Join the Campaign for Open Government
One of the worst things about the last National government was its lack of transparency. This was especially true when it came to the Official Information Act. There are high hopes that the new coalition government will not only operate in a much more transparent way but also reform how the Official Information Act works.
How transparent will the new government be?
There are, however, already some worrying signs about how open the new government is going to be. Today, Newsroom’s Sam Sachdeva reports that “The government is refusing to release a secret document with directives for new ministers, despite Deputy Prime Minister Winston Peters promising it would be made public” – see: Kiwis left in dark over ministers' directives.
This goes back to the coalition announcement, which was accompanied by the release of an eight-page coalition agreement between Labour and New Zealand First. At the time, Mr Peters mentioned they had also created a 38-page document, which he described as containing “directives to ministers with accountability and media strategies to ensure that the coalition works.” However, it seems the Prime Minister’s Office is refusing to release it, based on the idea that the document isn’t covered by the Official Information Act (OIA).
And in today’s Dominion Post, Stacey Kirk reports “Labour is getting off to a poor start on transparency,” because ministers “have so far refused to release much detail, if any, about their first actions in office. In a 100-day programme, where major reform is being pushed through at break-neck speed, that is cause for concern” – see: Labour promised transparency in Government, but they seem to be buckling on that early.
The bulk of the problem is the Prime Minister’s Office is refusing to allow government departments to release their official reports. Ms Kirk explains: “Labour is also yet to release what's known as the ‘Briefings to Incoming Ministers’ – or BIMs. They are the documents prepared by the experts and officials, delivered to ministers in their first week to give them a crash course on the portfolio they've just been handed – in some cases rendering them responsible overnight for the spending of public funds totalling billions.”
Government ministers have had copies of the reports for more than a month, and the suspicion is the government is delaying the release of these reports, and intends to dump them on the public all the same day, making it harder for the public and media to deal with all the information at once.
Join the Campaign for Open Government
Today I’ve written a column for the Newsroom website, calling for a coalition of activists, journalists, academics, and the public, to join together to encourage the new government to fix the OIA system – see: It's time to open up the Closed Government Act.
I argue that now is the perfect time to push for reform, because new governments tend to be keener to improve democracy than older ones: “The window of opportunity on OIA reform is particularly narrow because, by its very nature, the act is generally much more useful to opposition parties than governments. Even the most democratically minded MPs, who come into government with a fresh memory of how damaging OIA abuse is to democracy, quickly find themselves less keen on a properly-observed OIA and more comfortable with the advantages that such abuse now affords them.”
There has been a good response to this column. No Right Turn has also blogged to express interest – see: Time to stand up for open government. And a number of institutions and individuals have made contact to indicate their interest in being involved – including Victoria University’s Institute for Governance and Policy Studies, NZ Herald journalist David Fisher, activist Mark Hanna, TVNZ journalist Luke Appleby, and political commentator Matthew Hooton.
On Friday, Matthew Hooton wrote a column in NBR on OIA reform in which he highlighted the fact that Clare Curran – the new minister with responsibility for open government – has expressed a willingness to reform the OIA regime, and saying she needs support. This is urgent, he argues, because without reform, history suggests this government could end up being worse than the last one – see: Curran needs support on OIA reform (paywalled).
Here’s Hooton’s main point: “In the absence of an Upper House, it is one of the few checks New Zealanders have on our overpowerful executive and, once ensconced in power, most ministers soon come to see it as an intolerable irritant. While the Muldoon regime is said to have administered the OIA well, the Lange government did so only adequately, the Bolger-Shipley government reluctantly, the Clark government disgracefully and the Key-English government abused it shamelessly. Ms Ardern cannot feel smug: The trendline over 35 years suggests her government will soon be the worst of them all.”
Ms Curran’s statements on OIA reform were made recently in an interview with the Otago Daily Times’ Eileen Goodwin – see: Breaking new ground and ready to serve. According to this, Ms Curran “wants to improve the Official Information Act and provide much better protection for whistleblowers.” But it also reports that “She is not promising to overhaul the Official Information Act but said she would dust off a 2012 Law Commission review whose findings were not picked up by the previous government.”
Ms Curran promises the new government will be more open than the last: “Openness and transparency and doing things differently is important, so we've got to practise what we preach and actually do it.” But Ms Goodwin questions how enthusiastic Curran will be to fix the problems: “Critics have said the OIA no longer functions properly and is widely manipulated to control information for political purposes. Ms Curran was somewhat half-hearted when asked if she agreed with that, saying oversight of the act had improved under new Chief Ombudsman Judge Peter Boshier.”
In reply, Curran has tweeted: “Not halfhearted. Am seriously looking at reform. It will be done properly.”
