The outgoing Ombudsman Peter Boshier has singled out Health NZ as a “particular concern” when it comes to releasing public information under the Official Information Act (OIA).
Boshier warned that Health NZ’s practice of delaying information releases by sending them to the Beehive to “notify” the Minister ofthe information being released may be “contrary to law”.
He said this operated as a “proxy approval process” in which Health NZ was “seeking confirmation from the Minister’s office before sending OIA responses to requesters”. He added that this was “unreasonable”.
“This is because Health NZ is delaying OIA responses when they spend multiple days in the Minister’s office; and, because it allows the FYI process to function as a proxy approval process,” he said.
The remarks were made in a report released this morning in which Boshier reflected on his nine years as Ombudsman.
“For a relatively new agency, Health NZ is generating an increasing number of complaints, mostly about the time it takes to make a decision, or its refusal to release parts or all of the requested information.
“Health NZ’s record management, especially its inability to retrieve regional records, is an underlying factor,” he said.
He also raised a concern with several agencies’ record-keeping, warning that the practice of agencies keeping poor records to avoid those records being released under the OIA was “wrong”.
“Good record keeping is a legal requirement under the Public Records Act 2005. Official information must be not only retained but be able to be retrieved.
“I have sometimes heard that public officials are pressured to avoid creating records for ‘fear of them being OIA-d’. This is wrong. I believe this is an area of the law that needs strengthening,” he said.
Health Minister Simeon Brown. Photo / Mark Mitchell
Boshier said he had dealt with 14,000 OIA requests and conducted 37 proactive investigations.
He said the main issues with the OIA was not the law, but the “culture”.
“Bad behaviour undermines the OIA. The Act’s not the problem - it’s the attitude that needs to change,” he said.
“For example, I see far too many agencies taking a defensive approach to OIA requests. This attitude can lead to misbehaviour. I believe where problem behaviour exists, even after all the levers provided in the legislation have been applied to their fullest extent, additional incentives and sanctions against offending agencies may be needed.”
Boshier had some criticism for people who use the OIA. He was there was a “small number of requesters” who were using the act “irresponsibly”.
He said these people were “submitting requests that are vexatious, frivolous, or too large”.
“This places a huge burden on responders and frustrates the entire OIA process. Requesters should always be careful that when they make requests, they don’t undermine the very system that allows them to access information.”
Health NZ criticisms
Boshier’s deep dive into Health NZ found that some of the extensions to the deadlines of OIA requests might have been “contrary to law in some instances”.
He argued “there were no lawful grounds for an extension and/or because a decision has not been made as soon as reasonably practicable”.
He said in some cases, OIAs were extended in order to accommodate the agency’s “notification process with its Minister, which sometimes took up to eight days”.
The deep dive also found that there were challenges in the recently merged agency’s handling of OIA requests. These are mostly dealt with centrally, however, in some cases, there is difficulty getting data from different parts of the enormous organisation to the centre to be collated and handed over to the requestor.
“Staff advised me that they find ‘multi-area requests’ to be challenging in terms of OIA timeliness compliance.
“These are requests for information relating to multiple regions where the information is not centrally held.
“I was advised that the challenges in processing requests of this type lay in communicating with all relevant areas to source the information, and in standardising the information collected in order to provide a single, cohesive response to the requester,” Boshier said in the report.
He said the agency’s process of handling multi-area requests “may not align with its current capability” to meet OIA rules around timelines.
Thomas Coughlan is Deputy Political Editor and covers politics from Parliament. He has worked for the Herald since 2021 and has worked in the press gallery since 2018.
