Why we need a full and independent review of the OIA

In March 2019, the Ministry of Justice made the surprise announcement that it was inviting public submissions on whether there should be a review of the Official Information Act (OIA), or if improvements to practice by agencies and officials could fix the problems.

It was a surprise because until then, information disclosed by the Ministry had indicated they were only going to seek the views of a few ‘stakeholders’ that they had handpicked to hear from.

I was pleased that there was an opportunity for the public to provide their views to the government. Not just because the OIA belongs to all of us in New Zealand – it’s the main law that provides us with a right to know – but because this issue was being considered in the context of a commitment in New Zealand’s Open Government action plan. As a member of the international Open Government Partnership, New Zealand has to produce an action plan every two years, saying what it will do to become more open, and how this will help with different aspects of public service and democracy.

I met with the Ministry of Justice officials, and made a written submission, which can be downloaded here. I advocated for a full rewrite of the OIA, conducted in public by independent experts with the broadest possible terms of reference – we also need the review to look at the connections between the OIA, the Public Records Act, the Local Government Official Information and Meetings Act, and the State Sector Act (which will at some point by superseded by the Public Service Bill). We also need to move oversight and regulation of the OIA from the Ombudsman to a new Information Commissioner, with the power to make binding orders. The law needs a rewrite.

After the submission period, it has gone very quiet. The Ministry has not listed the consultation on either of its two web pages for closed consultations, nor published the submissions – except in response to an OIA request that I made for them via FYI.org.nz. I and others have asked for the analysis of the submissions, and for the advice provided to the Minister of Justice. The analysis was partially provided, and the advice withheld.

The Ministry has provided quarterly updates to the State Services Commission on its progress with this commitment, but at the time of writing the last published update was from December 2019, when we were told that the Minister was consulting colleagues and seeking further advice from the Ministry.

My summary of why we needed a full review of the OIA, rather than tinkering at the edges, is on page 12 of my submission, and is reproduced below:

  1. Actions to deliver OIA practice improvements have been haphazard in choice and in quality of implementation so far, so we should not rely on more of the same to achieve the changes needed;
  2. Practice improvements cannot overcome the obstacles to achieving desired outcomes that are present in the current law;
  3. Ministers and officials who have been occupied with other matters of law reform since the 2017 general election are likely to be unaware of the progress made in other jurisdictions, and inviting public submissions as part of a review will enable this to occur;
  4. High quality law reform to deliver substantive improvements to the openness of New Zealand’s governance and institutions is likely to benefit from a clear statement of the Government’s values and objectives in this field. Inviting comments and suggestions on how to achieve them will enrich the information officials can draw upon when providing analysis and advice to Ministers on how to proceed;
  5. A public review will enable a more holistic consideration of how related legislation such as the Public Records Act, LGOIMA and Ombudsmen Act also need amendment to ensure they complement each other in contributing to openness and high-quality management of information held by government; 
  6. Proceeding directly to the introduction of an OIA Amendment Bill will not only result in missed opportunities but also increase political and media friction, and diminish public trust in Ministers and officials; and
  7. A public review of the OIA is necessary if the Government is committed to the spirit and purposes not only of the OIA but also New Zealand’s membership of the Open Government Partnership, and the government’s own guidance on policy making.

I hope that we will get a decision from the Government, before this general election, that they will initiate a full review of the OIA – and that the review will (a) have broad terms of reference, and (b) be conducted by independent experts. At the very least, the advice should be published before the general election, to help voters who care about this key aspect of our democracy to make an informed choice of who to vote for.

Ideas for New Zealand’s 4th Open Government Partnership National Action Plan

Introduction

This post is a quick-and-dirty attempt to capture some ideas for what could be commitments the Government could include in New Zealand’s fourth Open Government Partnership National Action Plan. This Action Plan (or NAP) will run from the second half of 2020 to the middle of 2022.

The State Services Commission (SSC) appears to have already decided – contrary to the OGP’s spirit if not the letter of the requirements for co-design of action plans – that this NAP will have three over-arching themes: ‘Participation’, ‘Responsiveness’, and ‘Transparency and Accountability’. However, its A3 document [PDF] setting out ‘How we will involve New Zealanders in the development of the plan’ says that they ‘welcome suggestions for commitments that fall outside these areas too’. Based on experience of the Wellington workshop held on 3 March, there are grounds for doubting that – there was no time in the schedule of their workshop for conversations amongst participants about other topics. There was no chance, for example to suggest that the over-arching theme should instead be climate change, or the wellbeing indicators adopted by the government to guide spending decisions, or the UN’s Sustainable Development Goals that New Zealand has signed up to, or implementation of the outstanding recommendations in Transparency International’s National Integrity Systems Assessment, or even the recommendations made by the OGP’s independent reviewer of New Zealand’s progress.

While I’ve been critical of the serious shortcomings of the first workshop and the process to date, I still think it’s important to try and make the most of the opportunity that the OGP action plans afford us. The key to success will rest on two things: civil society insisting loudly on high quality ambitious commitments that will actually make a substantive difference, and on the Minister for State Services actually paying attention to this work and listening to us.

The table below sets out some ideas for commitments. I stress these are really quick and dirty suggestions – there’s been no attempt to sketch out the intervention logic in detail. They are purely provided in order to assist others who might be considering what commitments they’d like to recommend for inclusion in the NAP. No attempt has been made to fit them within SSC’s proposed themes, but there will be some overlap, I’m sure.

Comments and suggestions

I’m happy to receive comments and suggestions here about amendments to the ideas below, or suggestions for additional commitments. But if you’ve got ideas for a commitment to include in the Action Plan, you should also submit them to the SSC’s process by emailing them to ogpnz@ssc.govt.nz. If you can, try to get to one of their workshops or ‘drop-in’ sessions too.


