Annual Report 2009/2010
At the close of the 2009/10 reporting year we find ourselves in a similar position to the agencies we oversee: endeavouring to deliver more and better services with the same (or in some cases fewer) resources. We received almost 10,000 complaints and enquiries last year. This represents an increase of eight per cent on 2008/09 numbers, and 11.5 per cent on 2007/08 numbers. While we aim to limit the number of open complaints at year’s end to
800-900, we finished the reporting year with 1,720 complaints on hand. This represents an increase of 22.7 per cent on 2008/09, and 39.5 per cent on 2007/08. This has placed significant pressure on already stretched investigative resources, and is compounded by a loss of experienced investigating staff in recent years, as well as the increasing complexity of the matters we are asked to determine. Assuming demand does not diminish in the near future we expect those numbers to have significant flow-on effects for our reporting in the coming years. It becomes essential in this climate to identify efficiencies, both in our own operations, and in the operations of the agencies we oversee.
Early Assistance Group
We are beginning to realise gains from the restructure that established an Early Assistance Group (EAG) within the Office. Last year, EAG dealt with 4,149 enquiries and complaints – 41.7 per cent of the total received. EAG was able to provide timely responses to straightforward complaints and enquiries, freeing up investigators to focus on matters requiring more in-depth consideration and the exercise of the Ombudsmen’s formal investigation powers.
Own motion investigations
As reported previously, we are repositioning the Office to identify significant systemic issues arising from complaints where resolution is most likely to result in wider improvements to administrative and decision making practices. We are doing this to best effect in the corrections sector – which accounts for a significant proportion of our Ombudsmen Act caseload – where we investigated a number of issues of our own motion during the reporting year.
A principles-based approach
We are increasingly investigating complaints with a view to establishing and disseminating principles of broader application. This approach is apparent in our report on operations under the official information legislation, which discusses principles established in relation to:
• Police witness statements and investigation costs information;
• weekly departmental briefings to Ministers;
• local authority events funding;
• confidential building plans;
• discretionary criteria for waiving parking infringement notices.
Streamlined investigation processes
We piloted a new approach to investigating official information complaints in the parliamentary sector and Ombudsmen Act complaints against Immigration New Zealand. The new approach aims to get to the heart of the complaint through early review of the relevant information followed by face-to-face meetings to discuss the issues. The intent is to reduce the number of reports that agencies have to prepare in the normal course of the Ombudsmen investigation and review process – that is, to move away from the time and resource-intensive “lawyers’ letters at a hundred paces” mode of working. Early indications are that this approach has significantly reduced the time to complete investigations and the administrative demands on the agencies involved. We intend to roll out this process further in the forthcoming year as capacity allows.
Reduction in delay complaints under the OIA
Last year we reported on changes to our investigation process in relation to complaints about delays in responding to requests under the official information legislation. Our standard practice introduced in 2008 is to undertake a formal investigation of such complaints (on an urgent basis where warranted), with a view to issuing a formal opinion and making appropriate recommendations. In 2009/10 we received 164 delay complaints against Ministers and central government agencies. This is down 23 per cent on 2008/09 numbers, and 43 per cent on 2007/08 numbers, and is the lowest number of delay complaints received since 1993/94. This suggests that our new approach has been effective, and that Ministers and central government agencies are taking the statutory time limits seriously and using the mechanisms available in the legislation to avoid breaching them.
Monitoring and inspecting places of detention
In our second full year of operation as a National Preventive Mechanism (NPM) under the Crimes of Torture Act 1989 (COTA), we made considerable progress in refining our inspection and reporting methodologies, and developing positive and productive working relationships with other NPMs and people working in places of detention. We appointed a second Inspector, who has considerable international experience in both the corrections and health sectors.
We met regularly and even conducted joint visits with other NPMs. This enabled us to learn from each others’ experiences, and take a multi-disciplinary team-based approach to inspections, which we would not otherwise have been able to do within existing budgetary and staff constraints. Places of detention have been able to see how our inspections work in practice, and that – not only are they nothing to fear – they can provide real impetus for change for the better, both for detainees and staff.
To achieve our aim of helping state sector agencies improve their capability in good administrative, decision making and complaints handling processes, we established a Policy and Professional Practice Advisory Group (PPPAG), comprising an Assistant Ombudsman and three senior advisers. Part of PPPAG’s role is to provide advice on legislative, policy and administrative proposals relevant to the Ombudsmen’s jurisdiction, and to assist state sector agency training, particularly on obligations under the official information legislation. In 2010, we provided advice on 35 proposals, up 75 per cent on the year before. We conducted 23 workshops and training seminars on the official information legislation and the role of the Ombudsmen, up 30 per cent on the year before.
