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Wikileaks: the big question

By Steven | December 12, 2010

In all of the controversy about Wikileaks, one central question seems to remain unresolved: how should we pronounce “Assange”? Is it “an” as in “dance” or “blancmange” or “flange”? [Update: these sites suggest that the first is correct].

The main lesson of the Wikileaks saga for me is that we should be skeptical of government assertions that the revelation of confidential material will lead to the sky falling. We hear it all the time. It was the refrain of the US government during the Pentagon papers saga, the British government during the Spycatcher case, our own government during the Choudhary case. Fear and doom arguments are routinely invoked as reasons for non-release of information under the Official Information Act. As far as I can tell, it’s almost never true. Government is congenitally prone to exaggerate the dangers of information getting out. Often the biggest harm is embarrassment.

Topics: Breach of confidence, General, Official Information Act | 7 Comments »

7 Responses to “Wikileaks: the big question”

  1. metanarratives Says:
    December 12th, 2010 at 4:19 pm

    “Often the biggest harm is embarrassment.”

    I would qualify it – often the biggest harm is fear of embarrassment.

    In my experience even documents that the government withholds (citing a solid ground) tend to be fairly innocentius when viewed – especially when the section 6 ground is relied upon.

    And sometimes it’s not fear – sometimes it’s a sense of invasion – how would you feel if someone you had no knowledge about put in an OIA request to receive copies of all emails received and sent from your staff university email account in the last 3 weeks? University staff are subject to the OIA. Or the request, getting around personal privacy, was shaped beyond a specific individual (and also asked you to apply section 17): all emails sent/received within the law school, on the university staff email system, in the last week.

    Even mentioning the OIA to some agencies that don’t routinely receive requests and release information may encounter fury and want of OIA compliance. So what I am also saying is that there is I think perhaps sometimes the focus is too much on the big guys (ministers, big department, the police) when talking about OIA compliance. In my experience big departments relative to smaller agencies deal with OIA requests very well – and I don’t think it’s necessarily an issue of resourcing. It’s to do with something else. Power being more spread out in big departments, not typically solely vested an individual who is able calls the shots.

  2. Steven Says:
    December 12th, 2010 at 4:55 pm

    A lot of your comments are borne out in my research on the OIA (in the toolbar on the left). I certainly agree that it’s often the smaller agencies – or at least, the ones that receive the fewest OIA requests – that create the problems. That’s partly because they don’t know what the rules are, and partly because they can’t believe they might apply to things like drafts and emails. (Memo to those officials: they do).

    But that doesn’t mean that all the big departments do well. You mention the police. In my experience, they are the worst national level agency in terms of their performance in complying with OIA requests.

  3. IdiotSavant Says:
    December 13th, 2010 at 12:15 am

    But that doesn’t mean that all the big departments do well. You mention the police. In my experience, they are the worst national level agency in terms of their performance in complying with OIA requests.

    I agree. And we don’t even get to quantify how crap they are because they don’t (yet) keep proper records.

  4. metanarratives Says:
    December 15th, 2010 at 6:11 am

    The OIA is complex when it comes to the police. If your OIA relates to particular case, the request is dealt with by the officer responsible for the case – what you encounter is the same identified typically with smaller agencies: a lack of knowledge about the rules.

    Secondly, the legislation provides an array of grounds easily deployable to defeat a request by the police – sections 6(c), 6 (d), 9(2)(a), 9(2)(ba), 9(2)(c), and often decisions show little or no engagement with the public interest that favours release – or they simply say there are no public interest reasons. Often grounds, especially by the police, are deployed with a lack of sophistication resulting seemingly from a cursory view of the Act. I think this is just not a problem with police OIA practice, but is also a problem with the legislation and the Ombudsman.

    Now, the Ombudsman. Rush of blood to the head, send it to the Ombudsman! First, takes a very long time – a very lot of time (over a year often). Secondly, police head office often is unwilling to depart from the view of the officer – not good for front line morale if head office routinely undermines the officer. This is a problem throughout the police (constable independence, regional independence, bottom up culture). Thirdly, in my experience, high deference is paid to concerns that relate to law enforcement by the Ombudsman. Often the views of the police though stated in the strongest terms are speculative, have weak empirical grounding, have little relationship or are so generalised that they have no direct relation to the particular case in hand and though this may seem like a contradiction often they are often hard to refute. Chicken Little.

    What annoys people immensely with regard to the police is the inconsistency. They are only too willing to release some information but are completely stubborn and put on this whole show of sincerity about the release of similar information. With the police it is important not just to send off an OIA by email or post but to build some relationship and rapport with the officer before asking – show you don’t have horns. The early decision making is so important when dealing with the police.