#CommitmentWhy should we include it?
1Continue commitment 11 from the 2018-2020 NAP, to ‘release and maintain an authoritative dataset of government organisations as open, machine-readable data to enhance the transparency of government structures to the public’.

Actions required include actually funding civil servants to work on this, and explicitly mandating agency Chief Executives to (a) cooperate and support this work and (b) begin work to scope what adaptations will need to be made to their business systems to make use of the dataset.

Because (a) the work on this commitment will not be completed before the current NAP ends in June 2020; and (b) it is important that this work continues under the aegis of an OGP commitment so that agencies know that they will be expected to collaborate with those outside government while developing the dataset.

DIA should continue to lead this work as they’ve been doing it well, and the combination of being responsible for digital government, the National Library, Archives NZ and local government means that they’ve got a strong departmental interest in it succeeding.

2To commit to using the Open Contracting Data Standard and Principles for all government procurement, regardless of whether the procurement is done via GETS, an all-of-government panel of approved suppliers, or direct procurement by an agency.

The actions required for this commitment will include:

a) MBIE (as owner of procurement policy for the government) to continue the work they started under commitment 12 of the 2018-2020 NAP, and issue a consultation document to the public, agencies and suppliers for comment;

b) publication of the analysis of the submissions received in response to the consultation document;

c) public consultation on draft advice to Ministers;

d) providing advice to Ministers that may be revised in light of this second round of consultation;

e) Ministers making a decision by December 2021; and

f) if the decision is to commit to the Data Standard and Principles, co-design of the guidance and standards for implementation by MBIE and other agencies.

Government procurement is a significant portion of public spending and this commitment would significantly improve the transparency and accountability of public spending.

While the work on commitment 12 of the current NAP provides open data of recent contract award notices for procurement conducted using GETS, an increasing proportion of procurement is done away from GETS through other channels such as all-of-government panels of approved suppliers.

The desired outcomes for this commitment are:

a) Government adoption of the principles and data standard to apply across central government agencies (regardless of whether they are public service agencies or wider state sector) – which will require changes in systems and process;

b) increased competitiveness of government tendering and better value for public money;

c) cumulative gains in strengthening the integrity of public procurement (and thereby reducing opportunities for poor quality procurement and corruption) through adoption and implementation of an open data standard that will enable linking data with company ownership and directorships and other datasets.

3A decision by the Government to accede to the Aarhus Convention (properly known as the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters), in time for the Meeting of the Parties to consider New Zealand’s application at its October 2021 meeting.

This is going to require the following actions:

a) Provision of advice to Ministers on the benefits and implications of acceding to the Convention;

b) A Minister (probably the Minister for the Environment) proposing accession to Cabinet, and Cabinet agreeing to it;

c) Commissioning a National Interest Analysis (which will draw on (a) above);

d) Parliamentary consideration of the Convention (see here)

e) The relevant Minister writing to the Aarhus Convention secretariat at the UNECE in Geneva by February 2021 to signal New Zealand’s desire to accede.

The Aarhus Convention is a UN convention that gives effect to Principle 10 of the 1992 Rio Declaration. This said (in effect) that if countries were to be successful in protecting the environment, they needed to empower the public with rights under three pillars: the right to information about the environment and its management, a right to participate in decision-making about the environment, and a right of access to justice on environmental issues. Further information here: http://www.unece.org/env/pp/introduction.html

If NZ accedes (signs up to) the Convention, it will have to ensure its domestic legislation meets the Convention standards. This will have the effect of putting in a ‘floor’ on each of the three pillars to safeguard these rights, meaning future governments would not, for example, be able to weaken people’s rights to participate in consideration of consents sought under the Resource Mangement Act, or be able to suspend an elected decision making body on environmental issues as we saw in Canterbury. It is also likely that in some places the Convention would not only safeguard minimum standards, but would raise the requirements for openness. Two examples: the Convention would not allow information about emissions into the environment (eg from a manufacturing or agricultural process) to be refused on grounds of commercial sensitivity if sought under the OIA; and it is likely we would see capped legal costs for groups wanting to bring challenges of government decisions on issues affecting the environment to the courts.

The bigger picture reasons for why we should press for inclusion of this commitment are climate change and biodiversity collapse. As these two closely related problems become ever more urgent to address, we may see governments seeking to act in a more authoritarian or dirigiste manner to adopt measures intended to address the problems we face. However, in a democracy, the legitimacy of these measures rests on public involvement in their creation and implementation. The Aarhus Convention helps cement public rights, which in turn will help ensure democratic legitimacy.

4To adopt mandatory all-of-government standards on public consultation in policy development and service design, and require all government consultations to be published on a central online portal built on an open linked data standard.

This is going to require actions such as:

a) Publication of the results of the Policy Project’s consultations on public engagement experiences, and its analyses of them;

b) Publication of a draft policy paper to Ministers on options for a mandatory all-of-government standard for consultation exercises, and inviting submissions on this draft policy paper;

c) Collation and publication of the submissions on the draft policy paper and providing the final draft of the policy paper to Ministers;

d) Approval by Ministers of a move to create mandatory standards for consultation exercises, and the resources to do the work and build a enhanced portal based on an open data standard;

e) Co-creation of the open data standard for the consultation listings portal, and public consultation on the final draft (if not iterative consultations as the draft standard is developed);

f) Co-creation of the consultation standard, and public consultation of the final draft;

g) Publication of the submissions received on the draft consultation standard, and of the analysis of the standards;

h) Provision of the final text to Ministers for approval and adoption; and

i) Funding of work to implement the standard and monitoring compliance with it.

