An expansive body of oversight work into the Official Information Act has revealed government spin doctors and ministerial offices blurring legal lines to better suit their purposes rather than the public.
The Herald has digested the hundreds of pages of inquiries into 12 agencies chosen as a sampling of the entire public sector by the Office of the Ombudsman.
A condensed assessment of those findings is below with those agencies ordered according to the number of actions or recommendations Chief Ombudsman Peter Boshier said they needed to take or accept.
In the reports, Boshier highlighted multiple instances of the law being bent and broken. That's to say, consistent and flagrant illegality on the part of central government agencies.
It is striking that were the Government to break other laws there would be hell to pay. Less so with the OIA, which itself reveals how a blurring of the lines over four decades of the law's existence has watered down the impact of frequent breaches.
"We should view it seriously," Boshier told the Herald. "I do this job to make the act work. Am I succeeding? Not as much as I would like."
The Ready or Not? inquiry is a follow-up to the 2015 report Not a Game of Hide and Seek, which was done by Boshier's predecessor, Dame Beverley Wakem.
It's a better report, providing strict and strong guidance for public agencies from an oversight agency which appears to have great clarity as to its role. Where the 2015 report was more about the vibe, this one is about the letter of the law. By sharply defining legal lines, it unbundled conventions developed around the law.
Those conventions, unsurprisingly, serve to suit those meant to be called to account by the law and not those for whom the law was meant to empower - the public.
The OIA is of our democracy's greatest levellers. The wording of the legislation itself spells out who's in charge and how our democracy works.
It exists, as the law says, to "increase progressively the availability of official information to the people of New Zealand". It does so to "enable their more effective participation in the making and administration of laws and policies" and "to promote the accountability of ministers of the Crown and officials".
And the reason? As the law says - it's to "enhance respect for the law and to promote good government". That's important because if the way is working then that respect and good government follows. And if it's not working, that is what suffers.
Boshier is an officer of Parliament. He's not subject to ministers or government departments. But Wellington is Wellington and politics is everywhere. He's not so injudicious as to fire direct broadsides at government departments or their ministers.
Having said that, there's a lot of no-nonsense language in the reports which bluntly state that these government departments broke not just the OIA law but its close cousin, the Public Records Act.
The teams of spin doctors at those agencies face some of the biggest criticism for the way convention has hijacked the OIA. It has been long lost that journalists - who inquire on behalf of the public - are actually making OIA requests when they contact government department press secretaries for information.
Boshier has reminded those agencies that they must observe those requests as OIA requests. There were complaints it was difficult when dealing with the demands of a 24/7 news cycle. Boshier, in not so many words, pointed out that true fluency with the law through practice would mean compliance was automatically part of conversations.
It's not stated bluntly but Beehive offices are collateral damage throughout the reports. There is a consistent focus on how government departments interact with their ministers over OIA requests. Boshier quite rightly focuses on the days of delay that can take place when agencies provide ministers with courtesy notifications of OIA requests going out.
His report says those courtesy copies of OIA requests should be provided on the same day otherwise "the agency risks breaching its statutory obligation to provide a response to the requester as soon as reasonably practicable".
It's a critical finding because it forces agencies to decide if they need to genuinely consult with ministers or simply let them know. If it is simply letting them know, the "same day" approach reduces the opportunity for Beehive discomfort or displeasure restricting the release of information.
As one Ministry of Education staff member said, the practice seems more like "vetting" and was "one of the biggest hindrances to openness and transparency".
These two points feature throughout the reports into those sample 12 government departments. And take heart, those who love this law, because it's not all bad - there is consistent good practice throughout which shows those in public agencies take it just as seriously as lawmakers intended when it was drafted and passed 40 years ago.
The OIA report card
Ministry of Health: Two recommendations, 35 actions
There was good support from senior leaders in developing a culture of openness and transparency and examples of messaging to staff about the importance of the OIA consistently over several years. However, there was "an inconsistent approach" among some senior leaders which required a clear and unambiguous approach from the chief executive.
