OIA compliance and practice in Ministry of Education 2022
This report was released as part of ‘Ready or not?’, an investigation into OIA practices at 12 core agencies.
'Ready or not?' is a follow-up to 'Not a game of hide and seek', an investigation published by former Chief Ombudsman Beverley Wakem in 2015.
From the executive summary
This summary draws together the key findings and suggested actions from my investigation.
Leadership and Culture
The Ministry’s leaders demonstrate their commitment to openness and compliance with the OIA through various practices, including sending regular Ministry-wide communications to staff on the subject of the OIA. Staff indicated in surveys that they felt there has been a shift in the Ministry’s OIA culture towards increasing the amount of information proactively released and realising its value in promoting good, transparent government.
The results of the staff surveys indicate, however, that the Ministry may need to provide stronger internal messaging not just around openness in general, but more specifically around the importance of the OIA.
The Ministry sends strong messages on the OIA to its external stakeholders. The agency’s corporate and strategic documents contain many clear statements of commitment to openness and compliance with the OIA. The Ministry’s OIA webpage is easy-to-access and includes comprehensive and accurate information that is helpful to users wishing to make an OIA request.
During my investigation I identified that the OIA webpage would benefit from some amendments and additions, such as including links to the Directory of Official Information published by the Ministry of Justice and the Ministry’s internal decision making rules in relation to OIA requests. There was also an inaccuracy in the wording about the necessity to cite the OIA in requests that I suggested clarifying. The Ministry promptly effected several changes after receiving my provisional opinion, including providing a link to the Directory of Official Information and amending the wording of the webpage to ensure compliance with the OIA.
- Increase messaging from senior leaders to staff about the importance of the OIA
- Provide a link on the OIA webpage to the Ministry’s internal decision making rules (described in section 22 of the OIA)
Organisation structure, staffing and capability
The Ministry operates a centralised model of processing OIA requests which helps ensure that it generally meets its reported OIA timeliness obligations.
The Ministry recently introduced a number of important measures to improve OIA training for its staff. These include increasing OIA training during induction, developing regular refresher training on the OIA, as well as an outreach programme for regional offices and across different levels of the Ministry. These measures are commendable and, when fully implemented, will help align the Ministry’s processes with best OIA practices.
Training on information management and record keeping appeared to be an area of vulnerability for the Ministry. For example, 45 percent of respondents in the initial staff survey indicated that it was not clear how and for what type of information each of the Ministry’s records storage systems should be used. These difficulties can have a direct impact on the Ministry’s ability to comply with the OIA.
- Ensure all staff receive training at induction on record keeping and the use of information management systems relevant to their role; regular refresher training should also be available
Internal policies, procedures and resources
The Ministry’s OIA policies and guidance contain comprehensive process-oriented guidance that describes the administrative steps in the Ministry’s OIA processes in much detail. The instructions are accurate, clear and easy to use.
While the process guidance is comprehensive, there are gaps in the Ministry’s substantive OIA guidance on important aspects of the legislation. The guidance does not contain a definition of official information and has little information on the principle and purposes of the OIA. The guidance also lacks details on the application of withholding grounds and engagement with requesters or information about identifying the type of OIA request received (Part 2, 3 or 4 of the OIA).
The Ministry has a proactive release policy that allowed the agency to establish strong and consistent proactive release practices. The policy, as outlined on the Ministry’s website, may benefit from providing more guidance on such issues as managing risks around proactive release and frequency and timing of publication of official information.
Information management and record keeping policies are broadly outlined in the Ministry’s suite of guidance available to all staff. The guidance lists the Ministry’s information management systems including the electronic content management platform FileNet defined as ‘the Ministry’s default record keeping system’.
The Ministry advised me that its Records Management Policy is currently under review and that the agency is also scoping a digital work programme with the aim of consolidating information management platforms.
- Review and update OIA guidance material to include more information on:
- The definition of official information and the general outline of the OIA, its purposes and the principle of availability of official information;
- Identifying the type of OIA request received (Part 2, 3 or 4 of the OIA);
- Application of withholding or refusal grounds under the OIA, including the requirements under section 19 of the OIA and the public interest test;
- The requirement under section 15(1) of the OIA to make a decision on an OIA request and notify it to the requester ‘as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the request is received’;
- Consulting with and assisting requesters, including dealing with urgent requests.
- Review and update the proactive release policy to include information on:
- Process for preparing for proactive release, including managing risks around private or confidential information, commercially sensitive information and information subject to third party copyright;
- Frequency and timing of publication of official information.
Overall, the Ministry maintains sound OIA practices. The Ministry’s timeliness compliance has been increasing since 2015/16 and remained high – 99.2 percent – in the reporting period from January to June 2020, which includes the time the nation was in lockdown. The Ministry appeared to respond well to the challenges of the COVID-19 lockdown having implemented some positive changes into its practices (e.g. transitioning to operating in a fully electronic way).
Review of the Ministry’s sample OIA files conducted by my investigators revealed some inconsistencies with best OIA practice. The acknowledgment emails were sent to requesters without explaining the requirement under section 15(1) of the OIA to make a decision on an OIA request and notify it to the requester ‘as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the request is received’. Also, the Ministry’s Memoranda for decision makers lacked details of the decision making process or administrative steps taken in relation to OIA requests. I am pleased to note that, in response to my provisional opinion, the Ministry has now amended both templates to align with best OIA practice and ensure compliance with the OIA.