Mr Hooton made some similar observations recently about how improvements in the OIA have already occurred under the new Chief Ombudsman. Commenting just before the election about the Ombudsman’s Office forcing Mfat to finally release documents relating to the Saudi sheep scandal, Mr Hooton declared Judge Peter Boshier and the Office are “doing a far superior job to his predecessor; there is genuine independence now … I congratulate them for putting pressure on the Ministry of Foreign Affairs to finally come clean” – see Nick Grant’s NBR article, Mfat reply proves McCully 'should have been hounded out' of office (paywalled).
The article reports “Mr Hooton expresses the hope that, with the appointment of an ombudsman of demonstrable backbone, the next government to be sworn in may have ‘higher standards than the current government – although I wouldn’t hold your breath on that’.” Mr Hooton also argues the OIA had been “made a complete mockery of by the Key government.” And in terms of the Saudi sheep scandal information that was held back from the public for two years, Mr Hooton says: “the Beehive has leaned upon the Ministry of Foreign Affairs to prevent the truth from coming out – because there are all sorts of senior National Party people involved in this matter… So they did the best they could to delay the issuing of this statement from the Ministry of Foreign Affairs because they did not want it known before the election.”
Clearly, all governments face a difficult choice on issues like freedom of information. In making progressive reforms, they may actually make life more difficult for themselves as politicians. So, the new coalition government faces that stark choice – whether to leave the OIA system, as it might help it stay in power or make reforms because it actually wants to change politics for the better.
The experts on the need for this government to reform
A number of OIA experts have recently published good pieces on the need for reform.
Straight after the formation of the new government, David Fisher wrote an opinion piece in the Herald celebrating the OIA, and pleading with new ministers to adopt the spirit of the legislation in the way they will govern: “on this day, as a new government is sworn in, it's worth remembering that the OIA is one of the brightest lights in our democracy. It's a pilot light that guides the public through the arcane workings of government, taking our place in decision-making, questioning and seeking accountability. As the Washington Post put on its masthead this year, ‘democracy dies in darkness’.” – see: Our new Government needs to live by the spirit of the Official Information Act.
For Mr Fisher, the OIA is not just vital for encouraging accountability, but also public participation in politics: “If nothing else, it explains clearly that we, the people, have a role in our government beyond casting a vote every three years. The legislation actually says it exists so that all of us can be more involved in our democracy. It says this is so we can encourage accountability in those who are elected and in those public servants hired to carry out the government's work.”
Newsroom’s Shane Cowlishaw has written an article explaining why people should be concerned about OIA reform, because “It may sound boring but – trust me here – the OIA is profoundly important,” and “Without the OIA countless important stories would have likely remained buried or unseen” – see: The OIA is broken, can it be fixed?
He also draws attention to the related problem of governments insisting public servants co-ordinate their responses to OIA requests: “Under the Jim Bolger/Jenny Shipley Government of the 1990s, the ‘no surprises’ policy was introduced, aimed at making ministers aware when information was about to be released that they may be questioned on. In principle, that’s fair enough. Ministers should know what is happening in their areas. But over the decades the essence of this policy has warped and morphed into something corrosive. It has led to a country today where public servants quake in their boots whenever a journalist calls without first going through the communications team, no matter how innocuous the question.”
Former prime minister and constitutional specialist Sir Geoffrey Palmer has also written plenty about the need for reform. A few months ago he wrote a damning blog post, Toothless Official Information Act needs overhaul and constitutional backing. This was based on his research, along with constitutional lawyer Andrew Butler, in producing their book, A Constitution for Aotearoa New Zealand. You can read Chapter 9: Safeguards online, which deals with the OIA among other things.
Here’s their key point: “The conclusion to be reached after more than 30 years of the law in action is that the present policy settings are inadequate and do not serve the interests of transparency in government as well as they should. Change is needed and the constitution requires that the Ombudsmen no longer be the sole resolvers of disputes with regard to the release of official information. The time has come for an independent Information Authority to be established, one with the power to make binding decisions upon questions relating to the release or withholding of official information.”
OIA expert Mark Hanna has just published an incredibly useful Official Information Act Guide, which is mandatory reading for anyone who uses the OIA or wants to start. He has also just written a blog post about some of the ways government departments are thwarting people’s access to information through less than useful responses to requests – see: OIA Accessibility.
And today, on the slightly different topic of parliamentary questions being asked of the new government, Graeme Edgeler blogs about some suggested reforms he thinks Ms Curran could take up – see: Questions, but no answers, with thanks to David Simon for opening my eyes.
Finally, just before the election, the anti-corruption organisation Transparency International New Zealand carried out a survey of political parties on their attitude and policies on corruption and ways to prevent it. For the parties’ answers, including a question on how they would strengthen the Official Information Act, see: Transparency questionnaire: 2017 general election.