There was praise for the amount of information the ministry published proactively, particularly in relation to the Covid-19 pandemic. "The impact of releasing this information on New Zealanders' trust and confidence in Government, at a time it was wielding extraordinary powers, cannot be over-emphasised."
The ministry's media team "acted contrary to law" when not telling journalists why, in OIA terms, information was being refused or that there was a right to appeal to the Ombudsman. There was criticism of the media team's record-keeping in relation to interactions with journalists.
The Chief Ombudsman found an earlier critical review of one part of ministry record-keeping in 2020 now appeared "a microcosm of an agency-wide problem". The ministry was acting contrary to its Public Records Act obligation to store information in an accessible form which could impact on its OIA compliance - a finding to which it objected.
The ministry was encouraged to improve OIA training for staff and was, in response, providing targeted training for subject-matter experts, decision-makers and its communications team.
There was criticism for the ministry giving the Beehive five days to consider OIA responses before they were sent to the requester. It put the ministry "at risk of being routinely in breach of its obligation" to provide decisions "as soon as reasonably practicable". In response, the ministry "has begun to move away from the five-day notice period". One exchange with a minister's office prompted the suggestion the ministry review whether an "FYI" notice of an OIA response was actually a "proxy approval process".
There was also criticism of a sign-out process which could see a response reviewed by up to nine people.
Corrections: Two recommendations, 28 actions
There was criticism Corrections was acting "contrary to law" when its media team did not provide journalists reasons for refusing information or advice they could complain to the Ombudsman. Corrections was also criticised as acting "contrary to law" for failing to keep information stored in an accessible form, with a recommendation it change its approach - including in prisons - to meet its legal obligations under the Public Records Act.
Limited OIA training was provided to staff, as was training similarly limited around information managing and record-keeping systems.
Criticism saw Corrections amend its practice of providing the Beehive advance copies of OIA responses "several days" ahead of the information being sent to requesters under the "no surprises" principle. Corrections has also said it will now consider if the minister needs to see the full request or simply a summary or topic.
There was urging for Corrections to improve reporting to leaders and messaging to staff. Of the 12 agencies, Corrections ranked lowest in staff perception of leaders' perceptions of disclosure through the OIA and openness. Concern was also expressed that 60 per cent of staff said they had never received training in the OIA, or had not in the past four years.
Ministry of Justice: One recommendation, 28 actions
The increasingly open culture was impressive as was messaging encouraging this from chief executive Andrew Kibblewhite, with one staff member quoted saying he was "very open and transparent … a role model".
The ministry's role is key because it has legislative obligations in relation to the OIA. The 2015 report and this one, again, urged the ministry to provide guidance to agencies on what information to put in its Directory of Official Information, which is meant to operate as a road map to information for the public.
It had failed to do so leading to "notable omissions" and a finding that the ministry had "acted unreasonably by failing to fulfil its role as administrator and steward of the OIA" by not providing agencies guidance and failing to assist the public to obtain official information.
Staff criticised record-keeping as relying on "people's knowledge of where stuff is filed" rather than systems with concern expressed about gaps in knowledge when staff leave. There was also concern over important OIA process emails stored in people's individual email boxes, rather than a broadly accessible system. Against the ministry's protests, a finding it had acted "contrary to law" was made.
There was also praise for "excellent initiatives" such as counselling sessions for staff exposed to distressing content surfaced by OIA requests. There was also urging to clarify the time in which OIAs were provided to the Beehive as an "FYI".
NZDF: One recommendation, 27 actions
OIA response timeliness has improved since from 93.4 per cent in 2015/16 to 99.2 per cent as at December 2020. The wider public release of OIA requests on the New Zealand Defence Force website had dropped from 47 in 2017/18 to five in 2019/20.
Staff perceptions of leaders' attitudes to disclosing information through the OIA and openness generally were below average across the 12 agencies surveyed. Senior leadership's messaging to staff was "an area of vulnerability".
There was also "a lack of OIA training" which, once addressed, would "enhance its OIA culture and practices". Training on information management and record-keeping was also necessary. Staff were unclear on how to use NZDF information management systems which made handling OIA requests more complex.