By far the best way of achieving efficiency gains and building public confidence is for agencies to do things right the first time round, or put them right as soon as possible thereafter. This means following a fair process and making good decisions in the first place, and reviewing what was done with fresh eyes and an open mind when given the opportunity. Doing this ought to minimise the need for potentially costly external reviews or investigations. In the past year, a number of agencies approached us for advice on designing quality complaints handling processes, and we were only too happy to help.
It also means being proactive – particularly in the official information context. Agencies increasingly recognise that the only way to handle large volumes of information in which there is a clear and demonstrated public interest is to make it available proactively, often in electronic form, before being inundated with individual requests. This was well-illustrated in the past year by moves to release Ministers’ and MPs’ expenses and Chief Executives’ credit card expenses on a quarterly basis.
We encourage agencies to consider at the start of significant policy and decision making processes what information will be generated and should be disclosed in the public interest, and when. This will minimise the need to respond reactively to individual requests and costly external reviews. A number of agencies approached us in the past year for advice on how best to manage their official information obligations in the context of significant public interest initiatives; once again, we were only too happy to help.
Finally, because we recognise that responding to official information requests can be time consuming and resource intensive, we suggest that agencies consider disseminating official information releases as widely as possible. Once individual requests have been met, is there any reason why the same information cannot be released to the world at large online? In most cases, we do not consider that there is. Doing so may minimise the burden of responding to requests of a same or similar nature from other requesters. An example of this was when the New Zealand Security Intelligence Service published information on its website after meeting individual requests (www.nzsis.govt.nz/Archives/release).
The year ahead
UN Convention on the Rights of Persons with Disabilities
New Zealand ratified the UN Convention on the Rights of Persons with Disabilities (the Convention) in 2008. The purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Article 33 says that states should establish a framework, including designating one or more independent mechanisms, to promote, protect and monitor implementation of the Convention. We have been asked to bring our independence from government to monitoring and reporting on implementation of the Convention. Scoping of this proposed new role will begin from 1 July 2010, in collaboration with the Human Rights Commission and disabled people’s organisations.
Getting better data – Biennial survey of agencies and complainants
In October 2010 we will conduct our second biennial survey of complainants and state sector agencies. The purpose of the survey is to assess the level of complainant satisfaction with the Office and identify areas where we can improve. We have adopted new output performance measures and standards based on the information we will derive from the survey, including the percentage of complainants and agencies satisfied with the standard of service regarding Ombudsmen Act and official information complaints. We are looking forward to having our first set of comparative data – seeing where we are today versus where we were in 2008.
Post-implementation review of Case Management System
Last year we reported on the redevelopment of our Case Management System (CMS) to better assist workflow management and highlighting of systemic issues. In the second half of 2010 we will conduct a post-implementation review to see whether it is meeting our expectations and the requirements of staff.
Administrative deficiencies and remedies
We have been reviewing the information we record about how we handle the complaints we receive. One of the purposes is to get better data about the impact we are having in the resolution of complaints, in order to give greater assurance to Parliament and the general public that they are getting value for money. Another purpose is to identify trends and common problems to inform our provision of training and guidance and assist agencies to effect systemic or cultural changes in administrative and decision making practices where warranted. In 2010, we plan to record information about the kinds of ‘administrative deficiencies’ we have identified as a result of our investigations and the kinds of remedies that come about as a result of our interventions.
‘Administrative deficiencies’ are things like: unreasonable delays in taking a decision; not providing adequate advice, explanation or reasons; making procedural, legal or factual errors; or making unreasonable or wrong decisions etc. A finding of ‘administrative deficiency’ will only be made after a full investigation has been completed, and the agency has had an opportunity to comment. This should mean relatively few findings of administrative deficiency, because most cases are resolved with the agency agreeing to reconsider the act or decision that gave rise to the complaint and implementing suggested changes to remedy defective conduct. The point is to focus on how to achieve administrative improvement rather than reprimanding the agency concerned. We plan to report the data in aggregate form to show the general nature and incidence of administrative deficiencies occurring across the state sector, and to help identify systemic issues that warrant further consideration, and areas where training and guidance would be helpful.
Remedies are actions taken to try and resolve a complainant’s grievance. They can include actions that benefit the individual complainant (such as providing a better explanation or reasons, changing a decision or agreeing to reconsider one, apologising, or providing a financial remedy); as well as actions that benefit wider state sector administration (such as changing laws, policies or procedures). Recording information about the types of remedies that come about as a result of an Ombudsman’s intervention is another way of demonstrating the impact we are having in the resolution of complaints against state sector agencies.
Reviewing the legislation
We look forward to engaging with the Law Commission on its review of the official information legislation to identify ways it could be made to operate better. We will also give further consideration to whether the Ombudsmen Act requires modernisation to bring it into line with modern legislative drafting standards.