Jack Garden, Content Contributor

Politicians have long understood the crucial link between controlling the flow of official information and maintaining control of the government benches. Ministers who can sweep under the carpet documents detailing extravagant public sector purchases or failed million-dollar projects can convince citizens of their competency when the reality is the opposite. Armed with official documents, individuals and journalists can embarrass Ministers, force resignations and advocate for causes that the government would rather ignore. For the ordinary citizen, official documents can help understand whether the local council has valued their house properly. For the investigative journalist, they can uncover law-breaking at the highest levels and unseat a President. Consequently, the struggle for the right to investigate the public service can have tremendous real-world impacts.

Today, everyone is able to request documents from any branch of government from the Official Information Act 1981 (OIA) and its local government counterpart.[1] Though freedom of information legislation exists across most democratic nations, public sector transparency is a relatively recent innovation. In New Zealand, before the passage of the OIA, the Official Secrets Act 1951 criminalised the release of information “prejudicial to the safety or interests of the State”.[2] In practice, this meant that most information was kept secret unless the Crown made a decision to release it, making the business of government remarkably opaque for most citizens.[3]

Soon after the passage of the Official Secrets Act, a competing effort to increase the transparency and accountability of government fought for, and eventually achieved the enactment of the Official Information Act 1981. The legislation’s lofty goal was “to enhance respect for the law and to promote the good government of New Zealand”, by assuming that unless there was good reason not to, official documents were to be released to the public upon request.[4] This provided an essential tool for both journalists and citizens alike to inquire into the work of public servants, and was described at the time by the Minister of Justice as “one of the most significant constitutional innovations” in decades.[5] It soon became a cornerstone of New Zealand democracy.

The legislation has proven time and again its effectiveness in holding governments to account by uncovering breathtaking behaviour by civil servants. In the past year, for example, the Security Intelligence Service released emails to the Weekend Herald in which agents referred to Kim Dotcom as a “fatty po po” and joked that “he could be defeated by a small set of stairs”.[6] Similarly, last month, GPS location data released by the New Zealand Transport Agency showed that employees driving its cars regularly and flagrantly disobeyed posted speed limits.[7] Analysis revealed that senior managers in the department, which spends $32m per year on road safety advertising, sometimes travelled at up to 145km/h while on official business.[8]

However, legislation that is too successful at uncovering scandals can tempt governments to pull down the shutters. Earlier this year in Britain, The Guardian used similar legislation to access memoranda written by Prince Charles to Ministers, lobbying for personal causes such as alternative medicines—a major departure from his accepted constitutional role.[9] The newspaper had been in a protracted legal battle with the Attorney-General over the release of the letters for the better part of a decade.[10] The desire by the Government to conceal the correspondence was such that, although the first tranche of documents was released, the Act was subsequently amended to specifically exclude future correspondence of the Prince.[11]

While such reactionary law changes have not occurred in New Zealand, citizens are constrained by limitations on the types of information they may request. Clearly, some information held by the Government will be commercially confidential, concern private individuals or relate to national security. It would not be in the public interest for this material to be published, as certain branches of the executive would be unable to operate effectively. Sections 6, 7 and 9 of the Act provide for these situations by defining certain criteria for documents to be withheld. The agency that holds the document must examine the requirements of the Act and decide whether to release the information requested.

Of course, this creates a significant conflict of interest: departments who receive requests for embarrassing documents will naturally be inclined to apply the criteria for withholding information liberally, in order to protect themselves. This may even extend to wilfully disregarding the law: last year, a former public servant claimed Customs lawyers were ordered to refuse damaging official information requests regardless of whether they fell within the Act’s criteria for withholding documents.[12]

The Act’s drafters recognised this problem and developed a system of appealing to the Ombudsman to ensure government departments follow the legislation.[13] The Ombudsman has the power to review the decisions of government departments, examine the documents requested, and make recommendations as they see fit.[14] This oversight is, in theory, designed to ensure agencies follow both the spirit and letter of the law.

In practice, however, the performance of the Ombudsman has left much to be desired. Primarily, this has been due to being continuously underfunded, resulting in remarkably slow resolution rates for complaints due to a large backlog. In the year to June 2014, the watchdog received over 1,400 complaints with some taking over a year to conclude.[15] Just 23% of high-priority complaints were resolved within the target of six months, and only 44% of standard-priority complaints were resolved within a year.[16]

This yawning gap in resolution timeframes is significant. While some documents can remain relevant for years, in many cases the news value of stories evaporates by the time the Ombudsman comes around to addressing requesters’ concerns. For example, journalists claim that in the run-up to the 2014 election there was a total lack of OIA responses, as public servants wary of releasing damaging material resorted to stalling tactics.[17] Reports that had been requested a year earlier and ordered released by the Ombudsman were delayed until the election was over, and political and public interest had moved on.[18]