The OIA team also had "limited access" to some protected systems which made it more difficult to comply with requests if staff were "unaware" information existed.
The media team acted contrary to the OIA law and Public Records Act by not providing proper reasons for refusing information, or informing of the right to complain to the Ombudsman, or keeping proper records of interactions with media.
Ministry of Transport: 30 actions
An open culture was identified, with examples of leadership telling staff of the importance of OIA requests. A survey of staff suggested signals from leaders about openness were "generally good".
A high number of staff surveyed had received recent OIA training or refresher training, with the ministry told it "does well" in this area. It was encouraged to introduce formalised training of senior leaders on a regular basis. It was "excellent" 95 per cent of staff said they had received information management and record keeping training in the past two years.
It was recommended the junior staff who were allocated some OIA requests be supported by a broader review process. OIA responses reviewed revealed issues that showed "inconsistent practices" across the ministry. It could be junior staff or the ministry's decentralised model of distributing OIA management across business units which created a vulnerability. Better peer review and training were urged.
Half the OIAs processed went to the minister's office with a five-day "no surprises" buffer before the information was provided to the requester. The ministry was urged to review this and to develop a written agreement which covered interaction with the minister's office on OIAs. The five-day period cut into time for staff to prepare responses.
It also highlighted "concerning" comments from staff in which it was claimed "the minister's office generally seeks to withhold more information than recommended by my agency".
Ministry of Social Development: 26 actions
Responding in 20 working days or fewer has shot up from 76.8 per cent in 2016 to 96.8 per cent in 2020, with more than 1000 requests handled in that latter period. The statistics showing OIA performance were a "standout area of which the ministry should be proud".
Handling of media requests by its media team was "contrary to law" when journalists were not told reasons requests for information were refused or that they could go to the Ombudsman to complain. Likewise, its record keeping of interactions was also contrary to the law because it breached a Public Records Act requirement to keep "full and accurate records".
MSD should review the way it provides OIA responses to ministers under the "no surprises" principle, doing so "at the same time or shortly before" it is sent to the person requesting the information.
Waka Kotahi NZTA: 26 actions
The investigation described Waka Kotahi as having an increasingly open culture, with chief executive Nicole Rosie having an "open leadership style" and valuing transparency. Senior leadership was encouraged to provide regular messaging to staff to support this.
There was no formal training programme for those managing OIA requests or advanced courses for OIA specialists. This was urged. Recording public interest considerations in OIA decision-making was needed, as was recording-keeping of internal deliberations on requests.
About 20 per cent of OIA requests went to the minister's office as an "FYI". It was "concerning" that Waka Kotahi required an email from the minister's office staff stating it had "no comment" before the request was sent to the requester. If it was a genuine "FYI" it would need no response.
The Chief Ombudsman said a five-day buffer period for the minister's office to consider requests should be removed. It contrasted with the law's requirement decisions on OIAs had to be made "as soon as reasonably practicable". It also reduced time for staff to work on requests. A protocol had now been drafted to guide OIA interaction with the minister's office.
While most media requests were answered in full, an instance was found in which the reason for refusal - and right of appeal - was not provided. There was concern there was no evidence of records of conversations between the media team and journalists, which was at odds with the Public Records Act.
Waka Kotahi was commended for its proactive release policy and encouraged to make sure OIA documents on its website were able to be searched.
Customs: 25 actions
Customs maintained a high timeliness response to OIAs, from 99 per cent in 2016 to 99.7 per cent in December 2020, although few responses were published on its website.
The investigation showed Customs' leadership committed to the OIA and a culture of openness. There were opportunities for senior leaders to make messaging on the OIA more visible and explicit.
OIA files reviewed showed "high levels of compliance" with the law, with particular note made of its obligation to assist requesters.
The media team was criticised for not providing reasons for information being refused or a notice of a right of appeal to the Ombudsman. It was also found to have acted "contrary to law" for not keeping "full and accurate records" on media requests.
Gaps were identified in OIA training along with a need to increase staff training around record-keeping and information management. Customs was also urged to streamline its OIA sign-out process as it reduced the time staff had to process requests.
