Education Ministry inquiry the latest sign NZ’s Official Information Act isn’t working

A leaked video of apparent attempts at the Education Ministry to circumvent the Official Information Act (OIA) has advocates for open and transparent government worried – but possibly not surprised.

The chief ombudsman has now launched a formal inquiry into the matter, based on the video showing an official telling an online meeting to avoid putting information shared with the education minister’s office in writing because it would be “OIA-able”, or discoverable by the public.

On the face of it, people are right to be concerned. But this is also nothing new.

Journalists have complained for decades about officials and ministers subverting the terms of the Official Information Act 1982. In particular, they have struggled with the provision giving ministers the right to withhold the advice they get from officials.

Just last month, Transparency International New Zealand noted a tendency among officials to “prioritise protecting ministers from embarrassment over transparency”.

It has now produced a green paper on the long-running issues that it says have been harming New Zealand’s democracy: chronic delays, a defensive culture within parts of the public service, ministers interfering in officials’ decisions, and the Office of the Ombudsman having insufficient power to remedy things.

The paper also notes the privatisation of some public services has moved public information into the private realm.

Demand for transparency

Twice, in 1997 and 2012, the New Zealand Law Commission recommended an overhaul of the OIA. Both times, the government failed to act.

Last year, however, the Ministry of Justice commissioned a report into the cost of meeting freedom-of-information expectations, which was estimated to be NZ$175-250 million annually.

A second, more recent, report put the cost down to growing numbers of information requests, non-standardised systems across government, and a lack of “capacity and capability” across its agencies.

It recommended the government review the scope and coverage of the OIA, its own freedom-of-information processes and practices, the grounds for refusing to release information, and the government roles and leadership involved.

If a review goes ahead, it would be the first proper revisiting of the law since it was first passed. That happened only after a long period of public concern over the extent to which the 1975–84 National government was prepared to go to preserve its secrets.

By then, New Zealand’s involvement in the Vietnam War and then-Prime Minister Robert Muldoon’s proposals for “Think Big” energy and industrial projects had met with considerable public opposition. Demand for a transparency law surged.

After intense negotiations in parliament, the OIA was passed by Muldoon’s own government. He wrongly called it a “nine-day wonder”.

In fact, the law has functioned since then in part because it was designed by a committee of officials (not by self-interested politicians) who understood how information flows within government systems.

But it has also not worked for a number of reasons, prominent among them the Cabinet Manual’s “no surprises” rule, under which ministers are to be kept informed by senior public servants about sensitive or controversial information being released.

This creates downward pressure on officials to not release sensitive information and is widely acknowledged as harmful to the principle of freedom of information.

Better government

New Zealand’s OIA is one of more than 140 such “access to information” frameworks around the world, according to the United Nations Educational, Scientific and Cultural Organization (UNESCO).

Even some brutally authoritarian states have them, so their existence doesn’t always translate into transparency or public accountability. But any real democracy needs a freedom-of-information regime, which generally sets out to achieve three things.

The first is to guarantee a citizen access to any information their government might hold about them. This is an affirmation of the rights of the individual in the face of the colossal power of the state.

The second is to provide access to information the government holds to anyone who asks for it, to ensure we have a transparent and accountable government.

The news media is an important beneficiary of this, of course, but so, too, are individuals and the many civil society organisations that rightly seek accountability from the powerful.

The third reason is to increase public knowledge of the workings of government, and allow people to be involved in it in different ways. A democratic government with strong public participation is a better government.

There are, of course, exceptions, particularly in section six of the OIA, which lists “conclusive” reasons a government might still keep something secret: anything likely to compromise national security, hurt the economy badly, undermine law and order or endanger anyone.

There are also “non-conclusive” reasons. But ministers and officials relying on these lesser powers must be able to show the reasons to withhold the relevant information override the public interest in releasing it.

The issue now is not so much that, after 44 years, officials don’t understand the OIA, but that many have learned how to work around it. The current inquiry into alleged behaviours at the Ministry of Education may yet be a turning point.