DOC was unlawful in its refusal to provide copies of its advice to ministers regarding the proposed Fast-track Approvals Bill, says the Ombudsman. File photo. Photo: RNZ/ Nick Monro
The Department of Conservation acted unlawfully by refusing an OIA request for information on new fast-track legislation, the Ombudsman has ruled.
Peter Boshier's decision - which followed a complaint by Forest and Bird - found the Department of Conservation was both unlawful and unreasonable in its refusal to provide copies of its advice to ministers regarding the proposed Fast-track Approvals Bill.
The bill in its current form would see an unprecedented amount of power placed in the hands of the Ministers for Infrastructure, Transport and Regional Development - Chris Bishop, Simeon Brown and Shane Jones - who would have the final say on whether projects go ahead, with fast-tracked projects able to sidestep rules in existing legislation, and projects already rejected by courts able to get the go-ahead.
Chief Ombudsman Peter Boshier Photo: Getty Images
Environmental advocates have called it a "war on nature", and legal experts have warned it would open the ministers up to accusations of bias and conflicts of interest.
On 8 March, Forest and Bird requested a copy of advice provided by the department to ministers regarding the Fast-track Approvals Bill, which the department refused.
Its reasoning fell under section 18(d) of the Official Information Act 1982: "That the information requested is or will soon be publicly available".
But according to the Ombudsman: "I have formed the final opinion that the Department's decision was not lawful because there was not, at the time, a sufficiently developed proposal to release all the information that had been requested."
"Reliance on section 18(d) in this case also frustrated one of the key objectives of the OIA - 'to enable…more effective participation in the making and administration of laws' - such that even if the legal grounds for relying on the discretion in section 18(d) were made out, the use of the discretion in these circumstances was unreasonable."
The department said a copy of its advice to ministers would be included in wider release of documents, which at the time, was thought to be about a week before submissions on the new bill closed.
"We have been seeking update on the date of the proactive release, and continue to do so. We do not however know the specific date, other than it is still planned."
On 14 March, the Ombudsman said: "The department quite properly expressed concern to the minister's office that five weeks would mean the release 'couldn't inform submissions'. The department already had an OIA request and noted 'we should be aiming for faster'."
Submissions closed at midnight on 19 April - and the document dump happened more than a month later, on 27 May.
"Ultimately, the department made the decision that its hands were tied by the Government's decision to proactively release," the Ombudsman wrote.
The planned wider release "had no clear release date" and "the Department had determined that not all the requested information would be released".
"My view is that the grounds to exercise the discretion in section 18(d) were not made out on these facts and, as a consequence, the decision was unlawful."
Forest and Bird spokesperson Geoff Keey said it was very disappointing this information was not released prior to submissions closing.
"It would have made sense if it was released in time for people to read the stuff before they put in their submissions."
He said the department clearly believed the information would be made available before this cutoff, and the process was going to be run by the Ministry for the Environment and the Minister for Infrastructure and RMA Reform, Chris Bishop.
"That didn't happen, so I guess we're left wondering why that didn't happen.
"The government has been incredibly reluctant to put the information on the table that people need to be able to assess this bill, and it's usually a sign when government does that, that there are big problems."
The Ombudsman noted that the likely next step, which would have been to order the information be released, was "no longer necessary, given that this action has been taken".
Keey said the next thing the government needed to do was provide the list of projects set to be automatically fast-tracked alongside the bill when it became law, for the select committee to consider.
The list wouldn't be completed yet, because an independent panel was set to consider the projects that had been put forward.
"Earlier on, the view was that it was the advice of ministers and officials, and that confidentiality, but that has to be weighed up against the public interest, and these projects could have massive implications," Keey said.
Penny Nelson, Department of Conservation Director General, said: "We accept the findings and are reviewing our process."