Category: OIA

Advocating for ‘culture change’: the Ombudsman endorses strengthening the OIA

Analysis OIA 1 Comment

The Ombudsman issued a report today, ‘Reflections on the Official Information Act’. The message stressed in his media release about the report was that the OIA “is fundamentally sound”, and that “The real issues are not with the law. They centre on ‘culture’”.

I’m going to unpack this a bit in this post, which isn’t attempting to be a comprehensive analysis of the Ombudsman’s report. Links to the report and other documents are at the end of the post.

On page 41, the Ombudsman examines ‘The role of legislative change’. He says:

“It is tempting to seek solutions to problems — both real and perceived — through legislative change … However, calling for legislative change is also a very convenient way of masking the real problem as I see it—by blaming the tool rather than the worker using it.”

However, the Ombudsman goes on to say:

“As I stated in my submission to the Ministry of Justice review process in 2019, I believe there are some enhancements to the OIA that would be beneficial and help to further achieve the purpose of making official information progressively more available. In addition I believe there is merit in:

  • considering extending the good faith protection for officials in section 48 of the Act to the proactive release of information, and
  • amending section 18(h) to clarify that it provides good reason to refuse all requests that are manifestly unreasonable or contrary to the purposes of the Act.”

So, the Ombudsman says the extent of his recommendations for changes to the Official Information Act are his 2019 submission to the Ministry of Justice consultation on whether there should be a review of the OIA, and these two amendments mentioned on pages 41-42 of today’s report.

But what did the Ombudsman recommend in 2019?

First: a proactive release obligation.

In 2019, the Ombudsman told the Ministry of Justice that:

“Most modern FOI regimes include a mandate and requirement for agencies to disseminate information about their functions and activities on a routine and proactive basis, even in the absence of a specific request. The Law Commission recommended a duty on agencies to take all reasonably practicable steps to proactively make official information publicly available, taking into account matters such as the type of information held by the agency and the public interest in it, the agency’s resources, and any relevant government policy … The Commission considered that leaving proactive release to government policy, rather than mandating it in legislation, would be a ‘missed opportunity’.”

Obligations in the OIA on agencies to proactively publish information would be a significant step forward, and strengthen people’s rights if they also include an ability to complain that information has not been published as required.

✅ Legislative change needed

Second: agencies should have OIA officers.

The Ombudsman also told the MOJ:

“The appointment of dedicated ‘information officers’, responsible for ensuring compliance with the OIA would also help.”

An Australian example and a parallel provision for Privacy Officers in New Zealand’s Privacy Act are cited.

✅ Legislative change needed

Third: collecting and publishing data on OIA performance.

The Ombudsman is very keen on this, stating, “In my view, uniform collection and reporting of data on OIA requests is likely to have the single biggest impact on improving agency performance.” We can be sceptical about this claim, but as the Ombudsman also pointed out:

“The Law Commission recommended a new statutory provision stating that regulations may be made specifying which statistics must be kept by agencies.”

✅ Legislative change needed

Fourth: statutory oversight office – AKA the Information Authority reborn.

The Ombudsman said in 2019 that, “there is a definite need for greater oversight, coordination and leadership, across both central and local government sectors, in relation to matters other than the investigation of complaints.”

The Ombudsman says the Law Commission’s 2012 review of the OIA “recommended the establishment of a statutory office or office holder responsible for policy advice, review, promotion of best practice, statistical oversight, oversight of training for officials, oversight of guidance for requesters, and preparation of an annual report.”

The Ombudsman concludes:

“Accordingly, to be effective at both central and local government levels, it would be worth considering an oversight office or officeholder that is established and authorised to act by law.”

✅ Legislative change needed

Fifth: extending Ombudsman jurisdiction so they can look at OIA practices in all agencies (and by inference ministers too).

The Ombudsman’s powers to do ‘practice investigations’ of agencies’ OIA practices rely on their Ombudsmen Act powers to conduct ‘own motion’ or self-initiated investigations. The NZ Police are outside the Ombudsmen Act jurisdiction, as are government Ministers, the Independent Police Conduct Authority and some others. The Ombudsman said:

“It would assist to ensure overall scrutiny and accountability of agencies’ official information practices if all agencies subject to the OIA or LGOIMA were made subject to the OA, but only for the purposes of review of their official information practices.”

✅ Legislative change needed

Sixth: measures to preserve the primacy of the OIA

The Ombudsman wrote in 2019 – and it remains true today – “One of the greatest threats to the OIA is the (sometimes unintended) impact of other legislation.”

He goes on to provide an example, about the interaction between the OIA and the Inquiries Act 2013. Section 15(1)(a) of the Inquiries Act permits the making of orders forbidding publication of evidence or submissions presented to an inquiry. Any matters subject to a section 15(1)(a) order are then excluded from the definition of ‘official information’.

“In a recent case, a section 15(1)(a) order was made in respect of advice from the State Services Commission to the Ministers of State Services and Police on the appointment of a Deputy Police Commissioner. The order remains in effect for 50 years. This information was ‘official information’, as departmental advice to Ministers ought to be, but then ceased to be so, for a period of 50 years. It could no longer be requested under the OIA, and release would have constituted an offence under the Inquiries Act.19 In this instance, the OIA was significantly undermined.”

Both in today’s report and in his 2019 submission, the Ombudsman is unhappy about government agencies developing legislation that impacts on the operation of the OIA – for example by stating that certain information falls outside the scope of the OIA. The Ombudsman says that he would like a “stronger inducement to consult my Office when legislation could impact directly or indirectly on the OIA.”

The Ombudsman also said in 2019 that

“I would also support a change to the OIA that underlines its primacy.”

