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Act, the Local Government Official Information and Meetings Act, and the State Sector Act (which will at some point by superseded by the Public Service Bill).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 201 9, 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:

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;
Practice improvements cannot overcome the obstacles to achieving desired outcomes that are present in the current law;
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;
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;
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;
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
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.

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.

#	Commitment	Why should we include it?
1	Continue 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.
2	To 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.
3	A 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.
4	To 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.
5	Legislation 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].
6	Bring 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.
7	Streaming 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.
8	Hansard for select committee oral submissions/testimony	Unlike 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.

Ministry of Justice supports review of the Official Information Act

Why we need a full and independent review of the OIA

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

Introduction

Comments and suggestions

Openness and Official Information Act timeliness

Submission to the Independent Commission on Freedom of Information

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