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The Official Information Act: should it be reformed?

By Steven | January 25, 2013

It was the great philosopher T’pau, I think, who said: “Don’t push too far, your dreams are china in your hands.” I sometimes feel that way about our Official Information Act.

It’s easy to dream of improvements. Requesters would like to see an end to game-playing when they make politically sensitive requests. They’d like the deadlines adhered to better. They’d like officials to be a little less ready to invoke withholding grounds whenever there is a mere sliver of justification. They’d like the requirement to balance the reasons for withholding against the public interest in release taken more seriously.

Officials and ministers on the receiving end of requests would like a few more withholding grounds. They’d like requesters to tailor their requests better (and then use the information more accurately!). They would like to be able to more easily reject requests that called for a massive trawl through thousands of files, emails, drafts and memos.

But any reforms have the potential to shatter what is a world-leading official information regime. Too much transparency and important interests such as privacy, commercial confidentiality and legal professional privilege are undermined, and the mechanics of government can be brought to a halt as by the resources consumed responding to requests. Too little, and the law’s laudable aims of promoting accountability, good law-making, public participation and trust are frustrated.

So the Law Commission’s task of reviewing the operation of our official information legislation wasn’t an easy one. It was never going to satisfy everyone. For its part, it says its recommendations pave the way for the law to keep pace with technology and public expectations, while taking advantage of opportunities for improving openness and efficiency. For left-wing blogger NoRightTurn (one of the country’s more astute users of the OIA), the Commission has been used by bureaucrats “to roll back transparency, and reintroduce secrecy and unaccountability for themselves.”

Who’s right? Let me offer a personal scorecard for the Law Commission’s recommendations. There’s a lot to applaud, I think. The Commission’s recommendation that government agencies be required by statute to take all reasonably practicable steps to make official information available is an exciting step forward. It’s in keeping with government policy and with luck might even reduce the burden of dealing with particular requests.

The Commission also puts a lot of emphasis on the development of guidelines. This was also Nicola White’s conclusion in her book Free and Frank: Making the Official Information Act 1982 Work Better. It’s a sensible move. Both officials and requesters will benefit from authoritative guidance, with specific examples and handy rules of thumb drawing from 30 years of experience with the operation of the law. The Commission sees this as filling a lot of gaps: grounds and times for extensions, the public interest test, charging, urgent requests, complex requests, consultation, conditions on requests, proactive release categories, and much more. If someone scrapes together the resources to compile it, and people bother to start using it, it may be the most worthwhile thing to come out of the Commission’s report.

Another big recommendation is the creation of a statutory official information oversight office. This would provide policy advice, keep the law’s operation under review, promote best practice, investigate systemic issues, and oversee training, guidelines and annual reporting. My research found that when things go awry, it’s more often through misunderstanding than game-playing. The re-establishment of such an office (we used to have an Information Authority doing much of this) is in keeping with overseas Information Commissioner offices and can only be a positive thing.The Commission also suggests that the reach of the OIA be made clearer, and widened. At the moment, you sometimes have to wade through three separate pieces of legislation to work out who is subject to it, and there are some silly anomalies. Fix that by putting all the subject agencies into one Schedule, says the Commission. And add the administrative side of court and Parliamentary business, the Ombudsmen and the Auditor General. Too right.

One of the most vexing parts of the existing OIA is the “good government grounds”. These are applied to protect the generation of policy advice and a period of undisturbed deliberation on it. But that’s not what the OIA says. It talks about maintaining “conventions of the constitution”. No-one really knows what that means. The Law Commission has redrafted these grounds so that they are easy to understand and clearly directed at harm to the administration of government. It has also rewritten the commercial sensitivity ground. I suspect the effect is to widen these grounds, which causes me some concern (they now extend to “free and frank information” whatever that might be), but I doubt they will be used to cover anything that the existing grounds aren’t already being stretched to include.

