Key shows 'disregard for the law' over the OIA, Chief Ombudsman says
Prime Minister John Key’s attitude to the Official Information Act is “cavalier” and shows “a disregard for the law”, says Chief Ombudsman Dame Beverley Wakem — although she admits she hasn’t spoken to him about it.
Dame Beverley says she does not think the OIA has become more politicised, but she acknowledges the growing influence of political advisers and says it’s “naïve” to think those controlling the release of information wouldn’t consider its impact on government.
She reveals she intends to introduce new set of publicly audited annual standards covering OIA releases that government agencies can benchmark themselves against.
She isn't aware of 3D producer Eugene Bingham’s complaint about release of information by police into crime statistics. A police job sheet, withheld for two years, revealed then-deputy commissioner Mike Bush said “to not respond to the Official Information Act request”. The Ombudsman says she “regrets” Mr Bingham’s complaint has been with her office for a year without resolution and will look into it.
Asked about concerns that the release of information is being delayed by government agencies, she says delay complaints “don’t form the bulk of my work” and “a lot of the fault” lies with media going on a “fishing expedition” with their requests.
Caseloads in her office are 35 per person, down from 50-60 but above the international norm of 25 cases at a time, she says.
"We’re only human. We do the best we can with the resources that we have”, Dame Beverley says, adding her office is improving response times and doesn’t need more money.
She doesn't need more powers to sanction government agencies, she says; “moral suasion” still enough to “focus the mind” of public servants.
RAW DATA: The Nation transcript: Lisa Owen interviews Chief Ombudsman Dame Beverley Wakem
Watch the interview here
Lisa Owen: It was Abraham Lincoln who said “let the people know the facts and the country will be safe”, yet last year the Ombudsman’s Office was concerned enough that people weren’t getting the facts that it launched a review of the Official Information Act, a review that’s almost done. Now, under the Act, you and I can request information from government agencies as soon as possible. They have to respond in no more than 20 working days, yet often that legal requirement is not met. We’ve had controversy around Dirty Politics and releases to Cameron Slater, and Prime Minister John Key added to concerns when he admitted that sometimes his office waits 20 days to release information when it’s in his political interests. So when I spoke to Chief Ombudsman Beverley Wakem, I asked her if the Prime Minister’s actions were acceptable and indicative of what the review found.
Beverley Wakem: It’s not acceptable, and it isn’t indicative of what we’re finding. I mean, we haven’t… If people are expecting this report to come out, name, shame and blame and hang somebody from the yardarm at midday, it’s not going to do that. I specifically said right at the start, what we’re doing here is a health check on the central government agencies, compliance with the OIA provisions, identifying where there are gaps and working with the agencies to shore up those gaps and help them in their response. I don’t think it has become politicised, but I think there is that inherent tension. You’ve got now, for some time now, but certainly not so much in my day, political advisors in the ministers’ offices. And somebody once wrote a book called ‘The Rise of the Unelected’ about these people. And I’ve yet to talk to them, but I’m planning to, because their role is, really, the preservation of the minister’s reputation, and that’s got nothing to do with the OIA. That’s not a withholding provision that you might embarrass the minister by releasing something, and release, anyway, at the end of the day, is the prerogative of the chief executive, having first, of course, as the Act – I think it’s section 15.5 – envisages consultation with the minister. So that is an area, if you’ve got a political advisor, not accountable to anybody but the minister… and one or two executives did say, ‘Well, who are they accountable to?’
I want to ask you—I want to talk about that a bit more, Dame Beverley, but before we do, if it’s unacceptable what the Prime Minister has said, have you had a word to him about that?
I haven’t. I didn’t hear what he had to say at the time. I have had discussions on and off with his chief of staff. I haven’t specifically indicated that, but, I mean, it was an off-the-cuff remark; it was ill-advised in my view and didn’t set the tone that I would like to see from leadership at the highest level to—
But it’s more than that, isn’t it? Because that’s a disregard for the law.
It’s more than that. It’s a disregard for the law.
Cavalier and a disregard for the law.
So do you need to have a word with him, then, directly?
Well, I think in the outfall from the report, we’ll be having words with a few people, I suspect.
Including the Prime Minister?
Well, if I have to, I will, yes.
All right. Now, in terms of these advisors, critics would argue that that level of consultation with a minister’s office leaves the door open for political interference or the perception of political interference.
Well, it could do if you’ve got a very strong minister and a novice CEO, but CEOs have to man and woman up and have the kind of relationship of trust and integrity that I talked about before with their minister where their voices are heard and their advice is taken. And if we find that not to be the case, then we jump on it.
But are they doing that? Are they standing up to ministers? Because the thing is often the perception is that when someone decides to release information or not, that they’re considering whether this is good or bad information for the government of the day, the impact of that information.
Well, it’s naïve to think that they’d operate in any other way, really, with respect in terms of what they’d think about it. But that’s not the issue. The issue is…
But that’s not the law, is it, Dame Beverley?
That’s what I’m saying, Lisa, if you’d let me finish. What I’m saying is they have to operate within the law. An embarrassment for the government or the minister is not a withholding provision under the law, and if there are inordinate delays, then people can come to us, and, of course, we will follow that up. A lengthy delay is deemed by us to be a refusal, and we are finding that. And the last time we had a blitz on that, we got an immediate improvement in the response rates. And I have to say that there are, as I said before, some legitimate reasons why there might be a delay, just so everybody understands that. But I have to say that I have not got in this inquiry so far concrete evidence of that sort of behaviour. There are robust debates. They have to take place between, I ‘m sure, the minister and his advisors and the chief executives. But at the end of the day, the law is the law.