There is still wide variation in the quality of public consultation undertaken across the public sector. This means that policy makers and service designers are not hearing from all those with an interest in the issue they are working on, which is likely to result in gaps in their understanding of the issues, and thence flawed policy options or services. Problems include:

§  not advertising the consultation to the public, because it’s more convenient for an agency to undertake ‘targeted consultation’ with cherry picked ‘stakeholders’

§  submission periods that are too short, thereby constraining the ability of people (including civil society groups and private sector organisations) to adequately consider the proposals, formulate a response, have the draft response considered by their organisation’s governance bodies

§  not making the consultation documents available in an accessible format – too often documents are in PDF only, which – besides the problems of this format for people with visual impairments – hinders copying and pasting text into submissions as quotations

§  no automatic publication of the submissions, let alone within a specified timeframe, such as two weeks following closure of the submission period

§  no automatic publication of officials’ analysis of the submissions – which is quite distinct from the options they propose to Ministers or other decision-makers

§  no central location online where people know they can be sure that all consultations being undertaken by all agencies are listed. The current portal on govt.nz does not list them all – not even the current process for developing this action plan.

The Policy Project, run out of the Department of Prime Minister and Cabinet, has been consulting on people’s experiences of government consultations. (Again this does not appear to have been listed on the central consultation portal – the irony is deep). It has also been leading commitment 5 in the 2018-2020 NAP, to ‘develop a deeper and more consistent understanding within the NZ public sector of what good engagement with the public means (right across the IAP2’s Public Participation Spectrum)’. It’s time this work resulted in something that the public can meaningfully hold agencies to account with regard to consultation exercises. The UK had similar standards 20 years ago, with, for example a minimum 12 week consultation period. See here.

To get the maximum benefit out of this, and to enable the creation of tools which enable people to set up customised alerts when consultations are issued on topics of interest to them, or by certain agencies in whose work they’re interested, the revised centralised portal should be built on an open data standard. This, for example should include geospatial metadata about the area the relevant consultation applies to: national, regional, local authority, ward level, district health board, and so on. This would enable the creation of interfaces which would let people navigate to find consultations via a map-based interface.

5Legislation requring specific procedures and methods to be followed before any clauses prohibiting disclosure of official information are inserted into legislation, and to mandate the setting up, carrying out and completion of a project to review existing secrecy clauses, and making recommendations for their removal or amendment, so that wherever possible the Official Information Act is the legislation that governs whether information will or will not be disclosed on request.There have been numerous instances in recent years of government departments inserting secrecy provisions into legislation they are preparing for introduction to Parliament. Very often these clauses are completely unecessary as the Official Information Act (OIA) already provides a withholding ground that could be used to refuse a request. On principle, the OIA should be the legislation governing disclosure or non-disclosure of information held by agencies – other legislation should not create ‘end-runs’ around it to cut out the public’s right to seek this information.

These efforts by departments have often failed to comply with the Cabinet Manual and Legislation Design Advisory Committee guidance to consult with the Ministry of Justice and Ombudsman before introducing legislation into Parliament that cuts out rights under the OIA.

Given these failures on both a practical and principled level, it’s time to elevate the requirements on agencies from following guidance to following the law, by making public consultation on proposed secrecy clauses mandatory prior to a Bill being introduced to Parliament. This is because experience also suggests that trying to get such secrecy clauses removed once a Bill is introduced to Parliament is a nigh-on impossible task. MPs simply do not prioritise their or the public’s right to know at this stage of the policy and legislative process.

Given the enactment of these secrecy clauses in the past, the commitment should also include a programme of work to review existing secrecy clauses on the statute book, publish the list of such that it compiles, alongside reasons for their repeal, amendment or retention after considering how the OIA applies to such information. Such a review was conducted by the UK government in the lead up to implementation of its Freedom of Information Act. Report here [PDF].

6Bring on to one page for each [government] Bill introduced to Parliament the information needed by the public to make higher quality written and oral submissions.

This includes links from each page about the Bill to (a) the Attorney-General’s advice on the Bill’s NZ Bill of Rights Act compliance, (b) the Regulatory Impact Statements on the Bill, (c) the Climate Impact Assessments where one is required.

It also should include a requirement that written submissions on Bills are published before oral submissions commence, and that committees publish in advance the dates and times and names of each oral submitter, so that people can make informed decisions about when they may want to attend the committee to listen to other submitters.

At present, select committees that invite written submisssions on a Bill provide only a link to the Bill on the legislation.govt.nz website. They do not provide links to the Attorney General’s NZBORA statements either under section 7 of the Act, or on consistency with the Act, meaning submitters – if they know about them – have to go off and hunt these down. They also do not link to the Regulatory Impact Statements that departments are required to create, and which are listed on the Treasury’s website. In future, some Bills will require statements with regard to their climate impact. It is likely that these too will be tucked away on some Ministry’s website, requiring submitters to go and hunt for these too.

If Parliament is serious about wanting to solicit high-quality submissions to help it with scrutiny and analysis of legislation, it needs to do more to help people find the relevant information produced by officials as part of the process for developing and introducing the legislation.

Closely related to this, Select Commitees only publish bare dates and times for their hearing on Bills, see for example this Schedule of Meetings. Unlike their UK counterparts, no information is provided about which person or organisation is submitting at any session, which means that if an interested person wants to go and listen to the submission from someone else – say an expert in the relevant field – they have no way of finding out when this person will be appearing before the committee. It is entirely possible to do this, as the Committee secretariats arrange the dates and times of oral submissions in advance of the relevant sessions – it requires a change of practice, and possibly some additional resourcing.

The outcome would be higher quality submissions and higher levels of public engagement with select committee’s vital work of scrutinising Bills at this stage of the legislation’s progress through the House.

