipkins, Minister of State Services [Open Government]" - see Nikki Macdonald's Government to rewrite Official Information Act. This article also reports in response: "Freedom of information advocates applauded the review decision, but were frustrated it had taken so long."

However, after the election, new Justice Minister Kris Faafoi admitted any review was likely to be "later in this parliamentary term" - see Nikki Macdonald's Official Information Act review kicked down the road. The Ministry of Justice's large workload is cited as a reason for the delay, referring to the government's newfound interest in extending Parliament's term from three to four years.

Freedom of information campaigners were disappointed by the delay. The response of Council for Civil Liberties chairperson Thomas Beagle was reported: "It was telling that the Government was prioritising investigating increasing the electoral term, which would extend political power, rather than improving a law that keeps that power in check".

Two months later, in March, the Ministry of Justice released documents about the review, following OIA requests from the media. Journalist Nikki Macdonald reported on the release, pointing out that the information was delivered "two weeks outside the timeframe required by the law. No explanation was given for the delay", and when subsequent follow up questions were put to the Justice Ministry Deputy Secretary for Policy Rajesh Chhana, he "failed to answer" - see: Official Information Act review deferred because of justice ministry policy work overload.

These documents showed the delay was even worse than feared, because "the OIA review project was not in the Justice Ministry's 2021-2023 policy programme and had been parked in a 'holding pen' until the ministry's overstretched policy team could find time to consider it." It appeared that the deferral of the project was due to new minister Kris Faafoi giving it a low priority.

Blogger No Right Turn then reviewed the Justice documents, concluding that the ministry obviously was not the right body to be dealing with the review, because: "As an agency, they're stunningly uninterested in the OIA", and as they're too busy anyhow, it "provides a perfect excuse to take the job off them and give it to someone else - ideally, an independent, neutral body untainted by the interests of the public service" - see: The Ministry of Justice advice on an OIA review. He also pointed to Justice's chief executive as being a problem: "Plus of course there's the [Andrew] Kibblewhite factor: an agency led by a chief executive who publicly advocates for greater secrecy is hardly going to be trusted by requesters to rewrite the Act."

Finally, the same blogger has put together five recommendations for what a rewrite of the OIA might look like, including expanding the Act to include Parliament, "enforcement by an independent Information Commissioner", and "criminal penalties for egregious breaches" - see: A transparency agenda.

*Dr Bryce Edwards is Political Analyst in Residence at Victoria University of Wellington. He is the director of the Democracy Project.