Does the OIA work – the Chief Ombudsman’s view
The Official Information Act (OIA) turns 40 this year, and my office is marking 60 years since the Ombudsman was established in New Zealand.
These milestones are to be celebrated, along with the 35th anniversary of the Local Government Official Information and Meetings Act (LGOIMA) this year.
New Zealanders live in one of the most transparent countries in the world and it’s a position we retain year after year. We enjoy access to information rarely seen in other like-minded democracies.
As New Zealand’s Chief Ombudsman for more than six and a half years now, I have reflected on sporadic criticism that the OIA and LGOIMA are not fit for purpose. My view is that the fundamentals of the laws are sound.
People seeking immediate and wholesale changes to those fundamentals should be careful what they wish for. When the OIA was last reviewed by the Law Commission in 2012, its report actually recommended a number of additional grounds to withhold information be added to the OIA, including more protection for commercial information, information gathered during the course of an investigation and for information of cultural significance.
Tens of thousands of requests for information are made under the OIA and LGOIMA every year - by the public, lobby groups, the media, researchers, opposition MPs and so on. Most are met with few issues. I received around 2500 complaints in the past year, and completed the majority within three months.
I acknowledge that the process can occasionally be difficult, long and frustrating. Neither people requesting information nor those who hold it seem completely at ease with applying the legislation and I see mistrust on both sides.
If you start with the fundamental principle of the OIA, that information should be released unless there is a good reason not to, you’d expect a fairly smooth process and information to be provided promptly. This does not always happen.
In my view there are some key factors that would improve the OIA and LGOIMA practice.
Good stewardship is essential. The guardians of official information – government ministers, chief executives – have the moral authority to act and to role model openness and transparency.
While I see some change – such the proactive release of ministerial diaries and Cabinet papers, and some departments becoming more open – it’s not enough.
There should be, I believe, an incentive to release information promptly. I would like to see performance measures for chief executives and senior managers around OIA and LGOIMA decisions and proactive release. They should be accountable as these Acts expect.
Measures that would include data on timeliness, validity of extensions, and the number of complaints I uphold could inform this and I note the Public Service Commission has already announced it will be publishing more data in future.
Requests made and dealt with under the OIA and LGOIMA don’t have to be a battle. Requests should be made, and considered, in the spirit of the legislation which actually has a broad reach.
When problems occur it is not usually because there is something ‘wrong’ with the OIA itself. I have noted that agencies, and requesters, sometimes erroneously divide requests into those that can be responded to quickly, and those that must become ‘OIA requests’.
There is a belief that such requests must go through a regimented process that inevitably takes 20 working days to complete. This artificial and incorrect distinction has led some requesters to think OIA requests are the excruciatingly slow, poor cousin of ‘media requests’.
The OIA and LGOIMA themselves do not set out a process to be followed. Rather, they say requests should be responded to as soon as reasonably practicable. An agency’s process can be as swift and flexible as it wants to be. Ministers, agencies and local bodies should treat requests for information as a priority and not as a chore or a challenge.
I can see real benefit in having stronger oversight, co-ordination and leadership to improve the experience of requesters seeking access to official information.
I suggest establishing OIA officers within government agencies who have the role and responsibility to provide this.
I will take stronger action against public sector agencies and ministers who do not meet statutory timeframes for making decisions on information requests and communicating them to requesters. With the support of Parliament, I am now setting up an additional early resolution team to ensure complaints get swift allocation and attention. My office will not be used to delay access to information. Where Ministers and agencies fail to meet their obligations I will make formal findings and recommendations and will not resile from publishing these.
The OIA and LGOIMA were established to give New Zealanders access to official information, lifting our country up as one of the most transparent democracies in the world.
Is the OIA ‘broken’? No.
Do people (mostly) get access to a broad range of information by asking for it? Yes.
What is required is an adherence to the spirit and purposes of the law, and that comes from the top.