Alleged abuse of the Act has not always been concerned with improper withholding of information. Following the publication of Nicky Hager’s book Dirty Politics last year, allegations have intensified about the use of the Act to leak politically damaging material to media, undermining public sector neutrality. In particular, it was claimed that in 2011 the Security Intelligence Service purposefully released misleading information to the media about the then-leader of the opposition, Phil Goff, to damage his credibility. It was also claimed that staffers in the Prime Minister’s Office had co-ordinated the OIA request with Whale Oil blogger Cameron Slater. These accusations were later subject to an inquiry by the Inspector-General of Intelligence and Security, who found that a political adviser in the Prime Minister’s Office leaked information to be requested under the Act.[19] The Inspector-General also concurred that the Service disclosed “incomplete, inaccurate and misleading information” about Mr Goff.[20] Although the partisan use of sensitive information was criticised, no evidence of deliberate wrongdoing by the public service was found. The Director of the SIS was subsequently subject to widespread criticism for perceived mismanagement of the situation, and the staffer who leaked information to Mr Slater resigned.[21]

The various accusations and concerns led the Ombudsman to establish an independent review of the application of the Act across 12 government agencies. The report, which has been progressing this year, will probe the accusations of wilfully misapplying the Act as well as consider whether changes are needed in its application.[22] It is hoped that wide-ranging changes to how government agencies approach OIA requests will come about as a result, and fewer complaints of broken rules will come to light.

However, it may be that structural flaws within the Act require more significant change to the official information regime. Some have called for amendments to give requesters greater powers to force government compliance when agencies flout the law. A 2012 Law Commission report analysed the OIA in exhaustive detail, and made numerous recommendations to Parliament on changes to the regime. Among these were granting the ability for requesters to seek relief from the courts where agencies neglect a duty to release specified information,[23] requiring departments to proactively release documents,[24] and establishing a new office to deal wholly with OIA-related complaints.[25]

Most of the recommendations were received well by commentators and journalists, who recognised the importance of providing a strong appeals body to ensure that government agencies are not able to decline requests out of convenience.[26] A more radical approach (not suggested by the Law Commission) would extend to introducing offences in the legislation for deliberately concealing a record. Such provisions exist in the Canadian and British legislation,[27] and a similar offence for destroying documents exists in the Public Records Act.[28] However, this would not guarantee the timeliness of requests, and could delay the release of information even longer as agencies are forced to analyse their actions from both public relations and legal standpoints.

Public interest in amending what admittedly seems a relatively technical piece of legislation does not seem to extend far beyond law and journalism. Similarly, there is little incentive for the government to spend time developing new ways for scandals to come to light. However, the crucial role the Official Information Act plays in government means it cannot be neglected. It is hoped that a critical and rigorous report from the Ombudsman may provide the stimulus to provoke a wide-ranging review of this aging cornerstone of New Zealand democracy.

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[1] Local Government Official Information and Meetings Act 1987.[2] Official Secrets Act 1951, s 6(b).[3] Law Commission Review of the Official Information Act 1982 (NZLC R40, 1997) at 144.[4] Official Information Act 1982, s 4.[5] Hon J K McLay (23 July 1981) 439 NZPD 1908.[6] David Fisher “SIS spies to Kim Dotcom: We're sorry for calling you fatty” New Zealand Herald (online ed, New Zealand, 30 May 2015).[7] David Fisher “Revealed: Road safety staff broke speed limits thousands of times” New Zealand Herald (online ed, New Zealand, 12 August 2015).[8] NZ Transport Agency Annual Report for the Year Ended 30 June 2014 (October 2014) at 180.[9] Robert Booth and Matthew Taylor “Prince Charles’s ‘black spider memos’ show lobbying at highest political level” The Guardian (online ed, United Kingdom, 13 May 2015) <www.theguardian.com>.[10] R v Attorney-General [2015] UKSC 21.[11] Freedom of Information Act 2000 (UK), s 37(1)(aa).[12] David Fisher “Ex-govt lawyer’s ‘bury bad news’ claim” New Zealand Herald (online ed, New Zealand, 19 September 2014).[13] Official Information Act 1982, s 28.[14] Official Information Act 1982, s 30.[15] Office of the Ombudsman Annual Report 2013/2014 (14 October 2014) at 39.[16] At 39.[17] David Fisher “OIA a bizarre arms race” New Zealand Herald (online ed, New Zealand, 23 October 2014).[18] Radio New Zealand “PM backs child poverty advice” (15 October 2014) <www.radionz.co.nz>.[19] Office of the Inspector-General of Intelligence and Security Report into the release of information by the New Zealand Security Intelligence Service in July and August 2011 (25 November 2014) at 50.[20] At 7.[21] The Press “Editorial: SIS at fault but not partisan” (26 November 2014) <www.stuff.co.nz>.[22] Office of the Ombudsman Review of OIA Practice: Project Summary (16 December 2014) at 2.[23] Law Commission The Public’s Right to Know: Review of the Official Information Legislation (NZLC R125, 2012) at 391.[24] At 391.[25] At 325.[26] Catriona MacLennan “Fixing Official Information Act Abuses” (31 October 2014) <www.catrionamaclennan.co.nz>; Dominion Post “Editorial: Information Act overhaul is overdue” (27 July 2012) <www.stuff.co.nz>.[27] Access to Information Act RSC 1985, c A-1 s 67.1; Freedom of Information Act 2000 (UK), s 77.[28] Public Records Act 2005, s 61.

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