Geof Mortlock argues government transparency and accountability are inadequate, meaning the Official Information Act needs to be strengthened

By Geof Mortlock*

One of the most important laws in New Zealand is the Official Information Act. It is a law that goes to the core of our democracy, and to the transparency and accountability of government.

Since its enactment in 1982, the Official Information Act has provided New Zealanders with the capacity to seek information from ministers and government agencies on wide-ranging matters relating to the exercise of statutory powers, policy formulation, and advice from officials to ministers.

It provides an important mechanism for holding ministers and government agencies to account for their actions (or, in some cases, the lack of actions). Investigative journalism and critical analysis of decision-making has often depended on the ability to obtain information under the Official Information Act. This has been all the more important given the general lack of meaningful transparency by government and its agencies, and the weakness of constitutional checks and balances that have long characterised New Zealand’s system of government.

However, for all its merit, the Official Information Act is failing us in significant ways. The Act is flawed and is enabling ministers and government agencies to delay, minimise or avoid disclosures of official information. Its failings have long been recognised by the many who have made requests under the Act and have been thwarted by uncooperative government agencies. In many cases, the problem lies with government agencies taking far too long to respond to a request – often well beyond the statutory time limits prescribed for in the Act.

More fundamentally, there are many cases of government agencies refusing to release information on one or more of the wide-ranging grounds under the Act, with little in the way of substantive justification. In situations where information has been released, there is often a tendency for government agencies to redact significant parts of documents without giving adequate reasons for the redactions.

The failings in the Official Information Act have been the subject of extensive review by the Law Commission. The Commission released a major report on the Act in June 2012, entitled ‘The Public’s Right to Know’. It identified numerous deficiencies in the Act and made many recommendations to strengthen the law.

Yet the Law Commission’s report has largely sat gathering dust since its release. Neither the National-led government at the time nor the current Labour government actioned the report’s recommendations to any significant degree.

In the case of the current government, the failure to address the many concerns relating to the Official Information Act sits rather uncomfortably with Labour’s stated policy of being a champion of ‘open government’. In reality, the government is only open when it sees a political advantage in being so, and is otherwise all too comfortable hiding behind a shield of opacity. Likewise, officials in many government agencies have no particular fondness for transparency; their incentives are to withhold or make it difficult to obtain information so as to reduce the scope for real accountability.

The Law Commission’s report raises many issues in relation to the Official Information Act and makes a raft of recommendations for changes. From my perspective, the key impediments to the effective operation of the Act can be summarised quite succinctly:

• The grounds in the Act for withholding information are too broadly expressed and provide far too much scope for government agencies and ministers to decline to release information. The grounds for withholding information include such vague matters as:
   
• • “damage seriously the economy of New Zealand by disclosing prematurely decisions to change or continue government economic or financial policies”;
  • “avoid prejudice to the substantial economic interests of New Zealand”;
  • “maintain the constitutional conventions … which protect … the confidentiality of advice tendered by Ministers of the Crown and officials”;
  • “maintain the effective conduct of public affairs through … the free and frank expression of opinions by or between or to Ministers of the Crown or members of an organisation or officers and employees of any public service agency or organisation in the course of their duty, or the protection of such Ministers, members of organisations, officers, and employees from improper pressure or harassment”;

These grounds are so broad that they can be – and often are – used to justify withholding an enormous range of information. They are open to abuse by ministers and officials. The Act empowers this potential for abuse by providing no criteria that must be applied in assessing whether the grounds exist and by not requiring an appointed, independent third party to separately determine whether the grounds legitimately exist to withhold the information. The decision to withhold information rests solely with the ministers or officials in question.

• The Official Information Act does not cover some important organs of the governmental apparatus within its ambit. For example, the Act does not apply to the Office of the Clerk of the House of Representatives, the Parliamentary Service, or the Office of the Speaker. The Independent Police Conduct Authority, which handles complaints in relation to the conduct of the Police, is also outside the ambit of the Act. These bodies, and others that are excluded, should be brought within the scope of the Act so as to strengthen their transparency and accountability.
• The time limit specified in the Act for determining requests for information (20 working days) is too often extended by government agencies without adequate justification – and sometimes even the extended time period is breached.
• There are no penalties for breaches of the Act by government agencies or ministers. Delayed responses or inadequate explanations for the withholding of information go largely unpunished. The Ombudsman lacks any substantive power to enforce the Act, other than to make recommendations that the information being sought under the Act be released.

New Zealanders deserve better than this. We need a statutory framework that provides greater access to official information, requires the information to be provided in a timely manner, and gives the Ombudsmen real power to enforce compliance with the Official Information Act. The grounds for withholding information should be narrowed and subject to assessment criteria. The public agencies currently exempted from the Act should be brought under its ambit. The time limit responding to requests for information should be strictly enforced. Breaches of the Act by ministers and officials should be subject to disclosure. Consideration should be given to imposing fines on ministers and officials for significant breaches of the Act. Ultimately, persistent failure to comply with the Act, including to comply with recommendations from the Ombudsmen, should be grounds for dismissal of the relevant officials.

At a time when government is intruding more and more into the lives of New Zealanders, with an ever-increasing array of laws and regulations, we need much stronger transparency and accountability of the government. We need ‘open government’ in a meaningful and consistent manner, and not only when it suits the government to have it.

*Geof Mortlock, based in Wellington, is an international financial and economic regulatory consultant, with extensive experience in advising governments in many countries on economic and financial sector reform. Geof was recently a guest in an episode of interest.co.nz's Of Interest podcast talking about the government's plans for deposit insurance.