Hot Topic NBR Focus: GMO
Hot Topic NBR Focus: GMO
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NZ POLITICS DAILY: The Perils of user-pays democracy

Information is the lifeblood of democracy.

Fri, 22 Jan 2016

Information is the lifeblood of democracy. Therefore policy changes by government agencies that will restrict access to OIA requests by charging for information, are leading to concerns about the likely reduction in accountability and transparency in public life.

In the lead up to the release next Wednesday of the annual Transparency International global Corruption Perception Index, there have been some concerning allegations of Official Information Act abuse by government agencies. These were sparked last week when Fairfax business journalist Richard Meadows (‏@MeadowsRichard) tweeted: “The @ReserveBankofNZ has squashed my OIA requests with a $651 fee. Sad to see our powerful, unelected technocrats discouraging transparency.”

Sam Sachdeva’s Official Information Act request charges for media in spotlight details the unfolding of events around the request, including Meadows’ subsequent discovery that the charge was due to a significant policy change quietly enacted by the Reserve Bank late last year.

This change appeared to have been carried out in tandem with a review and report by the outgoing Chief Ombudsman, Beverley Wakem, which said “the Official Information Act's charging provisions should apply to everyone who made a request.”

Media appalled by changes
The implications of the Reserve Bank’s new policy were not lost on an appalled media.

“Thanks again, Dame Beverley”, sneered The Dominion Post, already no fan of Wakem (see December’s editorial Chief Ombudsman shows how not to be an information watchdog). 

The newspaper delivered a stinging rebuke to the Reserve Bank, likening them to “a hide-bound banker who knows the price of everything and the value of nothing.”  The Reserve Bank had started a “very bad trend” by deciding to charge for OIA responses, and the closeted way they went about it was unacceptable: “This is not the right way to make or reveal such a momentous decision.” 

Crucially, the editorial pointed out that A tax on official information is a tax on democracy itself, arguing it contravenes the intention of the Act which seeks to make “information available as of right to the country's citizens; it reverses the previous legal assumption that the government's information is secret.”

The Dominion Post makes the point that while a fee of $600 would be a serious barrier for most individuals, the media submit challenging and time-consuming requests in their role as “the people's watchdog over the government” meaning even large media organisations will struggle as the fees add up.

Rather than the media being treated differently to other requesters under the OIA, the newspaper says it “would prefer to urge that government-owned agencies, including large and powerful pillars of the state like the Reserve Bank, should treat the provision of information as a democratic duty. It should therefore regard the cost of giving that information as part of its core business. In other words, its default position should be to give the information free. Only in the most exceptional cases should this rule be breached.”

That’s also the view of Joanna Norris, editor of The Press and chairperson of the NZ Media Freedom Committee – quoted in Sam Sachdeva’s report. Like the Dominion Post, Norris feels charging for information is a “dangerous step”, contrary to the purpose of the act. She believes the attitude around releasing documents is wrong: "They need to stop looking at this as their information, it's not – it's the information held on behalf of all New Zealanders. It's not their information, it's ours."

Gordon Campbell is similarly appalled, saying “There are so many wrong things about this policy that it's hard to know where to start.” He argues that the Reserve Bank has made things difficult “at a time when quality journalism is under financial strain and spin merchants paid for by taxpayers outnumber journalists.” – see: On making the media pay for OIA requests.

The NBR’s political editor Rob Hosking has written about the issue today, saying that the Reserve Bank’s new OIA policy “appears to run counter to the purpose of the law”. He writes his column on the OIA reluctantly, “because I do believe that, generally, journalists problems are not of public interest. But this one is. The fuss over recent weeks about the Reserve Bank charging for official information is just the latest signal from – in this case a remarkably unaccountable body – that it is not going to be bothered with all this pesky accountability stuff.  Once you start charging for official information, you are in effect charging for accountability and for democracy.” -see: The ‘observer effect,’ public information and the media

Bloggers and politicians react
One blogger has fought back against the changes. No Right Turn characterises the changes like this: “The expectation is that charging is going to become a lot more common - or, to put it another way, public information is going to become a lot less available, and Ministers and public servants a lot less accountable. Good for them, but bad for our democracy” – see: An attack on our democracy

His response has been to file OIA requests with “every core government department seeking information for the last financial year on their total number of requests, the number of times they have demanded and been paid OIA charges, and the total amount collected. If they're going to do something like this, then we at least deserve a statistical baseline so we can measure the impact. The responses are due on 15 February, and I'll be tracking them here. Assuming, of course, that they don't try and charge me for it...”

