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Three cheers for the OIA and one for the government

By Steven | February 22, 2011

I’m not sure whether the government’s document dump about the BMWs came as a result of an Official Information Act request. (If it wasn’t, then someone should put in an OIA request just in case the government has decided to hold anything back. That’s what the Labour government did in its Corngate document release).

Either way, though, the documents released are plainly embarrassing. Many governments around the world would not have released them. We can thank our official information disclosure regime for a political culture where this sort of transparency is expected. Perhaps we should also thank this government for taking its obligations seriously enough to provide a very quick disclosure (though we might be forgiven for suspecting that the government figured it was better to front-foot the issue and take the hit now rather than string it out and risk being ordered to reveal information by the Ombudsmen shortly before the election).

One other thought: it has been reported that the Solicitor-General has advised that some information cannot be released because of confidentiality promises in the BMW contract. I do hope that those drawing up and interpreting that contract, and those charged with giving advice about what we can be told about it, have borne in mind Jeffries J’s words in Wyatt C0 (NZ) Ltd v Queenstown Lakes District Council [1991] 2 NZLR 180, 191:

There cannot be allowed to develop in this country a kind of commercial Alsatia beyond the reach of a statute. Confidentiality is not an absolute concept admitting of no exceptions… It is an implied term of any contract between individuals that the promises of the contract will be subject to statutory obligations. At all times the applicant should have been aware of the provisions of the [Local Government Official Information and Meetings] Act and in particular s7, which effectively excludes contracts on confidentiality preventing release of information.

Topics: Official Information Act | 2 Comments »

2 Responses to “Three cheers for the OIA and one for the government”

  1. metanarratives Says:
    February 22nd, 2011 at 5:50 pm

    If an OIA request was made it would be interesting to know what was behind our neutral public servants auctioning the OIA request so quickly? Was advice given if an OIA request comes in deal with it fast? Maybe it is what you suggest: get it over and done with – news cycles quickly move, memories fades. The Department of Internal Affairs may just good at dealing with OIAs – built up knowledge about proper behaviour from their days dealing with the Local Government legislation and tardy local bodies in the early days. Perhaps this is standard practice at the Department –when a request for urgency is made it isn’t treated as a declaration of nuclear war.

    When an OIA is deemed politically sensitive game playing can be prone – it depends on the body. It is heartening it didn’t happen here (if indeed it was an OIA request). Why didn’t it happen? I don’t think the reason is because we have great legislation. It is easy to play games with our legislation. Sometimes it seems easier to play game than deal substantively with the request. All kinds of easy tricks could have been deployed in this case – you don’t even have to put much thought to it:

    1) It was multi agency information – transfer the request, carry out consultation with agencies – and not just with the agencies but every single person or body tangentially related as a means to extend the time or the amount of work involved in dealing with the request. Ask BMW in Germany what they think.

    2) Claim the commercial sensitivity ground, subject to an obligation of confidence, negotiations are continuing.

    3) Claim legal privilege with regard to the solicitor general’s advice or the information generally – withhold or redact substantially.

    4) Deploy the “due particularity” trick.

    5) Substantial collation or research is required.

    6) Information already substantially in the public domain.

    7) On 20th working day reply without disclosing information but request reasons for the request or “please provide public interest submissions so we can carefully consider the request.” When received claim the public interest has moved on (even though PI is to be assessed at the time the request is received).

  2. Steven Says:
    February 22nd, 2011 at 6:05 pm

    Yes. Once again, most of these techniques (and others) are discussed in my OIA article on the toolbar.
    We should note that, while these techniques are common, they are not all legal – at least in many of the circumstances where they are used.

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