    Steven, can you think an instance the Ombudsman has overruled an agency (on the public interest ground) and ordered the release of information has made news? I struggle. There was a change of view within the Department of Internal Affairs about the release of the information about ministerial expenses – requests have sought to itemised information for years, and the Ombudsman said that infringement on personal privacy does not outweigh the public interest ground – even when the extend of UK expense sandal was unfolding Ombudsman sustained this view.

  5. Steven Says:
    December 15th, 2010 at 11:37 am

    That’s an uncommonly thoughtful post. Again, it reflects pretty much what I found in my research, and what I’ve heard and experienced with OIA requests I know about.

    It’s fairly common for the Ombudsmen to ultimately order or negotiate the release of further material (it happens in nearly 60% of reviews). Of course, by the time the Ombudsmen’s investigation is complete, the news agenda may have passed on so that the agency doesn’t care any more, or doesn’t have any live reasons to withhold. My impression is that most of those reviews relate to improperly applied withholding grounds rather than public-interest balance grounds. When the public interest ground is considered, I suspect it’s more usual for the Ombudsmen to order the release of a summary of some sorts which to some extent treads around the agency’s concerns, but still provides some information to the requester.

    A public interest review that made news? Hmmm. Did the Treasury’s student loan costing involve a public interest ground? I think it was mostly about the policy withholding grounds. I’d guess there are some such cases, but none spring to mind. Then again, it’s not that common for any Ombudsmen’s override to make news.

  6. metanarratives Says:
    December 15th, 2010 at 8:25 pm

    I struggle to think of requests for news-worthy information first refused by the agency and then go the Ombudsman and the Ombudsman orders release. I wish all decisions of the ombudsman were published or available, the case notes compendium I don’t think provides sufficient insight into the Ombudsman’s work.

    In regards to the police and Ombudsman requesting a “summary” be released – what this typically is access to the caption sheet. The information in these documents is selective and merely provides the police’s own interpretation/account of the police file. Police decide what they wish to record and what they wish to omit. Often in these documents the police account or interpretation of the evidence is put at its highest.

    Another issue, from what I have seen most attention to OIA gameplaying focuses on specific provisions – the time provision, due particularity provision, needlessly transferring requesting. What I find more interesting is attempts to obfuscate that don’t rely on the Act. Some I have seen:

    * Stating the request was not received even when the request was faxed and requester has a fax receipt. Stating the request would have been received, don’t know who is dealing with it currently.

    * Attempt to put the requester off going through with a request – “I don’t think you will get this”, “this is really the most sensitive information we hold”, “do you realise what you are asking a person to do”

    * Ask the requester why they want the information, what’s their interest? Asking whether the information will be published.

    * Stating the information isn’t really all that interesting or helpful. More assistance could be provided by attending an in-person briefing.

    * Stating the department is busy, persons are on leave.

    Some of these may be genuine, reflect what is happening in the department – but what I always remember is government can move at frightening speed when it wants to do something. Laila Harré after departing parliament said the best things about being a cabinet minister was the most extraordinary access to information – if you wanted, you got it. Think Paula Bennett – able to access personal individual welfare files. If she wasn’t so dumb enough to release the information she would have got away with it.

  7. Steven Says:
    December 16th, 2010 at 9:53 am

    Here’s the list of stalling tactics I compiled:
    • transferring requests between agencies;
    • seeking clarification of the request, then treating this as a new request with a fresh 20 working day time limit;
    • insisting that they are “working on it” or “conducting consultations”;
    • claiming that the person processing the request is away or sick or that it is “on the minister’s desk” awaiting final approval;
    • waiting for weeks and then refusing the request;
    • losing or simply ignoring requests;
    • dragging the chain when the Ombudsmen become involved; and
    • brazenly not releasing information immediately even after agreeing to do so following an Ombudsmen’s investigation.

    I agree that it would be better if Ombudsmen’s casenotes were published more regularly (and I wish they’d be a bit more specific: many of the useful details are edited out).

    As for the summary, I don’t mean the police’s summary of facts, I mean the Ombudsmen’s power to negotiate/order a release of a summary of particular documents requested, often with a view to meeting the requester’s needs but not compromising valid interests in protecting the information. That’s how they sometimes conduct the public interest balance. (If you’re saying that Ombudsmen’s reviews of police’s OIA refusals tend to be solved by simply ordering the release of the police’s summary of facts, that’s interesting.)

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