OIA compliance and practice in New Zealand Customs Service 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
It is evident from my investigation that Customs’ executive leadership team signals their commitment to compliance with the OIA and supporting the culture of openness within the agency. The results of my initial and post-lockdown staff surveys were largely positive around staff’s views on Customs’ approach to openness generally. However, the results also revealed opportunities for Customs’ senior leaders to make their messaging on the OIA more visible and explicit. Therefore, I suggest that the agency consider sending more regular communications to staff (e.g. via meetings, emails, the intranet and high-level statements in the agency’s internal guidance) reinforcing the importance Customs attaches to complying with the principle and purposes of the OIA.
Customs’ external messaging appears to be one of the stronger areas of the agency’s OIA practice. Customs’ website and some key strategic and corporate documents contain a number of statements that illustrate the agency’s commitment to openness, transparency and compliance with the OIA.
To improve the website further, I suggest that Customs consider publishing its OIA guidance. This measure will help promote openness and accountability by providing requesters with a better understanding of Customs’ OIA processes.
Action points: Leadership and culture
- Increase messaging from senior leaders to staff about the importance of the OIA
- Provide a link on the OIA webpage to Customs’ internal decision making rules (described in section 22 of the OIA)
Organisation structure, staffing and capability
Customs’ current OIA processes operate under a centralised model which, in my view, meets the agency’s demands in this area of its functions. The model also allowed it to successfully adapt to the challenges of the 2020 lockdown.
The results of my initial and post-lockdown staff surveys appear to indicate some gaps within Customs’ OIA training systems. However, I am encouraged by the recent measures developed by the agency (including committing to increased OIA training in the OIA team’s business improvement plan). In my view, these measures will help improve Customs’ OIA training practices which currently include training at induction, specialist training for the OIA team and refresher OIA training for all staff.
Staff training around information management and record keeping appeared to present more opportunities for improvement. The results of my initial staff survey indicated that Customs may need to increase staff training around record keeping on the use of the agency’s current information management platforms particularly in the interim until Customs’ single information system project (named Cohesion or Hononga) is completed. In order to identify areas where staff require additional support, I suggest that Customs consider conducting a survey of training needs, and of compliance with information management and record keeping policies. These measures should be bolstered through increased messaging from senior leaders to signal Customs’ commitment to maintaining sound information management and record keeping practices.
Action points: Organisation structure, staffing and capability
- 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
- Consider conducting a needs analysis in order to identify areas where staff require additional training support and/or guidance on the use of the information management systems and good record keeping
Internal policies, procedures and resources
Customs recently implemented a number of measures aimed at improving its OIA policy and guidance material, including regularly reviewing its OIA guidance and recording the agency’s decision-making process on OIA requests via ‘OIA Decision Report Template’. However, Customs’ guidance on the OIA process should, in my view, be expanded to include more information on important OIA topics such as transfers, extensions, application of withholding and refusal grounds and engagement with requesters.
Customs may also wish to consider streamlining its sign-out process as I note that some respondents in my initial staff survey stated that Customs’ current process greatly reduced the time available for collating information for OIA requests. Implementing different tiers of signoff depending on the complexity or degree of risk associated with the request might enable risks to be managed while also allowing staff sufficient time to process OIA requests.
Customs’ proactive release guidance currently covers proactive release of responses to OIA requests and Cabinet material. The guidance on the proactive release of Cabinet material is quite detailed. I suggest that Customs expand the coverage of the policy to include proactive release of all official information. The policy could be further enhanced by ensuring it includes details such as the types of Customs’ information that will be proactively released and the process for identifying opportunities for release.
The results of my staff surveys appear to indicate that Customs needs to continue to review staff compliance with the agency’s information management and record keeping policies. Several respondents to my initial staff survey highlighted specific issues present within Customs’ current systems, including lack of clarity around the use of Customs’ multiple information management systems and frequent reliance on staff knowing who to approach to obtain information relating to an OIA request.
To address information management concerns, Customs advised that it has been working towards implementing a single document management system across all of its corporate functions with the intention of using it as ‘Customs’ main document/content management system.’ In conjunction with the agency’s recent review of its information management structures (including policies and procedures), Customs has also established an information management team in its Information Service Group.
Customs is making positive progress in this area and I encourage it to ensure that the new system is implemented in a way that improves the efficiency of capturing, storing, searching and retrieval of information to enable information relevant to a request to be identified and collated. In addition, until the new system is in place, Customs must remain aware of the limitations of its current systems, and ensure it has policies and processes in place (including providing guidance and training to staff) that will mitigate any risk of information being overlooked when it is searched for in the context of an OIA request. Senior leaders should bolster these measures by signalling Customs’ commitment to maintaining sound information management and record keeping practices.
As Customs advised of its plan to review its ‘information management environment’, I encourage it to ensure that its policies and procedures explain in appropriate detail all staff’s obligations in relation to information management and record keeping.
Action points: Internal policies, procedures and resources
- Review and update OIA guidance material incorporating my suggestions
- Review sign-off processes to identify where these can be streamlined
- Review and update the proactive release policies and procedures incorporating my suggestions
- Ensure that the introduction of the new information management system is:
- accompanied by appropriate interim measures, including providing guidance and training to all staff, addressing staff’s difficulties with the use of the current information management systems to mitigate the risk of information being overlooked when it is searched for in the context of an OIA request; and
- supported by clear and regular messaging from senior leaders on the importance of sound information management and record keeping practices.
