Amicus Curiae: The Pandora’s Box: Reforming the Official Information Act

By Ben Bowley-Drinnan

Information is arguably a necessity of life, as it informs our every action. That is why the statement “Information is power” exists. Furthermore, if there is to be effective accountability of those in power, official information is a valuable tool, as it allows discussion of actions and justifications for those actions to be understood.

The Official Information Act 1982 (OIA) has arguably increased the transparency and accountability of government, as it provides that information must be disclosed, unless there are good reasons for not doing so. However, the OIA has been criticised, as Nicky Hager previously stated, because it is “frustratingly easy” for the Government to evade OIA requests in relation to important issues.

Conversely, what some would perceive as frivolous or politically motivated requests have been rapidly granted. This raises the question: has the OIA failed in its lofty ideals, or is it simply a case of application gone wrong?

Whilst the OIA has been criticised, sometimes heavily, by journalists and other media, it has arguably done far more for political transparency and accountability than any prior piece of legislation. Under the Act, there must be good reason for not releasing any information, such as prejudicing the economy of New Zealand, endangering the safety of any person or prejudicing the maintenance of the law.

However, whilst these statements appear to be significantly limiting, there is large scope for avoidance. Indeed, the previous Minister for Trade, Tim Groser, was criticised by Justice Collins for utilising a ‘blanket ban’ on documents requested by Jane Kelsey in relation to the TPPA, on the basis it would prejudice New Zealand’s international relations. Furthermore, Jacinda Ardern refused to release a 38-page document detailing coalition agreements with New Zealand First on the basis that it was “not official information”.

The refusal of successive Governments to fully engage with the OIA demonstrates the tension between accountability and the day-to-day functioning of government.

The refusal of successive Governments to fully engage with the OIA demonstrates the tension between accountability and the day-to-day functioning of government. Whilst accountability appears to be a line that appeals to many voters around election time, this is arguably not best suited to government. There are many things Ministers wish they could keep secret, and there is arguably advice or information that they wish to not enter the public domain, something Minister Clare Curran would have noted.

Indeed, the Chief Ombudsman has noted that ministerial advice has been affected as a consequence of OIA requests, and OIA requests are often worded so verbosely so as to give little to no information away at first glance. Moreover, OIA requests, despite requiring a response within a certain time limit, are often extended on the basis of requiring “further consultation”, significantly limiting the utility of the OIA to journalists, who increasingly have to work against shorter and shorter deadlines.

Whilst the OIA has been limited in terms of its effectiveness by political manoeuvrings, that is not to say it has completely failed its purpose. Information is still more freely available than ever before, and a significant percentage of OIA requests are met, which has arguably significantly changed the culture regarding accountability of Parliamentary decision-making from one of secrecy and protection to one of transparency and open information.

The real issue appears to be how political operators have used loopholes and wording within the OIA to distort and impede progress. This is not unexpected. It would be unwise and potentially dangerous for such information to become available in the public sphere, such as economic data or national security information. But it is difficult to see how simple requests that are not restricted by the Act itself are being rejected or indeed delayed significantly, as this distorts the purpose and indeed the progress of the Act.

As a result, it is arguable that the Act needs to be revamped and overhauled in order to make it more fit for purpose. However, such a reaction would likely be knee-jerk, and could potentially complicate the issue further. What is necessary is an overhaul of the culture regarding the OIA that has sprung up within government departments, from one of fear and distrust to one of support and transparency.

What is necessary is an overhaul of the culture regarding the OIA that has sprung up within government departments, from one of fear and distrust to one of support and transparency.

The Chief Ombudsman has previously stated his department will not ask for more funding. It is debateable whether or not such a statement would help or hinder the work of the Ombudsman. More funding for the chief watchdog of Government departments could theoretically help to improve transparency, as it would be able to detect abuse of the non-disclosure principles and help to improve public discourse.

However, it could have the opposite effect, as advisors may feel at risk of personal attack if their advice is disclosed to media or other entities on the basis of a OIA claim. Despite these hypotheticals, it is clear that the OIA, whilst currently functioning, could arguably go significantly further. Whilst it would not appear to be a significant issue to the average voter, upon reflection, it is of far more significance. If the public has access to more information, there is no observable downside.

Whilst there is a choice in whether or not the information is used, the choice is there. Moreover, more information would enable the media to effectively fulfil their role at holding the government to account, which would significantly improve political engagement.

After all, isn’t more information a good thing?

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