7Streaming select committees and providing video recordings on Parliament’s own web platform instead of relying on Facebook.It’s embarrassing that a country such as New Zealand relies on a website such as Facebook to livestream video of oral submissions to select committees. Facebook has repeatedly been shown to have enabled mass disclosures of people’s personal data, and constantly manipulates the information presented to users of the site. Many people have either avoided joining Facebook or have left the site because they are unhappy about the company’s conduct. While it is not necessary for a member of the public to join Facebook to watch videos from select committees, visiting the site without knowing how to take suitable precautions will result in Facebook placing cookies on the person’s computer than can then track their use of other websites. New Zealand’s Parliament should not be using a tool that facilitates this conduct.

Facebook also has technological limitations in terms of being able to search for videos of specific submitters, or to watch submissions given at a particular time: if the videos are timestamped, it does not appear this is surfaced to people not signed in to the site. This means the site is all but useless in enabling people trying to find video recordings of specific submitters or specific questions from MPs.

Parliament should commit the resources to develop and implement its own video streaming and recording platform, built on open non-proprietary standards, and not tied to any web platform provider following completion of the contract it has tendered for development and implementation of the technology. There are pre-existing providers of such technology within New Zealand.

8Hansard for select committee oral submissions/testimonyUnlike the UK Parliament, where select committees publish transcripts (Hansard, example 1, example 2) of oral evidence sessions before select committees, the New Zealand Parliament does not. This makes it much hard for those wishing to participate in the process of scrutinsing departments and legislation. They either have to know when to be in the room to listen and make notes in person (even though details of submitters are not published in advance) which is pretty difficult for people even in Wellington, or they have to be willing to trawl through hours of video on Facebook.

A decision by Parliament to commit the resources to producing and publishing Hansard of select committee’s public sessions would be an enormous benefit not only to those outside Parliament wishing to partcipate, but also to MPs, committee secretariats and government officials.

Openness and Official Information Act timeliness

The State Services Commission claims that agencies’ OIA performance has ‘lifted significantly’. What does analysis of the published statistics tell us?

Summary

This turned into a longer piece than originally intended, partly because I have tried to explain things instead of assuming the reader knows all the details. For those who don’t have the time or inclination to read the whole thing here it is in three bullet points:

  • The State Services Commission (SSC) has led a programme of work to ‘improve government agency practices around requests for official information under the Official Information Act.’ This programme of work is set out in a commitment made by the government in its 2016-18 Open Government Partnership National Action Plan.
  • SSC’s claim that there has been a significant improvement in agencies’ performance on Official Information Act (OIA) requests is based almost entirely on figures that appear to show that 95.2% of OIA requests are responded to within the legal time limit, up from 87.6% in 2016/17.
  • While any improvement in timeliness is welcome, the SSC’s claim is undermined by the fact that number of complaints to the Ombudsman about agencies extending the time limit to respond to an OIA request has increased by 150%.

Introduction

One of the perennial concerns about the operation of freedom of information (FOI) laws around the world is the timeliness of responses to requests. A phrase often repeated by requesters and regulators is that ‘information delayed is information denied’, since information released too late to be of use in a political process is just as effective in frustrating a requester as an outright refusal.

In the USA, the National Security Archive’s 2006 audit of the 10 Oldest FOI Requests in the Federal Government found that one had not been responded to in 17 years, and that multiple agencies had requests on hand that were more than 15 years old. In the UK, the Campaign for Freedom of Information called on the Information Commissioner to clamp down on delays by government departments, and used official statistics to show that 78 requests to the Treasury took more than 120 days to answer, and that several other departments had also taken more than 120 days (4 months) to respond to multiple requests.

Here in New Zealand, there are several design features in the Official Information Act 1982 (the OIA) which help to avoid the scale of the delays faced in the USA and UK. Nevertheless, in recent years a fair amount of news coverage has been dedicated to the issue, and successive Ombudsmen have made efforts to persuade agencies of the importance of timely responses. Following the publication in December 2015 of the previous Chief Ombudsman’s report, Not a game of hide and seek, the last Government decided that an appropriate way to address the issue was through the National Action Plan (NAP) that New Zealand has to produce every two years as part of its membership of the international Open Government Partnership (OGP). In the 2016-18 NAP, the government made a commitment to ‘improve government agency practices around requests for official information under the Official Information Act.

Countries belonging to the OGP are subject to three key requirements:

  • they must co-create a National Action Plan with the public every two years, setting out the concrete actions that will be taken over the following two years to make the country more open in the interests of delivering better public services, improving accountability and strengthening integrity;
  • they must assess their own progress in delivering the NAP at the halfway stage and also at the end of each two-year period, and
  • they must have their progress independently assessed by the country researcher employed by the OGP’s Independent Reporting Mechanism (IRM), who produces a mid-term and an end-of-term report on development of the NAP and delivery of the commitments contained in the plan.

New Zealand has just completed its second NAP, and both the government and the IRM researcher are in the process of producing their end-of-term reports. In light of this, it may be useful to look at what the government says has been achieved in relation to its commitment to ‘improve government agency practices’ in response to OIA requests.

What the government committed itself to

The 2016-18 NAP contained seven commitments. Commitment 2 was entitled ‘Improving official information practices’. The government said its objective was ‘To make government information more accessible by adopting a consistent set of agency practices in response to requests for official information.’

The NAP did not specify any outcome indicators against which this objective could be assessed. Instead, it offered what it called ‘verifiable and measurable milestones to fulfil the commitment’. These are detailed in the table below:

Verifiable and measurable milestones to fulfil the commitment Start date End date
Ensure information about the OIA (how to make requests, etc) and responses to requests are easy to access on agency websites. This could include development of single OIA web pages for agencies November 2016 March 2017
Publish OIA statistics (how many requests, time taken to respond, etc) November 2016 March 2017
Develop a clear statement of government policy on proactive release of Cabinet papers and related material October 2016 June 2017
Develop a suite of consistent measures about OIA performance November 2016 November 2017
Improve access to official information by publishing responses to requests on government websites and developing principles for more proactive release November 2016 February 2017
Agencies will be supported to deliver through the development of appropriate guidance and training November 2016 June 2018

We could question why it took until 2016, and a major report from the Ombudsman, for these basic activities to be initiated, but that’s a story – or more likely a thesis – for another day. As it is, these targets are pretty basic output indicators, mostly binary (achieved/not achieved), that have very few attributes that would enable us to assess the quality and utility of what has been delivered against what was promised.