- Ensure that information management and record keeping policies include guidance on the matters as per my suggestions
The agency has maintained consistently high timeliness of its responses to OIA requests since 2015/16 (99 percent) with the agency’s reported timeliness standing at 99.7 percent during the period of July – December 2020. However, Customs’ OIA statistics also show a low number of responses to OIA requests published on Customs’ website relative to the number of total OIA requests received.
Customs appeared to respond well to the challenges of the 2020 lockdown having effected some positive changes into its practices such as the implementation and active use of Microsoft Teams. Customs advised that the software allowed the agency’s OIA team ‘to consult more easily with other business units … [and] share documents virtually across the organisation during OIA consultation and commissioning meetings.’
Review of Customs’ sample OIA files conducted by my investigators revealed some inconsistencies. For example, the acknowledgment emails were sent to requesters without fully 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’. In addition, some records lacked details of the decision making process or administrative steps taken in relation to searching for requested information, and the rationale behind the application of the public interest test. I am pleased to note, however, that in response to my provisional opinion Customs has already taken some steps towards remedying the above inconsistencies, including amending template acknowledgement email to include the requirement under section 15(1).
I suggest that Customs review its interpretation of the ‘no surprises’ principle in respect of allowing the Minister’s office five days to review Customs’ response irrespective of whether it is for notification or consultation. Customs should identify where it may meet its obligations by, where appropriate, providing a brief synopsis (or a topic) of the response to the Minister’s office at the same time, or shortly before, it is sent to the requester, rather than providing the proposed response in its entirety five days in advance.
I was encouraged to note Customs’ advice that it was ‘in the process of exploring an OIA agreement with the Minister’s office’ to regulate interactions between the agency and the Minister’s office. Further, in response to my provisional opinion, Customs also advised that it has drafted ‘a process for engagement with [the] Ministers’ office on handling departmental OIA requests’ noting my suggestions ‘around how the intent of the ‘no surprises’ convention can be fulfilled’.
Upon review of Customs’ responses to media information requests handled by the agency’s Communications team, my investigators found that the team refused requests without citing the reasons relied on under the OIA, or informing requesters of their right to seek a review of Customs’ decision by way of a complaint to me. I consider this practice contrary to section 19 of the OIA.
I was also concerned that Customs 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, this practice is contrary to section 17(2) of the Public Records Act 2005.
However, I have not made formal recommendations in the above instances as Customs advised that it has commenced a work programme to ensure compliance with the OIA and the Public Records Act 2005. A number of actions are already underway including improvements to the current OIA and record keeping processes, as well as providing refresher training and guidance to the Communications team.
The publication of Customs’ OIA guidance, accompanied with providing regular specialist OIA training to the Communications team, will give requesters a better understanding of Customs’ processes and ensure that staff within the Communications 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 Communications team must adhere to the OIA.
I am encouraged to note that the Communications team has committed to looking at the media teams’ practices of other agencies within the public sector in order to ‘incorporate any potential changes to its policies and processes’.
Action points: Current practices
- Consider amending template extension letter to specify, where appropriate, the new date to which the agency is extending the 10 working day time limit available for transfers
- Ensure that records of consultations with requesters and agencies are kept whenever transferring an OIA request to another agency, or contemplating withholding information under section 18 of the OIA
- Record administrative steps taken when searching for requested information, where this may be appropriate
- Ensure that records of Customs’ rationale behind the application of the public interest test are kept where appropriate
- Ensure that records of relevant telephone and in-person conversations, meetings and discussions over instant messaging platforms, such as Microsoft Teams, are kept on file
- Review the practice of providing official information responses to the Minister for noting 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.
- Develop and finalise an agreement with the Minister’s office on handling departmental OIA requests
- Ensure the Communications 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 Communications team creates and maintains 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 Communications team to ensure they understand their obligations under the OIA
- Ensure messaging from senior leaders reinforces that media information requests handled by the Communications team must adhere to the OIA
Performance monitoring and learning
As part of Customs’ quality assurance processes, the agency’s OIA guidance document requires draft responses to OIA requests to be peer reviewed by managers of the OIA, legal and Communications teams, as well as the relevant Group Manager. This practice can be further improved by implementing a set of quality criteria against which all of Customs’ draft responses to OIA requests can be reviewed.
The high quality of Customs’ OIA responses can also be maintained via introducing quality assurance checks of OIA responses after OIA requests are finalised. I am encouraged by Customs’ advice in response to my provisional opinion that the agency will consider the implementation of a quality assurance process for completed OIA requests.
Customs’ OIA data is compiled by the OIA team with the use of an Excel spreadsheet and reported weekly to the Minister of Customs and monthly to Deputy Chief Executive, International and Governance.
Customs’ OIA reporting can be improved and made more comprehensive by including data on media information requests handled by Customs’ Communications team, along with more data to measure the quality of Customs’ responses to OIA requests. I also suggest that Customs consider moving away from using a spreadsheet to input and track OIA requests and look at alternative options more suited to the volume of requests being received by the agency.
Action points: Performance monitoring and learning
- Develop a quality assurance process for completed OIA requests
- Collect and analyse further qualitative data on the handling of OIA requests
- Include media information requests in OIA statistical reporting
- Consider an alternative (non-spreadsheet) system to track OIA requests and decisions
 See s 17(2) of the Public Records Act 2005