The Case for a Full Review of the Official Information Act

The NZCCL's submission in response to the call for submissions on reviewing the Official Information Act.

Summary

The NZ Council for Civil Liberties firmly believes that New Zealand's Official Information Act needs a comprehensive review.

While a radical and far-sighted piece of legislation when it was passed in 1982, there have since been many changes in the way the world and government works. Shortcomings have become obvious and new opportunities have arisen. New Zealand's official information laws are now ranked only 51st in the world by Global RTI Rating and this shows how much scope we have to do better.

In that time the Official Information Act has become a keystone of the New Zealand government's transparency and openness. Any review must therefore also be done in a transparent and open process, with full participation by those who use the OIA – the people of New Zealand.

NZCCL Review

The Official Information Act is the legal expression of a very simple idea – we've got a right to know what our government is doing. The OIA is used every day by journalists, activists, the curious, and people wanting to know about the government actions and policies that affect their lives. It has been a powerful tool for open and accountable government – but it's shortcomings are becoming harder and harder to ignore.

Taking notice of the increasing number of complaints about the failings of the OIA, we thought to help the change process along by undertaking our own review. We recommended radical changes including:

• Establishing a new Open Government Commission to take over enforcement of the act from the Ombudsman.
• Enhancing accountability for agencies subject to the OIA through both reporting and penalties.
• Create a new crime of actively subverting the OIA.
• Opening up government-commercial relationships by implementing open tendering and contracting.
• Any many more changes, both major and administrative.

Current Problems

When talking to journalists, it's not whether they have a bad OIA story, but how many they have and how bad they are. These problems are shared by activists, interested members of the public, and anyone else using the OIA to access government information.

The problems include:

• Political spin doctors are increasingly limiting and controlling the flow of information to the public.
• The 20 day limit is treated as a target rather than a limit, and is often ignored or delayed for no good reason.
• The public service increasingly prioritises avoiding Ministerial embarrassment to the point of self-censorship.
• Outsourcing of government services to private companies limits accountability by claiming commercial confidentiality.
• The Ombudsman, who we rely upon to uphold our OIA rights, has struggled to keep up with complaints, is powerless to enforce compliance, and there is no way to appeal their decisions.
• Release of data and information using methods that are deliberately hard to read and reuse.

While some of the issues and problems can be addressed by minor amendments, others will require new ways of thinking, possibly taking advantage of developments in freedom of information law overseas.

 
Opportunities for Improvement

At the same time, there is an opportunity not just to fix the OIA but to improve it and thus improve openness and transparency.  Some of the opportunities we see are:

• Expanding the OIA to cover more bodies such as Parliament, the IPCA and IGIS, the Ombudsman, the Auditor-General, and state owned SOEs.
• Publishing more information proactively by defining types of documents that should be published automatically and empowering the regulator to investigate and sanction failures to do this.
• Open tendering and contracting to make commercial arrangements more transparent.
• Adding a public interest test to the section 6 withholding grounds.

There are undoubtedly more improvements which would be brought out in a full review.

How the OIA Should be Reviewed

The Official Information Act is now at the core of open and transparent government in New Zealand.

Any review must be wide-ranging and include all users of the Official Information act. Any changes should have significant support.  

This process for developing improvements to our legislation on open government may take longer than an inward-facing department-dominated review of the OIA. But it is one that will command greater public confidence, and deliver better results, both for the public, Government, and agencies. Any less would risk being seen as illegitimate.

By locating reform of the OIA in the context of New Zealand’s OGP Action Plan, the Government will send a strong signal, internationally and domestically, that it is committed to similarly high quality analysis, informed by requesters of official information as well as agencies, academics and others with an interest in public administration in New Zealand.
    

Conclusion

The Open Government Partnership Action Plan commits the government to "test the merits of undertaking a review of the Official Information Act 1982 and provide and publish advice to government".

We say the merits are obvious.
    
We call on the Government to commit to a comprehensive review of the Official Information Act that puts public participation in the policy development process at its heart. We can think of no better way for the Government to signal its commitment to the values of the OIA and open government than to commit to an open, inclusive, participatory process for improving it.