After some prompting by the Expert Advisory Panel appointed by the government to advise it on delivery of the National Action Plan, the SSC started producing quarterly reports on what progress had been made in delivering the seven commitments.

The rest of this post examines the claims made by the SSC in its Year End (March – June 2018) report on delivering Commitment 2.[1] Instead of commenting on the activities and outputs listed under the heading ‘What have we been doing?’, I’m going to take a close look at SSC’s (and thereby the government’s) claims under another heading, ‘How did this commitment contribute to open government?’

The Commission states that the programme of work it began in late 2016 ‘has been critical in driving up system performance’ in relation to ‘agencies’ compliance with the letter and spirit of the Official Information Act’.

The assessment continues, ‘System performance has lifted significantly over the past twenty months.’  The metrics for this claim are not made clear, but later in the document some ‘Key performance statistics’ presented, and these are analysed below. Fundamentally though, SSC’s claims for improvements in ‘system performance’ appear boil down to:

  • an increase in engagement from agencies across the State service’; and
  • an improvement in the proportion of OIA requests responded to on time.

The meaning of the first claim is unclear, although a subsequent sentence states that there has been ‘a steady increase in participation’ in the OIA Forum (a meeting of officials responsible for managing OIA requests in their agencies) since January 2017.  No OIA Forum meeting appears to have been held so far in 2018: as of 3 September 2018 the last published Forum details are for 23 November 2017. This suggests that either SSC is not good at proactive publication (which is one of the things it is supposed to be advising other agencies on how to do better), or that SSC’s claim for an increase in ‘engagement’ rests on an increase in participation only in 2017.  No data is provided to explain what this increase has been. It might have been an increase from the 40 officials that attended in May 2017, but we don’t know, because attendance numbers have not been released for any meeting except those for May 2017 – and that was in response to an OIA request.

The SSC’s claim of an increase in ‘engagement’ as a contribution to open government certainly should not be taken to mean that agencies have been increasing their engagement with requesters.  If that were the case it would be reasonable to expect some quantitative information to be provided about the number of times agencies contacted requesters to fulfil their duties under section 13 of the OIA to provide assistance where a request is unclear.  No such quantitative data is provided, and is not reported (and possibly not collected) by the SSC’s statistics on OIA requests.[2]

So how did the government do in relation to the second of SSC’s claims – improving the timeliness of responses?

SSC’s end of second year report notes that the statistics on OIA requests that it has published since January 2017 cover the 110 agencies that make up the State Services.  It claims that ‘Chief Executives are using these statistics to drive performance in their agencies.’

The report then states:

Key performance statistics include:

  • The volume of OIA requests recorded for each of the three periods measured has increased. For the most recent half-year period from July to December 2017, agencies received a total of 21,323 requests, a 5% increase since 1 July 2015.
  • Despite the increased workload, agencies have improved the time taken to respond. 95.2% of requests between July and December 2017 were handled within the legislated time limit. This has improved from 87.6% in 2016/17.

Workload

In relation to the first of these statistics – the increase in the number of OIA requests recorded by the agencies – this simply provides a backdrop against which the second set of figures can be contrasted.  An increase in the number of OIA requests recorded by agencies does not, in itself, tell us much, other than the workload may be increasing.[3]  But it does not tell us if the requests became more onerous to respond to, or were more specifically targeted thanks to a greater amount of information being published proactively.  It certainly does not tell us if fewer requests were being refused and more information was being released – surely the key outcome measure relevant to a programme of work the purpose of which, according to the SSC, is to ‘make government information more accessible’.

It is worth noting that the second period in question (July-December 2017) covered the run-up to, and aftermath of, the 2017 General Election.  It might reasonably be expected that General Elections would stimulate an increase in requests, but SSC has not published half yearly statistics for 2015/16 and 2016/17.[4]  This makes it impossible to compare the July-December 2017 figures for requests received against earlier periods.  However, the Ombudsman’s detailed (agency by agency) statistics on OIA complaints received are published in half-yearly periods.[5]  Publication of these only started from July 2016 onwards, but if we compare July-December 2016 to the second half of 2017, we can see that there was a 25% increase in the number of OIA complaints received (up from 538 to 673).

This is not a ringing endorsement for the SSC’s work leading to greater openness, but there are two reasons why we should be cautious about reading too much into these figures. First, unlike the UK,[6] SSC does not collect or publish data on the result of requests (refused/partially refused/released in full), so the increase in complaints might be (a) proportionate to an increase in the number of requests agencies received, and (b) due to increased public awareness of the Ombudsman and a greater willingness to make complaints, following publicity about success in reducing the backlog of old complaints. Second, we also need to keep in mind that only 2.7 percent of OIA requests result in a complaint to the Ombudsman.[7]  In the absence of data on the percentage of requests refused in full or part, it is impossible to know whether this reflects a high level of openness, people giving up on the process by not complaining to the Ombudsman, or some other reason.