He cites two Australian provisions in their freedom of information laws to achieve this:

  • The Queensland Right to Information Act 2009 says ‘this Act overrides the provisions of other Acts prohibiting the disclosure of information (however described)’. It has an exemption for information the disclosure of which would be prohibited by specified enactments.
  • The New South Wales Government Information (Public Access) Act 2009 says ‘the Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information (whether or not the prohibition is subject to specified qualifications or exceptions), other than a provision of a law listed in Schedule 1 as an overriding secrecy law’.

✅ Legislative change needed

Seventh: making certain conduct unlawful under the OIA

In a series of examples, the Ombudsman highlighted provisions in Australian FOI laws that create offences for:

  • Making a decision contrary to the Act;
  • Giving a direction to act contrary to the Act;
  • Failing to identify information;
  • Improperly influencing the exercise of functions under the Act;
  • Destroying, concealing or altering records to prevent disclosure; and
  • Providing false or misleading information to the regulator.

Implicitly noting that culture change can come from law change, the Ombudsman said:

“I note that the introduction of similar provisions in New Zealand would send a strong signal that people cannot wilfully interfere with the lawful operation of the OIA, with impunity.”

✅ Legislative change needed

Eighth: remove the eligibility requirement

Noting that there is no eligibility requirement in New Zealand’s Local Government Official Information and Meetings Act, nor in the FOI laws of the UK, Ireland, the USA and Australia, the Ombudsman said:

“The Law Commission recommended removing the eligibility requirement in the OIA, noting it is hard to enforce in any event because of the ability to make requests by proxy. My sense is that it is open to misuse by creating an unnecessary hoop that requesters have to jump through, and it should go.”

✅ Legislative change needed

Ninth: providing more, not less, secrecy for the Ombudsman’s office

In 2012 the Law Commission agreed with then Ombudsman that their office should be subject to the OIA for information that wasn’t about investigations. Mr Boshier has not endorsed this in any publication that I have seen, but instead in 2019 recommended to the MOJ that more of his office’s communications with government agencies to be exempted from the scope of the OIA.

The Ombudsman wrote that he wants to move “correspondence and communications exchanged during preliminary enquiries in relation to a complaint, or where formal resolution of a systemic issue was initiated” outside the OIA.

✅ Legislative change needed

What can we conclude?

In his report today, and in his 2019 submission to the MOJ, the Ombudsman effectively called for at least eleven changes to the OIA. This excludes other things mentioned in his report today, like making agencies explain to requesters how they considered the public interest in release. This also will not happen without a change to the law.

It seems that, contrary to his suggestion that those who call for changes to the OIA are like bad workmen who blame their tools, the Ombudsman in fact also wants to improve the tool for the public that he says is “a fundamental part of New Zealand’s democratic and constitutional framework”.

Given the scope of the legislative changes the Ombudsman has recommended, it would also imply that — contrary to the Ombudsman’s repeated claim that the OIA is “fundamentally sound” — the OIA is legislation that needs substantial strengthening. And this is before we’ve got on to things other people, like me, want to see, such as a public interest override for section 6 withholding grounds.

Altogether, the Ombudsman’s own report and submissions to the MOJ’s 2019 consultation do rather counteract the claim in his media release that “The real issues are not with the law. They centre on ‘culture’ and that involves trust, behaviour and leadership. Bad behaviour undermines the OIA. The Act’s not the problem—it’s the attitude that needs to change.”

The Ombudsman does comment in his report on the adversarial nature of the relationship between agencies and requesters. But seems to not grasp that this because of a fundamentally political issue: control over access to information is power, and weakening of this power will be resisted by those who have it.

That’s why reports pleading for culture change won’t work, and why strengthening the OIA and its enforcement is needed. We need a culture that incentivises compliance, as well as one that incentivises publication. Both such cultures only come from legal constraints on political power.

This is implicitly recognised in the dozen or more recommendations for amendment of the OIA and Ombudsmen Act that the outgoing Ombudsman has made, even if the dots aren’t joined in his report and media release.

It might be thought that by highlighting in today’s report only two amendments, both of which would strengthen the position of agencies and ministers, that the Ombudsman is seeking to dissuade the current government from the idea that changes are need to ‘reduce the burden’ the OIA places on departments. But this would do the outgoing Ombudsman a disservice, suggesting that he would play political games rather than dealing straightforwardly with the public.

Work remains to be done to help MPs to understand the need for reform, and that at time when democracy is under severe pressure in other countries, New Zealand’s democracy would best be defended by strengthening the OIA.

Ministry of Justice supports review of the Official Information Act

OGP OIA No Comments
Excerpt of the September 2019 advice to the Minister of Justice

Almost 18 months after the Ministry of Justice provided its advice to the Minister of Justice on whether there should be a review of the Official Information Act, the advice has finally been made available. So too has the Ministry’s summary of the submissions it received.

Neither document has been proactively published by the Ministry of Justice, but have been disclosed in response to an Official Information Act request made by Nikki Macdonald of Stuff.

I’m still analysing the documents, but I have uploaded them here so others can see them, which will inform discussion of the Ministry’s advice and analysis, and the current Minister’s decision not to proceed with the recommended review. There’s a lot to dig in to, both good and bad.

  • 22 Feb 2019 – Aide memoire to Minister of Justice on ‘targeted engagement’ (public consultation in fact) on the merits of a review of the Official Information Act

If you would like to read the submissions to the Ministry of Justice, and its notes of interviews with selected experts, these are available from the 3 August 2020 reply from the Ministry to my OIA request, on the FYI.org.nz website.

Why we need a full and independent review of the OIA

FOI OGP OIA Submissions No Comments

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.

© Andrew Ecclestone 2026

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