You say no concrete evidence, but are you getting the impression…? Because delay is a way of killing a story, delay is a way of neutralising information. So while you might not be getting concrete evidence of this, do you get the feeling that delays are being used in that way?
Well, all of those delayed deemed refusals pass over my desk, and they don’t form the bulk of my work is all I can say to that. So, you know, if people are trying to be expedient in the way you’ve suggested, it’s not too long before I get a formal complaint that I investigate and make a ruling on and either recommend release or otherwise.
But a lot of journalists or people seeking the information might have given up by then. It’s such an arduous process in some ways.
Well, you know, a lot of the fault, I might say, lies with the way in which the requests are posed. Oftentimes the media will go on a fishing expedition, and they’ll ask for a request that’s yay miles wide. Now, the Danks Committee never envisaged that government would not be able to govern or department would be brought to its knees by the width and breadth of these requests. So there is a responsibility also on the part of the requester to manage and to focus what it is they really want to know. You know, there’s no use asking for 30,000 documents or whatever it is, you know, everything that walked, flew and run for the last year.
I would like to take some time to just explain an example – one of the most interesting ones I think I’ve seen in recent times – which is a request from a 3D producer, Eugene Bingham, asking for information about serious allegations that South Auckland police were doctoring burglary statistics. Now, the police delayed him for about two years before they responded to him, and then a police job sheet surfaced, and I’ve got the job sheet actually here, and in this, an inspector has written down instructions that he says he received from the then deputy commissioner, who’s Mike Bush, who’s now the top cop. In this job sheet, that person states that he was told to let the request sit, and then he goes on to say that, ‘The direction to me was to not respond to the Official Information Act request.’ Let it sit. Not respond. That’s a really serious allegation, isn’t it?
Well, it is a serious allegation. I wasn’t aware of that. I haven’t had that particular document.
Well, that has been with your office, I think, for just about a year. A complaint was laid with your office about that, and it’s been with your office for about a year. And there’s been no outcome. Isn’t that part of the problem?
Well, it is part of the problem, and we’ve spoken about our need for more resources. We have now been given the funding for more resources, and the response times now, the numbers are going in the right direction. So we should see, and we are seeing, a significant improvement in turnaround times. But I regret that. It is not right, and it is part of the problem. But I’ll certainly take that up and look at that one when I get back to the office.
Because in that sense, that relates to a person who’s now in a very powerful position. I should say that the commissioner, Mike Bush, denies giving that advice to his staffer, but it relates to a person who is very high up in the police force – the top cop. Shouldn’t that get immediate attention?
Well, we have a priority system, and it’s in the queue. But everybody… everybody who comes to the office, their complaint is urgent, necessary, must be done in the next five minutes. We’re only human. We do the best we can with the resources that we have. We’ve gotten better resources now, and the times are improving. But I’ll certainly, if that’s as urgent as you say it is, go back and have a look.
Do you need more resources, though? You said you have had some assistance, but do you need more still?
Well, in an ideal world it would be wonderful if we could get the caseload for each investigator down to an international norm, which is 25 cases at each time. We have 35 cases at each time, and that’s come down from about 50 to 60 cases for each person each time, which is, you know, a hell of a load, really. But however, we are getting there. We are getting there. I don’t think we need more resources, but we are looking in very many ways, and part of what I’ve done over the last several years is re-engineer workflow and so on to streamline the processes inside the place, but we can always learn, and we can always do better. No question about that.
Does your office need more powers, like powers to punish, because… I mean, I’ve got a couple of OIAs here. This one is one that was sent to the police; again, they failed to log the request, and the response back was, ‘Humblest apologies. That’s my bad.’ So that’s their excuse or response. Another one from the Corrections Department saying that they’re having an unprecedented volume of requests, so they’re citing workload as a reason, which I don’t think is actually a reason in the Act. But the thing is what’s the worst that can happen to them in terms of not obeying their obligations? What’s the worst? There are no sanctions, are there?
No. Well, the final… I mean, the sanction is in fact a report publicly, which we’ve done in our annual report for some of these cases or to make a special report to the Prime Minister and lay it on the floor of the House, as it were. And, I mean, nothing focuses the mind quite so much as doing something like that, and we have done that in the past. And that’s not the nature of the Ombudsman process – that you actually fine people. Some offices do around the world, but we are in the tradition that doesn’t, and my experience over the years, my predecessor’s as well, is that the moral suasion that the office still commands means that when we make a firm recommendation and we have the possibility of making a report to the house, that that is enough to focus the mind and get people to have another look.
Dame Beverley, I know you’re not a fan of league tables, but I understand you might be interested in introducing some kind of, is it, standards?
Yes, coming out of this, we’re hoping that we might develop a list of compliance requirements and good practice standards than an agency can benchmark themselves against in the future and also use as leverage for funding and resources for themselves, because they’ve all been scraped back too. They are trying to do the work of six men with two – six people with two.
Would they be audited publicly and be available?
So a league table by a different name, then?
Well, I don’t like the idea of a… it’s just the idea. It will give people an idea and confidence that there is movement, that something is being done and that performance is improving, and performance against the standards is improving.
All right, thank you so much for joining us this morning, Dame Beverley Wakem. We look forward to your final report.
Thank you so much.