With these caveats in mind, and allowing that only one year of comparable detailed data has been released by the Ombudsman and SSC since publication started in January 2017, if we compare the SSC data to the figures found in the Ombudsman’s annual reports we see the following:[8]

Table 1 – OIA request and complaint numbers
Period Number of OIA requests to agencies y/y % change Number of OIA complaints to the Ombudsman y/y % change
1 July 2015 – 30 June 2016

40,273

n/a

1,100

n/a
1 July 2016 – 30 June 2017

42,008

+4.31

1,174

+6.73
Total change from first to last period

+1,735

  +4.31

     +74

  +6.73

Since there has been a greater percentage increase in the number of complaints to the Ombudsman than there has been in the number of requests to agencies for which SSC collates data, this also does not tend to support a claim that SSC has been successful in making government information more accessible.  A further caveat to these figures should be borne in mind though: New Zealand’s second OGP NAP covers the period October 2016 to June 2018, so until the SSC and Ombudsman publish data for the whole of the 2017/18 reporting year, and the details for the first half of 2018, we cannot know whether this situation has changed. However, if the SSC’s work has been successful, the data which is due to be published later this month should show a decrease in the overall number of OIA complaints to the Ombudsman.

Timeliness

Since the SSC do not collect or publish data on the outcomes of OIA requests, it is the second of the statistics quoted by SSC (above) upon which they base their claim for their OGP commitment activity leading to an improvement in agency performance – an increase in the proportion of requests responded to within the legislated time limit.

SSC says its figures show an increase from 87.6% of requests being responded to within the legislated time limit in 2016/17 to 95.2% in the period July-December 2017.

Before accepting this as an indication of success, it is important to understand what the Act itself requires and permits in terms of the time limit for responding to a request, and therefore what lies behind the phrase ‘handled within the legislated time limit’.

Section 15(1) of the OIA requires that agencies make a decision on the request ‘as soon as reasonably practicable, and in any case no later than 20 working days after the day on which the request is received’.  However, this outer time limit of 20 working days may be extended, under section 15A of the OIA, for two administrative reasons, relating to the quantity of information sought or the necessity to consult people in order to make a proper response to the request.[9]

So, although the OIA is clear that the ‘letter and spirit’ of the law (as SSC put it) requires agencies to make and communicate their decisions on requests ‘as soon as reasonably practicable’, the law permits agencies to take up to 20 working days ordinarily, and a longer period if they claim that one of the two administrative grounds specified for extending the time limit applies.

It is also worth noting that the time limits for making and communicating a decision on a request should not be understood to mean that this is when the requester will receive any information the agency decides to disclose.  Although the two events are frequently simultaneous (the agency includes the released information in the letter communicating its decision on the request), the Ombudsmen have interpreted section 28(5) of the OIA to mean that communicating the decision on a request, and providing the information to be released, are two separate and severable actions.  They advise agencies about this in their guidance:

If a decision is made to release information, then the agency must not unduly delay in making it available. In some cases, the agency may be justified in providing the information to the requester at a later date, after the decision is made.

Agencies should note that the distinction between the time requirements for making and communicating a decision on a request, and for making information available, can be important, especially when responding to large requests. Ideally, where a request is granted, the decision and the information will be sent to the requester together. If the information is ready to be released at that stage, not to send it would amount to ‘undue delay’. However, that may not always be possible and sometimes an agency may need extra time to prepare the information for release.[10]

The SSC statistics on the OIA do not report the actual number of working days it took for an agency to respond to an OIA request, nor the average (whether mean, mode or median).  They also do not report the number of occasions on which an agency made use of the extension provisions in section 15A.

Therefore, the SSC statistics cannot help us understand if agencies genuinely improved their performance by responding to OIA requests sooner than before, or whether they have simply started using the extension provisions more than they did before; in both cases we would see an increase in the number of requests ‘handled within the legislated time limit’.

Furthermore, as the statistics also do not report the number of occasions on which the decision on a request was communicated to the requester sooner than the information was provided (i.e. the agency made use of the permitted ability to separate the two actions), we cannot know whether requesters are receiving the information any sooner than before.  It appears some agencies are increasing the frequency with which they separate the two actions, leading to poorer outcomes for requesters: in the case of the Ministry of Social Development, more than a third of its responses adopted this practice, according to research by Mark Hanna.

What do the Ombudsman’s complaint statistics suggest might be occurring? If agencies were responding to requests sooner, and providing the information at the same time, we might expect to see:

  1. A decrease in the number of complaints about a decision not being made ‘as soon as reasonably practicable’;
  2. A decrease in the number of complaints about ‘delay deemed refusals’ (where an agency has not responded within the first 20 working days, or has exceeded the extended time limit it set for itself);
  3. A decrease in the number of complaints about extensions of the time limit to respond; and
  4. A decrease in the number of complaints about an ‘undue delay’ in supplying the information to the requester separately from the decision on the request.

In fact, the statistics from the Ombudsman show the following:

Table 2 – Types of timeliness complaints to the Ombudsman
Period Decision not ASARP % change Delay deemed refusals % change Extensions % change Undue delay in release % change
July-Dec 2016 4 n/a 107 n/a 20 n/a 5 n/a
Jan-June 2017 9 +125 108 +0.93 39 +95 14 +180
July-Dec 2017 9 0 114 +5.56 50 +28.21 11 -21.43
Total change July-Dec 2016 to July-Dec 2017 +5 +125 +7 +6.54 +30 +150 +6 +120

There has been a 125% increase in the number of complaints that agencies have not taken a decision on the request ‘as soon as reasonably practicable’ (ASARP), i.e. before the first 20 working days have elapsed.

There has been a 6.54% increase in the number of complaints about ‘delay deemed refusals’.  This means the requester believes the agency has failed to make a decision and communicate it to the requester either after 20 working days, or – if they have extended the time limit – within the extended time limit.

There has been a 150% increase in the number of complaints to the Ombudsman about agencies’ decisions to extend the time limit for making a decision on a request.

There has also been a 120% increase in the number of complaints that agencies have delayed releasing information after telling the requester they would do so.

It is unlikely that all these complaints will have been upheld by the Ombudsman, particularly as he has changed his approach, and will now ‘discontinue’ his investigations even in cases where the agency admits it breached the time limit. But if we compare the data for ‘complaints received’ to the SSC’s claim for an increase in the proportion of requests responded to within the legislated time limit, it does not tell a story of success for agencies.  Instead, it suggests that they have simply become more adept at using the extension provisions, and in separating the provision of information from communicating the decision to the requester.