An economist who worked for decades at the Reserve Bank, including as the Head of Financial Markets, has penned a lengthy blog post criticising and examining the new policy – see Michael Reddell’s OIA: changes in RB practice and in law needed. In this he recalls: “I discovered the new policy when the Bank sought hundreds of dollars to provide me copies of some easily accessible, non-contentious, very old minutes of meetings of the Reserve Bank Board.” More recently, he says he was informed by the Bank that his request for information relating to the TPP would cost him $560. 

Reddell argues that his ex-employer has made a “serious misjudgement” with the new policy, but that the Bank has a “generally obstructive approach” to providing public information. This is a concern to him, as “The Reserve Bank is a very powerful organisation, with a great deal of discretionary policy choice left (formally) in the hands of one unelected person.”

Opposition politicians have been outspoken on the policy change. Labour’s Jacinda Ardern warns that if the Reserve Bank’s approach is adopted by other agencies then this would present "a real challenge to open, accountable, transparent government" – see Sam Sachdeva’s Official Information Act request charges for media in spotlight.

Similarly, the Greens’ James Shaw says “If you're charging $600 or $1200 or whatever, that's going to mean pretty much that all the requests are going to dry up” – see Sam Sachdeva’s Charges for official information 'step in wrong direction': James Shaw. Shaw suggests that officials should spend less time on "obfuscating the information", and that "If you didn't spend three-quarters of your time blacking out pages and all of that kind of stuff, it would cost you a lot less to give the information.”

Reserve Bank responds
Geoff Bascand, the Deputy Governor of the Reserve Bank, defended the policy change in a newspaper column on Tuesday – see: Reserve Bank: Charging for official information a 'reasonable' response. Bascand said the policy was “consistent with the Official Information Act” and was a “common, fair and reasonable response” to an increase in OIA requests of almost 300 per cent in the past five years.

He assured the public that “While the policy applies to all OIA requests, in practice we will seek charges when requests are large, complex, or frequent.” He also emphasised the Reserve Bank’s commitment to working with requesters to refine their requests in order to reduce or eliminate charges.

In the case of Richard Meadows’ $651 invoice, Bascand explained that “providing the information requested would take an estimated 8.5 hours of chargeable time (along with additional non-chargeable time).” He notes that Meadows was given several opportunities to refine his request but finally chose to withdraw it.

In the end Bascand reminds readers that while government agencies “and therefore taxpayers and ratepayers” bear the cost of providing responses to OIA requests, “like other public sector agencies, our budget is tightly constrained.”

A reasonable user-pays regime?
While on the face of it Bascand’s points appear reasonable, the current experiences of those making OIA requests make the changes problematic. A central issue is the huge amount of discretion it gives bureaucrats – discretion which some have demonstrated they are willing to use in politically motivated attempts to slow down and frustrate OIA requests.

Critics may be forgiven for thinking that, as the Manawatu Standard’s Matthew Dallas puts it, “the introduction of hefty charges to do so is just another brick in the stonewall” – see: Price-tag on information requests from media a troubling sign. He states that “The act aids The Fourth Estate in the execution of its duty and contributes to an informed public; without which, democracy withers.”

Abuses of the OIA at the hands of an increasingly politicised public service and failings of the OIA and Ombudsman’s office are topics I’ve covered in two recent Political Roundups. In October I wrote about New Zealand’s closed government and in December I looked at The struggle for integrity.

