OIA compliance and practice in Ministry of Transport 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
Leadership is key to developing and maintaining a strong culture of openness and transparency within an agency. Overall, staff perceived the culture at the Ministry to be generally open and transparent. There were examples of the Chief Executive providing messaging to staff on the importance of OIA requests. In addition, staff survey results suggest the signals sent from leaders about OIA and openness are generally good.
Messaging from agencies to the public about the OIA and openness is also important. The Ministry has some overarching, broad messaging consistent with the OIA’s principle of availability. However, I expect strategic and corporate documents, such as the annual report, to include overarching statements about the Ministry’s commitment to complying with the OIA and openness generally.
The Ministry launched a reformatted website in November 2020, which includes a lot of useful and easy-to-understand content for OIA requesters. However, the webpage does not include information such as: an overarching ‘statement of principle’ about the Ministry’s commitment to complying with the OIA and openness generally; a statement that supporting documents can be requested in a variety of formats; that OIA decisions will be made ‘as soon as reasonably practicable’; and my contact details. I am also concerned that the OIA webpage is two ‘clicks’ from the homepage and is not particularly easy for requesters to locate.
Finally, the Ministry should consider including a timeline of its upcoming consultations. I am pleased the Ministry now explicitly states that submissions may be published. Openness and transparency about the publishing of submissions at the outset is important as it may alter how submitters signal where any personal, commercial or other sensitive information appears in their submission.
Action points: Leadership and culture
- Clear messaging to the public in strategic plans and corporate documents about the Ministry’s commitment to complying with the OIA and openness generally
- Add a link to the OIA webpage directly from the website homepage
- Include on the OIA webpage:an overarching ‘statement of principle’ outlining the importance of OIA and openness;
- a statement that supporting documentation can be requested in a variety of formats;
- an update to the OIA timeframe to state that OIA decisions will be made ‘as soon as reasonably practicable’; and
- my contact details
- Include a timeline of upcoming consultations on the website
Organisation structure, staffing and capability
The Ministry operates a ‘decentralised’ model to process OIA requests as the majority of requests are completed by business units. The Ministry undertook an external review of its official correspondence function in 2019, which resulted in a number of proposed ‘work streams’ to address identified issues. The review proposed several model options and the model adopted provided more senior positions in the Official Correspondence team.
Overall, there are some benefits and some vulnerabilities to operating a decentralised model. The Ministry considers that it works well for the size of the organisation and the number of OIA requests it receives. One of the vulnerabilities of the model is that when a number of people across the organisation are responsible for processing OIA requests, individual staff members may process only a handful of OIA requests every year, and it may be difficult for those staff to maintain their knowledge about what to do when handling a request. With this in mind, I encourage the Ministry to continue to review the model to ensure it is fit for purpose and the most efficient operating model for OIA processing at the Ministry.
The Ministry conducts several types of OIA training. It delivers some training on OIA request processes at induction (if it is relevant to the employee’s role); targeted training to new staff when they first receive an OIA request; and periodic information sessions to groups of staff. The Ministry has also started conducting ‘OIA 101’ training for recent graduates. Overall, I think the Ministry does well in the area of OIA training, but there is room for improvement. I am pleased the Ministry has said it will continue to review the OIA education function to refine the OIA training processes and materials. In particular, I would like the Ministry to include information on the OIA into the induction program of all new staff. It should also ensure in-depth OIA training is provided to those processing OIA requests and all senior leaders are attending formalised OIA training on a regular basis.
In terms of training on information management and record keeping, a high number of staff that responded to the initial staff survey said they had received training in the last two years. However, there does not appear to be any refresher training on information management and record keeping. I would encourage the Ministry provide refresher training on a rolling basis to all staff on these topics.
Action points: Organisation structure, staffing and capability
- Ensure that regular OIA training is provided to:
- all staff at induction;
- specialised roles such as the Official Correspondence team and those processing OIA requests;
- senior leaders
- Ensure regular refresher training is provided for information management and record keeping
Internal policies, procedures and resources
The Ministry has an ‘OIA Hub’, which is a ‘one-stop-shop’ for all OIA related information. The OIA Hub includes a wide range of information. I applaud the Ministry for having a wide variety of OIA resources to assist staff, and for the sound content within these resources.
On the whole, the guidance provides very clear and practical steps for staff who may not have completed the OIA process before. However, in order to further lift the quality of the material, I suggest the Ministry review its guidance and consider including information on: keeping records of the search for documents; balancing public interest and keeping relevant records; peer review processes; and consultation and notification to the Minister’s office. The Ministry should also consider publishing the OIA guidance material on its website.
The Ministry has comprehensive guidance on information management and record keeping and a Knowledge team that assists in this area. The Ministry’s information management system (TARDIS) was introduced in 2018, it stores and manages both documents and emails. Comments from the initial staff survey were mixed in relation to its effectiveness. I encourage the Ministry to continue to update the training and guidance, as well as review its technology capabilities periodically to ensure they are fit for purpose.
The Ministry proactively releases a range of information, including a number of OIA responses. While the Ministry does have a proactive release process document, which addresses the proactive release of Official Information requests, it does not have an overarching proactive release policy to guide decision making.
