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Should agencies be punished for breaching the OIA?

By Steven | March 20, 2009

Stephen Franks makes an interesting comment in response to my post below, where I argued that the Department of Corrections breached the Official Information Act. Should agencies be punished for wilful breaches?  (There are no sanctions for breach of the OIA, except criticism from the Ombudsmen). Are we becoming increasingly disdainful of laws that can’t or won’t be properly enforced?

Taking the second question first: I agree with Stephen that there are laws that seem to work by not working. Another example is some of the possession offences in our censorship legislation. After a decision in 1997, for instance, it was an offence to be in possession of a particular edition of New Truth and TV Extra, which ended up being banned for some advertisements it contained. But nobody got prosecuted for having a copy in a pile in the garage.

Still, I don’t think the OIA is one of those laws. My research (and Nicola White’s book Free and Frank: Making the Official Information Act 1982 Work Better) showed that it works well most of the time, and that it’s had a useful effect in improving the quality of advice officials are providing (and probably making sure that the edgier stuff is never written down).

We also both concluded that most breaches of the OIA aren’t really wilful: they’re based on a misunderstanding of the OIA or the pressure of competing priorities for officials’ time and resources.

Still, there are plainly occasions in which agencies or Ministers deliberately flout the law to avoid releasing embarrassing information. They stonewall, even after complaints are made to the Ombudsmen. They adopt ridiculously wide interpretations of the withholding provisions. They don’t conduct a good-faith balance of the public interest that may be served by releasing information. They impose obstructive charges to deter requests. Should there be punishment for this?

There’s a good case for it, I think. Where the Ombudsmen find that agencies have been unjustifiably obstructive, the agency could be forced to reimburse the Ombudsmen’s office for its investigation time, say at the same rate that agencies can charge requesters to retrieve the information. (Is this just shuffling money from one government agency to another? Perhaps, but most are concerned enough about their budgets that this may provide some disincentive).

Even more effective, though, would be prompt and public denunciation by the Ombudsmen. The media would be happy to print it. Along with that, I think that the Ombudsmen should write to any agency that is spinning out the process unjustifiably, give them a deadline, and say that if no response is received they will automatically uphold the complaint and order the release of the information (or at least determine the complaint in the absence of the department’s response).

I gather some Australian FOI regimes have criminal penalties for obstructive behaviour. I’d be interested in how those have worked out…

Topics: Official Information Act | 40 Comments »

40 Responses to “Should agencies be punished for breaching the OIA?”

  1. IdiotSavant Says:
    March 20th, 2009 at 1:03 pm

    One suggestion I’ve seen is that any delay past the stutory timeframes should result in the request automatically being accepted (though the Ombudsmen would need to enforce this). But that would simply shift the problem to “creative” refusals.

  2. Graeme Edgeler Says:
    March 20th, 2009 at 2:00 pm

    One suggestion I’ve seen is that any delay past the stutory timeframes should result in the request automatically being accepted

    This could not work.

    Dear IRD, please give me all the information you hold on Steven Price.

    More than 20 working days? Oh well – he probably doesn’t have anything to hide anyway…

  3. ross Says:
    March 21st, 2009 at 7:40 pm

    I agree with you and think government agencies that flout the law should be punished.

    Some time ago I asked the Police for personal information they held about me. Despite reminding them of my request, I didn’t receive any information until 6 months after I had made the request. The Police then advised the Privacy Commissioner that they were not aware of my request, even though I received confirmation from the Police’s privacy officer that she had recieved my request and would be actioning it soon! In other words, they lied.

  4. OIA enforcement « New Zealand Official Information Blog Says:
    March 24th, 2009 at 5:07 pm

    […] an agency refuses or delays repeated requests for information under the OIA Stephen Price has a post up on enforcing the OIA, preceded by the example of the Department of […]

  5. D.Banisar Says:
    March 25th, 2009 at 4:17 am

    In the US, there have been (a surprising large number of) cases at the state level in Florida where sanctions, sometimes even criminal ones, have been imposed on officials who fail to follow the state open government law. The Brechner Center has a database of cases here:
    http://brechner.org/db_prosecutions.asp

    I think there have been some cases in Texas also. I am not aware of a single case at the federal level where officials have been sanctioned but requesters can get attorney’s fees which can be substantial as they are based on the experience of the attorney (often a staff member in an NGO) rather than their salary. My old org in Washington used to get quite a bit of money back from the Dept of Justice and FBI when they refused to give us docs and the judge ruled in our favour. I don’t think it was much of a deterrent tho.

    Another interesting model is in India where officials can have their salaries docked by the Information Commissions for failing to follow the Right to Information Act. From the various news stories I’ve seen, it appears to be pretty common in a number of states there. I’m not so sure that would work in a jurisdiction where there is a well established system and other types of strong procedural protections in law but might be useful in places where a new law needs to be established and rule of law is weak.

    D

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