Proportionally

What does the data tell us if we factor in the increase in the number of requests received?  Has there been an increase in different kinds of timeliness complaints as a proportion of requests?

Given the data available, we have to compare the whole of the 2016/17 reporting year to the first half of the 2017/18 reporting year.  But since we are looking at relative proportions, this should not be an issue.

The table below sets out the figures for requests and complaints as a proportion of requests for the same period. It then shows the percentage change in different types of timeliness complaints

Table 3 – Changes in timeliness complaints as a proportion of requests
Period # of OIA requests # not ASARP % not ASARP # DDR % DDR # Extensions % Extensions # Delayed release % Delayed release
1 July 2016 – 30 June 2017 42,008 13 0.03 215 0.51 59 0.14 19 0.05
1 July 2017 – 31 December 2017 21,232 9 0.04 114 0.54 50 0.24 11 0.05
% change     +33.33   +5.88   +71.43   0

Conclusions

Although we should bear in mind that we are only comparing two periods and the absolute number of complaints of some types is small, there do seem to be some conclusions we can draw.

First, in spite of SSC’s claims for an increase in the percentage of decisions being made and communicated within the legislated time limit, the Ombudsman has seen a 5.88% increase in the number of ‘delay deemed refusal’ complaints, and a 33.33% increase in the number of complaints about decisions not being made ‘as soon as reasonably practicable’.

Second, there has been a 71.43% increase in the number of complaints about agencies extending the time limit for responding to a request.

Therefore, while agencies have increased the proportion of requests dealt with inside the legislatively permitted time limit (from 87.6% to 95.2%) it is questionable whether this has resulted in people receiving responses quicker. It may just be that agencies have become more adept at using the extension provision of the OIA.

Whether these extensions of the time limits have been justified is another matter, which requires review of the Ombudsman’s published statistics on the outcomes of complaints (made more difficult by the decision to record even agreed delays as ‘discontinued’).

Further data and analysis of OIA delay issues can be found in Mark Hanna’s well-researched post on the timeliness of agencies’ OIA responses, and their use of extension provisions.

Solutions

How might changes in practice or to the Official Information Act improve things?

Changes in practice are likely to arise from the availability of better information about processing of requests.  At the moment the period from the time a request is received by an agency to the time it communicates its decision to the requester is almost a black hole – the only information we have is whether the agency sought to clarify the request within the first seven working days, transferred it to another agency within the first ten working days, or extended the period for making its decision (or transferring the request) within the first twenty working days. We have no published data on the time it takes an agency to:

  • Log a request in its management system
  • Allocate the request to a team or specific official that knows about the subject matter of the request
  • Decide how it is going to interpret the request, or seek clarification from the requester
  • Start searching for the requested information within the agency’s record keeping and information management systems
  • Collate the information and start considering whether any (and if so, which) withholding grounds or other provisions might provide good reason to refuse to disclose some or all of the information
  • Decide whether anyone within or outside the agency needs to be consulted before a decision can be made
  • When the consultation begins and ends
  • When they seek the advice of the agency’s legal advisers on application of any withholding or refusal grounds
  • When they start producing the copies of the information to send to the requester
  • When the draft response is sent to the authorised decision maker to be signed out
  • When the approved decision is communicated to the requester

In Not a game of hide and seek, the former Chief Ombudsman made a number of recommendations to agencies about collecting data to enable better informed management of systems and processes.  The government said in its OGP commitment to improve OIA practices that it would ‘Develop a suite of consistent measures about OIA performance’. The OIA statistics currently published do not provide detail on these processing steps. However, the good news is that the SSC guidance to agencies on OIA statistics does include a section on statistics for performance monitoring, including the following statement:[11]

What follows is a discussion of a wide range of statistics an agency could collect regarding their OIA system. It is a starting point to encourage each agency to:

  • reflect upon its OIA handling as a system: its characteristics and behaviour as well as performance;
  • consider the requesters’ experience of that system;
  • extend the range of OIA statistics monitored by the agency beyond those related to compliance with the Act and those reported centrally by SSC.

With these factors in mind, agencies are encouraged to determine which statistics will be of most benefit for them to collect and monitor.

This ‘encouragement’ from the SSC is welcome.  However, at the moment we do not know if any agencies are planning to follow this advice.  Interested readers may want to make OIA requests to find out.  As the ‘owners’ of improvements in agencies’ OIA practices, we might hope that SSC will start to publish information about the uptake of their own advice by agencies.  We can also hope that the Ombudsman’s continuing programme of reviews of agencies’ OIA practices will shed light on this issue.  But before then, one of the key ways in which to drive collection of this data by agencies is for the Ombudsman to require agencies to provide him with it whenever he receives a complaint about an OIA response.  Some of this information is likely to be sought in the case of ‘delay deemed refusal’ complaints already, to support the Ombudsman’s approach to delay complaints.[12]  But making this a systematic set of information that is required by the Ombudsman of agencies in relation to all OIA investigations will help to incentivise agencies to implement the data collection recommended by the SSC.  Agencies (or even the Ombudsman) might consider this onerous or disproportionate, but they need to bear in mind that the OIA exists to serve the public, not them, and that if they invest in systems and processes to collect and publish this data, the work to collect it in individual cases will be much reduced.

