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Act, the Local Government Official Information and Meetings Act, and the State Sector Act (which will at some point by superseded by the Public Service Bill).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

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.