OIA compliance and practice in Ministry of Health 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 has shown that there is regular messaging to staff about the importance of the OIA. The development of its centralised OIA team was regularly promoted to staff on its intranet, and the Ministry hosted an ‘OIA Day’ in 2018 to which I was invited as a keynote speaker. These are excellent initiatives that have resulted in an overall positive perception among staff of the agency’s approach to openness. However, there are indications of an inconsistent approach to openness among some senior leaders. The CE is ultimately responsible for the culture of the agency around access to information and therefore must ensure his leadership team have an unambiguous understanding of his approach to openness which they, in turn, cascade to staff.
The Ministry’s OIA webpage provides reasonably comprehensive information to requesters and is prominently placed, which is a signal of the importance the agency places on this function. I have identified some improvements that could be made to further enhance the webpage, such as providing more information about internal decision making rules, and it is very encouraging that the Ministry has made further improvements to its site following my provisional opinion, including publishing its OIA policy. I note that the Ministry’s OIA webpage contains a message about Covid impacting timeframes for providing official information, which may indicate an ongoing issue with OIA handling capacity which should be addressed.
The Ministry’s strategic intentions declare a commitment to transparency, but they do not detail how it intends to achieve this, nor how it intends to ensure compliance with the OIA. The Ministry should develop a strategic framework which promotes an official information culture open to the release of information. This should feature in corporate documents and key aspects of its practice—such as its OIA handling process and its practice of proactively releasing a wide range of information—should be acknowledged and included as contributors to the transparency of its operations.
Action points: Leadership and culture
- Ensure on-going, positive messaging from the CE to senior leaders and staff to develop consistent attitudes, expectations and culture around access to information.
- Review and update the Ministry’s website incorporating my suggestions.
- Establish an official information strategic framework which promotes an official information culture open to the release of information.
- Ensure the official information strategic framework is reflected in strategic documents.
Organisation structure, staffing, and capability
In 2018, the Ministry established a centralised OIA Services team which handles the majority of its OIA requests. This appears to have been a key factor in the Ministry’s commendable improvement in reported OIA timeliness performance over the last several years. Unfortunately, there was a noticeable drop in OIA timeliness performance in the July to December 2020 reporting period. This is largely attributable to an increase in the volume of requests received. I am aware the Ministry is fielding a large number of information requests relating to COVID-19 and vaccinations and there is every reason to think this will continue for the foreseeable future. The Ministry has substantially increased resource in this area, and should continue its efforts to ensure its OIA handling function is sufficiently resourced so it can maintain the high standard it has maintained over several years in its reported OIA timeliness.
Survey comments from staff also indicate that the OIA Services team is vulnerable to spikes in the number of OIA requests received, or in the event of staff attrition. The Ministry should continue its efforts to establish resilience arrangements for when these occur.
The Ministry should establish mechanisms to improve and ensure resilience within the OIA handling process. Expanding the OIA training available to staff may assist with increasing organisational resilience. For example, business units could have OIA ‘champions’ who can act as a knowledge resource for business units, and could be called on to write OIA responses when the OIA Services team is stretched.
At present, the Ministry does not have an extensive suite of OIA training for staff. It has a training manual for staff in the OIA Services team, and it has developed an optional, online training module for all staff. I consider the Ministry would benefit from expanding the range of training available. It should be mindful that, although it has a centralised OIA team, all staff need OIA training to an appropriate level. Decision makers and the Communications and Data Services teams require specialised training for their roles; staff in business units should be knowledgeable enough to participate in discussions about withholding information and competing public interests; and all staff should be aware of the constitutional importance of the OIA, how to recognise a request, and the part they play in respect of sound record keeping. Following my provisional opinion, the Ministry has advised that it will provide targeted training for the Communications and Engagement Team, subject matter experts, and decision makers.
Training on record keeping and the Ministry’s information management systems is a vulnerability for the Ministry. Staff indicated that IM systems are difficult to use to search for and retrieve information, and the difficulties are likely compounded due to a lack of IM and record keeping training for staff. Ensuring staff are well-trained in this area may mitigate the risk that information requested under the OIA may not be found. In its response to my provisional opinion, the Ministry indicated that it had a dedicated trainer for record keeping, and that training was available for all staff. I look forward to following its progress on delivering training over the coming months.
Action points: Organisation structure, staffing and capability
Ensure adequate resourcing in the OIA Services team to meet OIA obligations, based on current and forecast volumes of requests received.