I encourage the Ministry to develop an overarching proactive release policy that includes information on the publishing of OIA responses. I suggest it review its current guidance on the proactive release of OIA responses to include information on making information accessible and the refusal of OIA requests because information is or will soon be publicly available. I also suggest the Ministry publish its guidance on the website.
Action points: Internal policies, procedures and resources
- Review and update OIA guidance material to include more information on:
- keeping records of the search for documents;
- balancing public interest and keeping a record of considerations;
- peer review processes; and
- consultations and notification to the Minister’s office
- Publish the OIA guidance material on the Ministry’s website
- Develop an overarching proactive release policy for the proactive release of any information, and include the publishing of OIA responses as part of the broader proactive release policy
- Review and update the proactive release of OIA responses process document to include further information on:
- making information accessible; and
- refusal of OIA requests because the information requested is or will soon be publicly available (section 18(d) of the OIA)
- Publish the proactive release guidance on the Ministry’s website
To gain an understanding of how the Ministry processes requests, my investigators reviewed a random selection of OIA request files. Overall, the Ministry’s OIA processing appears to be good, but some inconsistencies were identified. I am pleased the progress on OIA requests is tracked and maximum statutory timeframes were usually adhered to. Correspondence was generally of a high standard with some good template letters.
However, there were some vulnerabilities identified in the Ministry’s practices, which have prompted me to suggest remedial actions. It is good practice for the Ministry to ensure OIA acknowledgement emails are sent every time a request is made (unless the request is responded to immediately). Also, acknowledgement letters should include the maximum statutory timeframe to make and communicate a decision on a request. There were some inconsistent record keeping practices identified. For instance, there were no records kept of searches or the balancing of public interest considerations. Records of telephone conversations and meetings were also not provided to my investigators.
I note that graduates complete some OIA requests, which is a good development opportunity for junior staff. However, devolving responsibility for preparing responses to OIA requests too far down the organisational structure risks poor or inconsistent decisions. Junior staff will require further support to ensure their practices are consistent with those across the organisation. Training and guidance can be used to ensure consistent practice, as well as having clear and robust peer review processes. I suggest broadening the review process to ensure those with specialist OIA knowledge (either in the Official Correspondence or Legal team) are reviewing OIA request files and responses before they are provided to the requester. It is also important to keep a record of the review.
Other inconsistencies were identified in the sample file review conducted by my investigators. For instance in one case, an email was included in the file suggesting that some documents in scope were almost entirely replicated in a memorandum, so the documents were not included in the request. However, the requester was not given an opportunity to clarify whether or not to include duplicate documents in the request. In another instance, some information included in an OIA request was refused under s 18(d) and some information was withheld under s 9 of the Act. However, the decision letter stated that the requester could ‘make a complaint about the withholding of information to the Ombudsman’, and it may not have been clear to the requester that they could also complain to the Ombudsman about the information that was refused under the OIA. As outlined in the template decision letter available on my website, I suggest the Ministry include in its response template wording ‘you have the right to seek an investigation and review by the Ombudsman of this decision’.
I am pleased the Ministry publishes some OIA responses on the OIA page of the website and advises requesters in the OIA response letter that their responses will be made public. In addition to publishing some OIA responses, the Ministry releases a variety of other information proactively. I urge the Ministry to continue to increase the number of documents it publishes proactively and to ensure it has the resources in place to allow growth in this important area.
In terms of timeliness, the Ministry’s reported percentage of OIA requests completed within the maximum statutory time limit has remained relatively stable for the last three reporting years. There is still some way to go for the Ministry to reach its 100 percent target.
During the COVID-19 2020 lockdown, there were no changes to the prioritisation of OIA requests and the Ministry updated its guidance in line with advice issued by me and from the Solicitor-General. The post-2020 lockdown staff survey results suggest the messages sent by the Chief Executive regarding OIA and openness during the 2020 lockdown period were heard by staff. There were also some positive changes that occurred as a result of the 2020 lockdown for the Ministry. For instance, hard copy documents were not sent to the Minister’s office, just electronic copies were accepted. If this practice works well for the Ministry, I urge it to consider continuing the practice, with agreement from the relevant Minister’s office.
My investigation considered the Ministry’s interactions with the Minister’s office on OIA requests. The current procedure allows five working days for the Minister’s office to review responses, at the Minister’s request. Approximately 46 percent of Chief Executive OIA requests were sent to the Minister’s office in the 2019/20 financial year. It is permissible for agencies to provide OIA responses to Ministers’ offices as part of a ‘no surprises’ arrangement if it is for a proper purpose (such as allowing the Minister to prepare for public commentary), and does not absolve the agency of its responsibility for complying with the statutory timeliness requirements. The recognised need for a department to inform its Minister under ‘no surprises’ may be met by giving a copy of the decision to the Minister at the same time, or shortly before, it is sent to the requester. One way agencies can ensure best practice, is by having a clear written agreement in place with Minister’s offices. I also encourage the Ministry to conduct a review of the process to notify the Minister of OIA responses to ensure the practice is occurring on a case-by-case basis, and does not interfere with the statutory obligation to make and communicate the decision as soon as reasonably practicable. It should also ensure all ministerial interactions are recorded.