While interactions between Customs and its minister's office appeared appropriate, there was criticism of all OIA responses being provided and that the review period was five days. Customs was told it should provide information at the same time or shortly before it was sent to the requester and that a request or summary would suffice.
Ministry of Foreign Affairs and Trade: 25 actions
The ministry processed 96.4 per cent of OIA requests inside the 20 working day maximum statutory timeframe for six months ending June 2020, a Covid-explained drop from its 99 per cent compliance the half-year prior.
"Excellent" OIA and information management were provided to all new staff and there were "OIA champions" throughout the ministry. There was also OIA guidance material, good OIA reporting to leaders and "best practice" records on OIA decision-making, consultation and administrative steps.
The need for OIA training at senior levels was highlighted to send a message around commitment to meeting the law and also to ensure consistent application across divisions. While nearly all staff received information managing training, there didn't appear to be refresher training or specific training on the Public Records Act.
There was criticism the media team did not provide journalists OIA reasons for refusing information, as required. That was "contrary to law", as was incomplete record keeping of exchanges with journalists which didn't meet the needs of the Public Records Act.
The ministry was urged to develop a protocol around providing OIA releases to ministers on "no surprises" grounds before the information was sent to the person who requested it. It was "clear all parties understood the ministry was the final decision-maker".
Ministry of Education: 16 actions
There was praise for the ministry leadership's "commitment to openness and compliance with the OIA" which included regular communication with staff. Staff spoke of a shift in OIA culture towards proactive release and promoting transparency. The ministry also sent strong messages externally on the OIA.
Response timeliness had gone from 90.9 per cent in 2015/16 to 99.2 per cent as at June 2020.
The ministry's media team was criticised for acting "contrary to law" by not telling journalists why information was not provided or that they could take that refusal to the Ombudsman. There was also a "contrary to law" finding about record-keeping of media team interactions with journalists as out of step with the Public Records Act.
Training on information management and record-keeping was identified as a "vulnerability", with 45 per cent of staff unclear about what was stored and/or where, which could affect OIA compliance.
There were "inconsistencies with best OIA practice" found in a sample of responses examined by reviewers, largely around telling requesters how soon information had to be provided. There was also a need for better detailing around the decision-making process. Both issues had been addressed.
There was issue raised with requests being given to ministers five days ahead of being sent out under the "no surprises" principle. "The ministry should also be mindful that notification of decisions is not about seeking clearance, approval or sign-off from the minister." A protocol had now been developed around this.
ACC: 15 actions
ACC processed OIAs in the 20 working day time period 98 per cent of the time. It was praised for "an increasingly open culture driven largely by its leaders". It also had strong public messaging around a commitment to the OIA and strong reporting of OIA data to senior leaders.
Chief executive Megan Main and senior leaders were urged to "lift staff perception" about the importance of the OIA, openness and transparency.
There was criticism that the accessibility of the media team's OIA record-keeping was "contrary to law". The media team was also urged to respond to requests from journalists in line with the OIA, although reasons were found to be provided when information was refused.
Concern was expressed over ACC allowing ministers a three-day head start with OIA requests before the information was actually sent to the person seeking it.
Public Service Commission: 15 actions
The Chief Ombudsman was "impressed" with the commission's efforts to assist agencies in complying with OIA obligations by holding "well-run" forums on the subject.
Its OIA statistics reporting programme was linked to improved reported timeliness across the public sector. The commission agreed to increase its reporting on OIA compliance with more detailed data, with the inquiry saying that currently used "do not paint the full picture".
The commission's leaders "appear to value transparency" and promote an open culture among staff. It showed numerous examples of fostering the "spirit of the OIA". There was also evidence Public Service Commissioner Peter Hughes championed good OIA performance across the public sector.
However, a survey of staff showed more than half had never received OIA training or had not in the previous four years. It was suggested all staff needed OIA training. About 40 per cent had also not received training, or it had been four years since they received training, on information management and record-keeping systems.
OIA practice included some "excellent" practices, with the suggestion it improve its records of deliberations over what could be released.