- Establish and formalise mechanisms to improve and ensure resilience within the Ministry’s OIA handling process.
- Ensure OIA training is available for:
- all staff at induction;
- subject matter experts who liaise with Ministerial Services on OIA responses;
- the Communications and Data Services teams who deal with straightforward requests which are nonetheless subject to the OIA; and
- decision makers on OIA responses.
- Ensure regular OIA refresher training is available for all staff.
- Deliver training for staff on information management policies and systems.
Internal policies, procedures and resources
The results of my initial survey of staff, as well as the findings from a contemporaneous investigation of the Ministry’s collection, use, and reporting of information about the deaths of people with intellectual disabilities, leave me concerned about the utility of the IM systems to search for and retrieve information.
In its response to my provisional opinion the Ministry advised that it does not agree with my conclusion that it has acted contrary to the law in relation to storing information in an accessible form, noting that its primary document management system allows for documents to be exported, in line with the requirements of the Public Records Act 2005 (PRA); and that a 2014 review by Archives New Zealand did not identify the concerns I raised.
I am not persuaded to depart from my opinion that the Ministry appears to have acted contrary to law in relation to its obligation under section 17(2) of the Public Records Act to ensure that information is stored in an accessible form, so as to be able to be used for subsequent reference. In the OIA context, poor record keeping creates a risk that staff will not be able to identify, access and collate information relevant to a request in a timely way. I sought comments from Archives New Zealand on this matter before forming my final opinion.
The Ministry has developed general OIA guidance for all staff which is available on its intranet, and more in-depth guidance resources for staff in the OIA Services team. Results from my initial staff survey indicate that staff find these resources easy to find and to use, which is positive. The guidance could be improved by adding detail on some aspects of the OIA and the Ministry’s practice where there are currently some gaps. For example, I note a lack of guidance on public interest considerations where the Ministry is considering withholding information under section 9(2) of the OIA. Following my provisional opinion, the Ministry has advised that my suggested amendments are underway.
I’m pleased that the Ministry has a proactive release policy underpinning its generally sound practice. The policy should be strengthened by ensuring the public interest considerations in the policy align with the principle and purposes of the OIA, and by including a commitment to publish information in the most usable form. Developing this policy further, then ensuring it is promoted among senior leaders may help to ensure a consistent approach across all the directorates to proactively releasing information. Following my provisional opinion, the Ministry has advised that my suggested amendments are underway.
The Ministry also has a policy to guide its practice on fixing a charge for the supply of official information. This policy could also be strengthened by adding details about public interest considerations, along with other factors that may favour remission of charges, and the tasks that can and cannot be charged for.
In the interest of transparency, I suggest that the Ministry publish both its charging and proactive release policies once they are finalised. These policies should also include document control elements to help ensure that it is clear who has executive responsibility for adherence with the policies, and that timely reviews and updates occur.
Implement improvements to IM systems to ensure that information is in an accessible form so as to be able to be used for subsequent reference in line with section 17(2) of the Public Records Act.
Action points: Internal policies, procedures and resources
- Review and amend charging policy in accordance with my suggestions to provide details of:
- the considerations around how and whether to charge for the supply of information;
- remission of charges; and
- tasks that may and may not be charged for.
- Ensure appropriate document control measures exist, along with clear executive responsibility for the charging policy, to ensure regular reviews and updates occur.
- Once finalised, publish the charging policy.
- Review and amend OIA guidance incorporating my suggestions to include information about:
- how to consider requests for urgency;
- how to consider and apply the withholding provisions in section 6, 9 and 18 of the OIA (although agencies can use guidance produced by my office as a reference when considering the application of withholding grounds, it is good practice to collate their own materials to assist staff which include more specific examples based on the types of requests they receive frequently);
- the agency’s duty under section 13 of the OIA to give reasonable assistance to requesters;
- how to apply the public interest test, and where this is applicable; and
- alternative methods of allowing access to information.
- Refine the proactive release policy incorporating my suggestions to:
- ensure public interest considerations for releasing information are detailed and align with the principle and purposes of the OIA;
- include document control elements such as review dates and the role which holds executive responsibility for administering the policy; and
- include a commitment to releasing information in the most useable form (in accordance with the New Zealand Government Open Access and Licensing framework).
- Once finalised, promote the proactive release policy among senior leaders and staff.
- Once finalised, publish the proactive release policy.
- Ensure a senior manager is assigned strategic responsibility and executive accountability for administering the proactive release policy