Another opportunity for improvement is presented by the Ministry’s interactions with the Ministers’ offices around departmental OIA requests. The Ministry advised that its ‘usual practice’ under the ‘no surprises’ convention is ‘to send the proposed response to the relevant Minister(s) office within five working days before the intended response date.’ The Ministry can help promote trust and confidence in its decisions on departmental OIA requests by reviewing its practices around the ‘no surprises’ obligation and maintaining an agreement with its Ministers to clarify when, and in what circumstances, it will notify and consult with Ministers’ offices on departmental OIA requests. I note that during the course of this investigation the Ministry has implemented a protocol with the Ministers’ offices on handling departmental OIA requests. I commend the Ministry for its commitment to continuous improvement of its OIA practices, however I note that the protocol could still be further improved to align with my guidance and look forward to receiving further updates on the Ministry’s work in this area.
Upon review of the Ministry’s responses to media information requests handled by the agency’s Media team, I was concerned that the Media team withheld information without citing the reasons relied on under the OIA, nor informing them of their right to seek a review of the Ministry’s decision by way of a complaint to me. In my opinion, I consider this practice contrary to section 19 of the OIA. However, I have not made a formal recommendation in this instance because the Ministry has advised me that it will immediately ensure the reasons and right to complain to the Ombudsman are captured in responses to media information requests. The Ministry has put in place a number of steps to support this, including the OIA team providing direct and individualised advice to the Media team, reviewing media logs weekly to ensure all responses are compliant with the OIA, and providing regular training from June and quarterly thereafter.
I was also concerned that the Ministry was failing to create and maintain full and accurate records for media information requests ‘in an accessible form, so as to be able to be used for subsequent reference.’  In my opinion, I consider this practice contrary to section 17(2) of the Public Records Act 2005. However, I have not made a formal recommendation in this instance because the Ministry advised that it will immediately implement measures to ensure compliance with the Public Records Act 2005, including providing record keeping training to the Media team.
The publication of the Ministry’s OIA guidance, accompanied with providing regular specialist OIA training to the Media team, will give requesters a better understanding of the Ministry’s processes and ensure that staff within the Ministry’s Media team understand their obligations under the OIA. These measures should be supported by messaging from senior leaders reinforcing that media information requests handled by the Media team must adhere to the OIA.
Finally, the results of my staff surveys indicate that the Ministry needs to continue to review staff compliance with the Ministry’s information management and record keeping policies. Many respondents in my initial staff survey reported that it was difficult to use the Ministry’s information management systems for retrieving information and collating it when processing OIA requests. However, in my post-lockdown staff survey most respondents stated that they did not experience difficulties finding and collating information during the lockdown. This may indicate that the Ministry’s recent transition to fully electronic work and promoting the increased use of electronic information management platforms may have already gone some way towards improving Ministry’s practices.
- Review the practice of providing official information responses to the Minister for noting (FYI) under the ‘no surprises’ obligation, in order to identify opportunities where this may be fulfilled by:
- providing information to the Minister’s office at the same time or shortly before the response is provided to the requester; and
- providing the Minister’s office only the topic of the request or a summary of the response rather than the full response
- Ensure the Media team’s responses to media information requests, which contain full or partial refusal, are dealt with in accordance with the provisions of the OIA
- Ensure the Media team’s record keeping practices create and maintain in an accessible form full and accurate records of substantive correspondence with requesters (including telephone conversations, meetings and verbal discussions), and any material internal discussions.
- Update the OIA guide to include more detail on urgent OIA requests and consider publishing the guide
- Provide targeted OIA and information management and record keeping training to the Media team to ensure they understand their obligations under the OIA and the Public Records Act 2005
- Ensure messaging from senior leaders reinforces that media information requests handled by the Media team must adhere to the OIA
- Continue to review staff compliance with record keeping policies and systems and consider whether further training needs to be provided
Performance monitoring and learning
The Ministry collects and reports a range of OIA data with the use of a workflow management tool (JIRA). JIRA tracks the Ministry’s OIA processes and ensures their high visibility throughout the organisation.
As part of its quality assurance processes, the Ministry directs staff to peer review draft responses to OIA requests by completing a Quality Assurance Checklist which asks reviewers to consider a broad range of quality issues including, for example, whether the draft response is ‘helpful and supportive’. I note, however, that the review of the Ministry’s sample OIA files shows that the checklist is not used consistently in every OIA file.
Along with promoting the use of the Quality Assurance Checklist in every OIA file, the high quality of the Ministry’s OIA responses can also be maintained via implementing quality assurance checks of OIA responses after OIA requests are finalised.
The agency’s information management systems capture a broad range of data including, for example, workload forecasting to ensure appropriate management of resources. Some of that data is reported monthly by the Ministry’s OIA team to senior leaders with current OIA requests on-hand provided to the Ministry’s staff weekly. The Ministry’s already strong practices in this area can be further improved and made more comprehensive by including data on media information requests handled by the Ministry’s Media team, along with more data to measure and improve the quality of the Ministry’s responses to OIA requests.
Finally, the Ministry recently committed to incorporating new processes into its OIA policies and procedures aimed at improving the process of learning from the experience of responding to OIA requests and from Ombudsman investigations.
- Develop a quality assurance process for completed OIA requests
- Collect further qualitative data on the handling of OIA requests
- Include media information requests in OIA statistical reporting
- Formalise the process for learning from Ombudsman investigations and guidance, and reflect this in OIA policy and procedures
 See s 17 Public Records Act 2005