These changes to administrative and management practice should however be bolstered by amendments to the OIA itself.  The Act should be amended to require agencies to capture specified processing data (of the kind listed above and in SSC’s guidance). In addition, the amendments suggested by the New Zealand Council for Civil Liberties (NZCCL) in its recent paper on improving the OIA, should be considered:

  1. Limit the maximum time for any extension to 20 working days, and require the extension notice to specify what work is required to justify the extension [i.e. who needs to be consulted, or why the volume of information requested is proving difficult to search for or collate].
  2. Reduce the time limit for an agency to notify the requester that an extension will be made from 20 working days to ‘as soon as possible and no later than 5 working days after the day on which the request was received’.
  3. Amend the OIA to require that if a decision to release information is given to a requester, the information must be provided at the same time, not at a later date.
  4. Where any information is withheld under section 18(d) because it is about to be published, this refusal ground is only available when the information will be published within four weeks of the decision on the OIA request.
  5. Impose a per-day financial penalty on agencies for delays in response beyond these limits.

Requiring agencies to include in their annual reports how much they had to pay in fines for late responses would assist Parliament, the media and the public to hold them to account.  The fines could be paid to the requester, or into a dedicated fund for investigative journalism managed by a body like New Zealand on Air.  They could even be paid to Archives New Zealand to fund its work of auditing agencies information management systems – another under-examined aspect of the operation of the OIA that would bear further scrutiny.

Finally though, a word of caution.  While this piece began by noting the problems caused by delays in responding to requests for information, we also need consider the consequences of concentrating on the timeliness of responses as opposed to the quality of them.  The current focus on the speed of agencies’ responses (and Ombudsman investigations) risks incentivising making quick decisions, rather than correct decisions.  If you’re an agency that knows it will be ‘named and shamed’ for the timeliness of its OIA responses, are you going to concentrate on the correct application of withholding grounds and the public interest test, or on getting any decision, however likely it is to be rejected by the requester or an Ombudsman, out of the door on time?


Footnotes
[1]    Commitment 2 year end report: March – June 2018, accessed from http://www.ogp.org.nz/assets/Uploads/ogp-2337733.pdf on 1 August 2018

[2]    SSC’s statistics on agencies’ processing of OIA requests can be downloaded from: http://ssc.govt.nz/official-information-statistics

[3]    Indeed, it may only tell us that agencies have improved the recording of the requests they have received following criticisms made in Not a game of hide and seek.

[4]   In addition, analysis of the figures from Ombudsman Annual Reports between 2001/2 and 2016/17 suggests little correlation between the occurrence of a general election and the number of OIA complaints received. (Increased number of complaints in 2002/3 and 2011/12, but decreases in 2005/6, 2008/9 and 2014/15.)

[5]    The Ombudsman’s OIA complaint statistics can be downloaded from http://www.ombudsman.parliament.nz/resources-and-publications/oia-complaints-data

[6]    https://www.gov.uk/government/collections/government-foi-statistics

[7]    However, there has been an increase from 2.73% to 2.79%.

[8]    The Ombudsman’s annual reports can be downloaded from http://www.ombudsman.parliament.nz/resources-and-publications/corporate-documents/annual-reports

[9]   Section 15A(1) defines the two possible grounds for extending the time limit as:

  • the request is for a large quantity of official information or necessitates a search through a large quantity of information and meeting the original time limit would unreasonably interfere with the operations of the department or the Minister of the Crown or the organisation; or
  • consultations necessary to make a decision on the request are such that a proper response to the request cannot reasonably be made within the original time limit.

[10]   The OIA for Ministers and agencies, Office of the Ombudsman, Wellington, June 2016. Accessed on 3 August 2018 from http://www.ombudsman.parliament.nz/system/paperclip/document_files/document_files/2457/original/the_oia_for_agencies.pdf?1516146865

[11]   Selection and Reporting of Official Information Act Statistics, State Services Commission, accessed on 4/9/18 from https://ssc.govt.nz/sites/all/files/Selection-Reporting-of-OIA-Statistics-v2.pdf

[12]   The Ombudsman’s approach to delay complaints, Office of the Ombudsman, June 2017, accessed on 4/9/18 from http://www.ombudsman.parliament.nz/ckeditor_assets/attachments/494/ombudsmen_s_approach_to_delay_complaints.pdf

Submission to the Independent Commission on Freedom of Information

The Independent Commission on Freedom of Information, established by the UK Government to review the Freedom of Information Act 2000, issued a call for evidence in October 2015.

A large number of the submissions it received in November 2015 were published by the Commission in early December. However, in spite of a note from the Commission stating that “The Secretariat intends to update this page regularly”, no further submissions have been published (as of today’s date, 4 February 2016).

This is somewhat concerning, considering that the Chairman of the Commission, Lord Burns, said at the time that the Commission’s intention was “to report as soon as possible after [the oral evidence] sessions” it held on 20 and 25 January.

The Commission’s failure to publish more of the submissions received is probably due to the fact that the Secretariat is massively overworked in its task, given that about 30,000 submissions were received. Unfortunately though, the lack of publication of other submissions might also invite the inference that some of the (as yet) unpublished evidence might be unhelpful to the beliefs expressed by the Commissioners in their call for evidence; were it published, it might even make it harder for the Commission to make recommendations that would (further) restrict access to policy advice and reduce the usability of the Act.

So, in case it is useful to others working to preserve or extend the Act, I am making my submission to the Commission available here. Although it is stated in the introduction to the submission that the views expressed are entirely my own and in no way represent those of my employer, I reiterate that here.

Hello world

This site is intended to provide a location for me to post ideas about the openness of government (or lack of it), and how this might be improved.

It is predicated on the belief that, while a freedom of information law is a critical step towards open government, the mix of drivers required to facilitate a truly participative and more accountable style of governing means that FOI on its own it is unlikely to produce the desired shift towards openness, and therefore unlikely to produce all the benefits sought.

It is likely to consider topics including the design of freedom of information regimes, evaluation of the operation of these regimes, transparency and its difference from open government, and access to (and re-use of) data held by government agencies.

The frequency of posts is likely to be erratic, and dependent on the time available to the author to sit down and write something worth reading.