Requests to media teams for information are subject to the OIA. Media teams receive any number of requests from journalists, including requests for information already held by the agency (which are OIA requests) or requests for the Ministry to generate comment on a particular issue (which are not OIA requests). To gain an understanding of the Ministry’s processing of media information requests, my investigators reviewed a random selection of media request documents. The majority of requests were answered in full, but a small number were not.
It is imperative that agencies have a clear policy on how they will consider media information requests. I encourage the Ministry to update its OIA guidance to include details such as the circumstances in which an information request from the media is passed to the Official Correspondence team to deal with. The guidance should also have information about requests refused by the Engagement and Communications team, to ensure compliance with the legal obligation to provide the reason for the refusal and the applicant’s right to complain to the Ombudsman. Once updated, the Ministry would benefit from proactively releasing the relevant guidance document. Targeted training to the Engagement and Communications team on the OIA, along with messaging from senior leaders, would also be beneficial.
Agencies should publish information in a format that accommodates the use of assistive technology, such as screen readers. For example, publishing or providing information in an ‘image only’ format could preclude the use of screen readers. It may also make the information less easy to use generally, by limiting the ability to search documents by keyword. During the course of the investigation, the Ministry updated its website. It said that the format of the new website requires published OIA responses to include a brief description of the PDF document, which improves searchability and makes the information more accessible via search engine. However, my investigators reviewed a number of recently proactively published OIA responses on the Ministry’s webpage and a number of those reviewed were partially searchable with some pages that were an ‘image only’ format. I encourage the Ministry to ensure all documents released in response to an OIA request or proactively released are searchable and not ‘image only’, and all visual elements are tagged with alternative text.
Action points: Current practices
- Ensure every OIA request is acknowledged; consider updating the acknowledgement to include the information requested and an explanation that an extension will be notified if a decision cannot be made and communicated within the 20 working day maximum statutory timeframe
- Review practices in relation to searching and keep a record of searches
- Keep a record of decision making, including the balancing of public interest considerations against the need to withhold information
- Amend OIA record keeping practices to ensure full and accurate records of substantive correspondence (including telephone conversations, meetings and verbal discussions) are created and maintained
- Ensure OIA responses are reviewed by an OIA specialist in either the Official Correspondence team or Legal team, and keep a record of the review
- Ensure all documents in scope are included in a request, or give the requester an opportunity to clarify the scope of the request (even if documents are largely duplicated in other documents)
- Ensure requesters are advised of their right to complain to the Ombudsman about reviewable OIA decisions
- Develop a written agreement with the Minister’s office on handling agency OIA requests
- Conduct a review of the process to notify or FYI the Minister of OIA responses to ensure the practice is occurring on a case-by-case basis and does not interfere with the statutory obligation to make and communicate the decision as soon as reasonably practicable
- Ensure a full and accurate record is kept of interactions with the Minister’s office
- Update the OIA guidance to include detail on media information requests, and consider publishing the guidance
- Keep a record of all substantive communications with requesters, including telephone conversations and meetings
- Provide targeted OIA training to the Engagement and Communications team
- Ensure all documents released in response to an OIA request, or proactively released, are searchable and not ‘image only’, and all visual elements are tagged with alternative text
Performance monitoring and learning
The Ministry records information on OIA requests in an ‘OIA Tracking Sheet’. This Excel spreadsheet captures a variety of information for each request, and is mostly focused on tracking the progress of work to respond to the request. I am pleased the Ministry has introduced a workflow tool that tracks the progress of OIA requests, and that improvements to data collection and reporting were considered as part of the Ministry’s official correspondence review. However, I encourage the Ministry to expand the range of data it collects and improve details in regular reporting to senior leaders. The Ministry should also consider including OIA requests received by the Financial, Economic and Statistical Analysis Team and the Communications Team in OIA statistical reporting.
The Ministry does have a peer review process in place for responses but I suggest broadening the process to ensure an OIA specialist reviews requests. The Ministry does not have a formalised post-closure quality assurance process. I urge the Ministry to consider developing a formal quality assurance process for completed OIA requests.
I am pleased that the Ministry advised that Ombudsman complaints are processed by its Legal team and investigation outcomes are shared with the team responsible for the OIA request that is the subject of investigation. However, the Ministry did not provide an example where an Ombudsman decision had informed a change in practice. The Ministry would benefit from formalising these processes to ensure investigation outcomes, case notes and my guidance are incorporated into the Ministry’s practices and guidance where relevant.
Action points: Performance monitoring and learning
- Collect further qualitative data on the handling of OIA requests
- Improve details in regular reporting of statistics to senior leadership
- Include official information requests handled by the Financial, Economic and Statistical Analysis Team and the Engagement and Communications Team in OIA statistical reporting
- Develop a formal quality assurance process for completed OIA requests
- Formalise the process for learning from Ombudsman investigations and guidance, and reflect this in OIA policy and procedures