There are plenty of other recommendations to praise, including the development of an accessible user-friendly website for requesters, wider grounds for review by the Ombudsmen, more rigorous rules around urgent requests, clearer rules around transferring requests, and a new power for the Ombudsmen to alert the Chief Archivist to any record-keeping problems that come to light.

Still, I have concerns about some of the Commission’s other recommendations. One is the suggestion that we change the grounds for refusing requests that will be too hard to comply with. At the moment, the agency must show that the requested material “cannot be made available without substantial collation or research”. The Commission recommends this be changed to “substantially and unreasonably divert resources.”

On the one hand, this provision is aimed at a huge problem. Information technology has seen the number of documents in government mushroom. Requests are sometimes extremely wide. You can argue that the new test is more specific and principled – being directed to reasonable uses of resources – and perhaps not enormously different to the old test. All true. But I worry that agencies will readily conclude that particular requests will unreasonably divert their resources, jeopardising the whole transparency regime.

Government lawyers will be interested in the Commission’s recommendation that the legal professional privilege ground be widened. At the moment, it authorises withholding information where necessary to “maintain” legal professional privilege. This recognises that the odd release of legal advice may not itself threaten the edifice of legal professional privilege. Sure enough, legal advice has occasionally been released. The sky has not fallen. But the new test will allow withholding if to release it would merely “breach” legal professional privilege, even if there was no identifiable harm beyond that. But I comfort myself that officials are generally so assiduous in asserting this ground that the change will not make much difference. There is, of course, still the requirement to balance this against the public interest.  Sometimes it’s very much in the public interest for the government’s advice to be released.

I also worry about the suggestion that rules about charging be put in regulations. Yes, this will allow for certainty and consistency. But my research showed that charges were only discussed in 4% of requests. I think this is a great strength of our system. Charges have the potential to deter all but corporate requesters. (Even the media are likely to baulk: as my journalism professor at Berkeley used to say, “Journalists and the people who employ them are abidingly cheap”.) I suspect the reason that charges are so seldom imposed has something to do with the extra work that charging requires. It does not seem to be in anyone’s interests to formalise a charging system.

There is one other problem that the Commission recognises but doesn’t really solve. One of the statutory purposes of the OIA is to enable the public’s participation in the making and administration of laws and policies. But ironically, the way the withholding grounds are applied, the sorts of policy information that might actually help people understand what’s going on so that they can have some input is invariably only released after the major decisions have been taken. This is usually explained by the need for governments to have a period of “undisturbed consideration” of the advice they’re given. In the Law Commission’s new phrasing, this emerges as “the ability for Ministers properly to consider advice tendered…”. The disturbance to this proper consideration is, as far as I can tell, public debate. I don’t understand the need to guard against public debate, but it seems to be too deeply embedded in our OIA culture to remove.

Some other recommendations will gladden the hearts of officials: the possibility of charging political requesters for unreasonably broad requests, an allowance for a further time extension after the first one, new withholding grounds for disclosures that might prejudice investigations or inquiries, and a wider definition of vexatious requests.

Overall, it seems to me that if the whole package is accepted and properly implemented, there is much to be gained for requesters and officials. It’s a net gain for both. Whether the government will see its way clear to implement it is another matter…

Topics: Official Information Act |

5 Responses to “The Official Information Act: should it be reformed?”

  1. BeShakey Says:
    January 30th, 2013 at 7:15 pm

    A couple of quick comments. As someone who has responded to far more OIA requests than I’d ever like to admit the amount of resources that go into these can be huge. Basically its a very boring administrative job, but when the requestor is someone politically sensitive (e.g. a parliamentary research unit) or the topic is politically sensitive, it usually requires someone fairly senior to do the work. As a rough estimate for a large, sensitive request I wouldn’t be surprised if the staff costs were around $5,000. That might be a reasonable cost to pay given the undoubted benefits to democracy, but it can add up to a lot and its understandable that officials find what they perceive to be silly requests a bit annoying.