There has been much complaining from government agencies (as well as government ministers) about the cost of fulfilling OIA requests. Individual request costs are often cherry picked to paint requesters as wasteful of public funds. Apart from a few selective figures released there doesn’t seem to be much hard analysis of the total cost. 

As one example, in July last year it was reported that the Police were struggling with an increased OIA workload – see Samantha Olley’s Police: New OIA request every hour. But as No Right Turn pointed out, it is Not as much as it sounds.

Are requests to government agencies an unreasonable burden on the taxpayer or are they are an increasing unfunded cost for government departments on tight budgets? If we knew the total cost then perhaps taxpayers could themselves weigh up the value for money. Are freely available OIA requests less or more value than, say, a sheep farm in the middle of the Saudi Arabian desert?

A $600 OIA request could be frivolous or it could be the best $600 taxpayers ever spent. Exposing just one botched public project or dodgy “partnership” deal can lead to millions of dollars in savings, stopping good money being thrown after bad. Only a few requests will have that payback. But every OIA request that gets withdrawn because the submitter could not afford the government charge has the potential to expose vital information that we never get to see.

Timeliness in the modern news cycle is almost as important as getting the information in the first place. The Reserve Bank policy gives huge scope for delay as requests to refine, quotes for each refined request and decisions on whether to charge or not are pondered over. Everyone is aware of the increasing pressure on journalists’ time these days. What used to be a simple OIA request could be converted into protracted haggling over scope and cost. In the middle of an election campaign that sort of added delay could be crucial.

As with any user charge the impact will not be the same for all. When even large media organisations are concerned about affordability we can be sure that independent journalists, volunteer protest groups, academics and individual citizens are going to struggle even more. Corporate funded lobby groups on the other hand will gain yet another relative advantage on the non-profit sector.

There is a lack of transparency and consistency across the public sector. If OIA charges are now to be made then there should be clear rules on how much and under what circumstances they will be made. The temptation to “think of a number and double it” when faced with a complex and potentially embarrassing request will be greatly reduced.

Policing and reforming the OIA
Of course the former Chief of the Ombudsman’s Office, Beverley Wakem has now retired, and her replacement is promising a revitalised watchdog. Yet so far his statements on charges for OIA requests will lead many to conclude that he could be in a similar mould to his much-criticised predecessor. In today’s feature on Judge Peter Boshier by Marty Sharpe, the new Chief sides with the Reserve Bank over charging for access to information – see: New chief ombudsman promises to be a fearless operator

Boshier is quoted as saying: "I think the Reserve Bank's response is actually very fair. When I looked at it I couldn't fault it. As a statement of principle it was perfectly fair and it's one to which I subscribe”. You can also listen to Lynn Freeman 25-minute interview with the new Chief on RNZ: New Chief Ombudsman Peter Boshier

But perhaps the problem lies with the Act itself. This week law professor Andrew Geddis called for a review of the legislation: "It could well do with a doctor's check-up, if you're talking about health, because I do think it needs a pretty thorough review ... a review with the aim of making changes” – see Eileen Goodwin’s OIA request charges worrying sign.

And of course it is not only the Official Information Act that is relevant, but also the Local Government Official Information and Meetings Act, which relates to local government authorities. In this regard, Chris Morris reports that “The Dunedin City Council has no plans to follow the Reserve Bank's lead and start routinely charging media organisations for official information requests, a senior manager says” – see: Information policy for review.

Finally, inspired by the Reserve Bank’s apparent monetising zeal, The Spinoff have released their Official Information Rate Card 2016, v1.0 – see: Toby Manhire’s The Spinofficial Information Act. At one end of the charging scale, the Spinoff will charge a fee of “1 x packet Squiggle Top biscuits” for the acknowledgement of a pitch from a freelance contributor. The heftiest charges are reserved for “Responding to inquires from public relations practitioners who express an interest in “reaching out”’, topped only by $1200 per quarter hour for “Responding to inquiry from government body for clarification of request under the Official Information Act.”

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NZ POLITICS DAILY: The Perils of user-pays democracy