    In terms of game playing, my experience is that this is because of Ministers (or their offices), directly or indirectly influencing the process. Realistically, I can’t see how any legislation can stop politicians from acting politically (and I’ve personally seen them simply ignore the legislation when it suits (handy hint: if a request is transferred to the Ministers office for no obvious reason, its probably because the officials won’t sign off on the Minister’s preferred response to the request because it doesn’t comply with the act)).

    Lastly, I think you’re a bit naive to say that allowing the public to have material at the same time Ministers receive it would simply allow debate. The public expect Ministers to comment intelligently on policy, but that relies on them having considered advice, perhaps debated it, maybe asked for further material etc etc, to reach a position they can then take to the public. I don’t think the OIA is really about making it easier to lobby Ministers, its about making it easier to hold them to account for the decisions they actually make. From that viewpoint, giving Ministers time to consider advice and form an opinion is perfectly reasonable.

  2. Steven Says:
    January 31st, 2013 at 8:56 am

    A couple of quick comments. I agree (as does the Law Commission) about the enormous - and growing - resource implications. Part of the answer is trying to educate requesters to make better targeted requests. But I wouldn’t hold my breath about that.

    And I agree that most of the game-playing is at the behest of Ministers. I’m sure you’re right (and I’ve said so before) that transfers to the Minister’s office are used to resolve disagreements. But I think that practice is often unlawful: transfers can only take place when the request is more closely connected with the Minister’s functions, and in situations where the Ministry has gone into the request itself, it’s likely that their view is that the request was within their own purview. Secondly, section 15 contemplates Ministers being consulted, but decisions being taken by the head of department. Agencies should be sticking to their guns. If Ministers get heavy, they should seek an opinion from Crown Law, I think.

    Was I naive about expecting information to come out in time for the public to participate in the debate? I don’t think so. You are forgetting that the interpretation that is taken allows the information that informs crucial public decisions to be withheld until after the decision is taken. I find that extraordinary. A leading public law author in the UK finds it “startling”. One of the specific purposes of the OIA (section 4) is to facilitate participation in laws and policies. How is this to be achieved if key information is not made available until after the decision is taken?

  3. BeShakey Says:
    January 31st, 2013 at 11:31 am

    Having said it was going to be quick the last comment was huge, so I’ll genuinely try to be brief this time.

    Part of the answer might be educating people about targeted requests, but I doubt that would achieve much. I think its common practice to contact requesters to ask them to focus their request rather than rejecting it outright as too broad. The time and effort involved in this is minimal. The problems I’ve encountered are more about where the extent of the material only becomes clear as its gathered and requests that are large to begin with, but not sufficiently so to reject.

    My comment about being naive was mainly about the second point - whatever the law is I think politicians will try to game it (or just outright ignore it) when there aren’t any real punishments for doing so, but there are real political gains (No Right Turns work on response times seems to have helped things, but it doesn’t solve the whole problem).

    Perhaps I’m falling into the classic (former) public servant trap of struggling to see how things could be done differently. My main comparator is Australia where the laws are dramatically less open, so perhaps if I knew aobut some jurisdictions that gave the public access to information as Ministers received it I’d have a different view, but I can’t see how it would work. Most issues the public are interested in would be politically fraught. If Ministers knew they were going to be lobbied as soon as they received advice, my suspicion is they would either stop seeking advice, tightly focus their requests for advice, or find an alternative way around the OIA (e.g. by increasing the number of verbal briefings they receive). I also don’t agree that this stops the public from participating. In many cases Ministers decisions will require consideration by Parliament, which offers an opportunity. Even when that isn’t the case if a Minister makes a decision and releases the information (and more proactive release would be a good thing) this gives the public a chance to comment and respond.

  4. BeShakey Says:
    January 31st, 2013 at 11:31 am

    Genuinely try; but fail.

  5. NRT on OIA review | Kiwiblog Says:
    February 5th, 2013 at 4:15 pm

    […] with broader “commercial sensitivity” clauses (a loss, though Steven price thinks it won’t cover anything the Act isn’t already stretched to cover). The government will also be advancing changes around privacy in its review of the Privacy Act. So […]

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