OIA compliance and practice in Te Kawa Mataaho 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.
Public service leadership on OIA issues
Te Kawa Mataaho Public Service Commission (Te Kawa Mataaho, formerly the State Services Commission) is not only subject to the OIA, but also holds a role in OIA leadership and oversight. It is the lead agency on implementation of the Government’s commitments under the Open Government Partnership (OGP);  and it has a special role under section 46 of the OIA—delegated to it by the Ministry of Justice (MoJ) in 2016—to provide advice and assistance to agencies to operate in accordance with that Act.
Te Kawa Mataaho offers advice and assistance to agencies in a range of ways—it monitors agencies reported OIA performance through the statistics it publishes biannually and proactively offers assistance to agencies that appear to be under-performing. It also has a helpline through which agencies can contact it for advice, and it publishes written guidance for agencies, which it is adding to with a new guide for handling media information requests; in draft at the time I write this report.
Among the written guidance produced for agencies is a guide to the selection and reporting of OIA statistics. This advises agencies to log (and include in OIA performance reporting) only those requests that ‘require considered application of the provisions of the Official Information Act 1982’. Many agencies interpret this as excluding information requests submitted by the media, which are handled by agencies’ media teams. I consider that including media information requests in reported OIA statistics gives a truer picture of their OIA performance. Accordingly, Te Kawa Mataaho should amend its guidance for agencies on OIA statistical reporting to make it clear that media information requests should be included in biannual statistics reported to Te Kawa Mataaho for publication.
Te Kawa Mataaho also runs quarterly ‘Official information (OI) forums’. These allow OIA practitioners to meet and discuss current issues in the OIA landscape and hear from various subject matter experts. In addition to these, Te Kawa Mataaho holds regular, ‘new practitioner’ forums with a focus on training for those new to OIA handling roles. I consider these events hold great value for OIA practitioners and I commend Te Kawa Mataaho for its stewardship of the forums.
Since the 2015/16 reporting year, central government agencies subject to the OIA have been required to report OIA performance data to Te Kawa Mataaho, which publishes statistics biannually. The publication of these statistics has shone a light on agencies’ performance which has driven significant improvements in the reported metrics. The focus has been primarily on reported timeliness (noting that this includes where extensions were made within the statutory 20 working-day maximum timeframe) although Te Kawa Mataaho expanded the range of data in 2016/17 to include the number of OIA responses proactively released by each agency; and complaints made to, and upheld by me.
Although the published statistics have made a significant, positive impact on agencies’ reported timeliness, they do not paint the full picture of agencies’ responsiveness to OIA requests. I consider that it would be highly beneficial to expand the range of reported statistics to include more detailed data about the outcome of requests, such as the number and length of extensions; the number of requests granted in full, withheld in full, and partially granted; and the time from the receipt of a request until the release of information. This would indicate whether the OIA is, in fact, achieving its purpose of progressively increasing the availability of official information. Highlighting a greater range of statistics would doubtlessly result in improvements in those areas, just as publishing timeliness statistics has done.
I am pleased that Te Kawa Mataaho has drawn the same conclusion in relation to expanding the range of reported OIA statistics that would offer greater detail and clarity about agencies’ compliance with the OIA, and the amount of information released under the OIA. Prior to receiving my provisional opinion, Te Kawa Mataaho had already begun developing a plan to expand the OIA statistics regime to include publication of more information about agency compliance with statutory timeframes and the outcome of OIA requests. I am advised this should come into effect for the January to June 2022 reporting period. I commend Te Kawa Mataaho for this initiative, and I am confident this will result in OIA performance improvement across the State Sector.
Action point: Public service leadership on OIA issues
- Amend guidance for agencies on OIA statistical reporting to make it clear that media information requests should be included in biannual statistics reported to Te Kawa Mataaho for publication.
Leadership and culture
Te Kawa Mataaho’s leaders appear to value transparency and actively promote an open culture among their staff. The agency was able to offer a number of examples of internal messaging to staff that foster the spirit of the OIA. Senior leaders commitment to openness was also reflected in the results of my initial survey of staff, in which an overwhelming percentage of respondents said that their leaders were ‘strongly or moderately pro-openness’ and ‘strongly or moderately pro-disclosure under the OIA’.
The result of my post-lockdown staff survey showed a decrease in respondents’ perception of senior leaders’ openness, which may reflect an apparent lack of specific messaging about the OIA and openness during lockdown. I raise this only to demonstrate the importance of consistent and on-going messaging from senior leaders to staff. I encourage the Public Service Commissioner (the Commissioner) and senior leaders to ensure ongoing internal messaging is provided to staff about the importance of the OIA and openness more generally. This will ensure these principles remain front-of-mind for staff, and that the percentage of staff who view their senior leaders as being supportive of openness will continue to grow. In its response to my provisional opinion, Te Kawa Mataaho confirmed its ongoing commitment to providing positive messaging to staff about the OIA and openness.
A commitment to openness is reflected in Te Kawa Mataaho’s messaging to the public through its corporate documents and other website content which includes overarching statements on its commitment to openness and transparency.
Te Kawa Mataaho has a very good OIA Requests webpage. It is easy to access—located only one click from the homepage—and it includes helpful information for requesters. I am pleased that through the course of this investigation, Te Kawa Mataaho has continued to refine its OIA Requests webpage. However, there is still an opportunity for Te Kawa Mataaho to make further improvements. The agency would benefit from adding an overarching ‘statement of principle’ outlining the importance of the OIA and openness, and providing clarity about its approach to charging for the supply of official information. Te Kawa Mataaho could also publish its OIA policies and procedures. In response to my provisional opinion Te Kawa Mataaho published its proactive release policy, which is commendable. I encourage it to also publish any other internal decision making rules it may hold (as detailed in section 22 of the OIA), and include a link to its Proactively Released Information webpage.
Action points: Leadership and culture
- Ensure ongoing messaging from senior leaders to staff about the importance of the OIA, and about openness more generally.
- Review and update the Te Kawa Mataaho website incorporating my suggestions.
Organisation structure, staffing and capability
Te Kawa Mataaho uses a centralised model of OIA processing, wherein OIA requests are handled by the Ministerial Services team with input from subject matter experts in relevant teams. Overall, Te Kawa Mataaho appears to have the staffing capacity and organisational capability to ensure it meets its OIA obligations in a timely manner.
Te Kawa Mataaho’s OIA sign-out process leaves room for ambiguity about who the final decision maker is on OIA responses. In the interests of accountability, and to ensure transparency for the requester, the OIA response should make it clear who made the decision on their requests.
My initial survey of staff revealed that more than half of respondents had either never received OIA training since working at Te Kawa Mataaho, or it had been more than four years since they had received training. Te Kawa Mataaho advised me that its size and centralised OIA-handling model meant it was unnecessary to deliver detailed OIA training to all staff. While detailed training for all staff may not be necessary, I still consider that all agencies, irrespective of size and the OIA-handling model, should deliver OIA induction training to all staff and there should be targeted training for key roles such as subject matter experts, decision makers and the Media team, as well as regular refresher training. Te Kawa Mataaho has advised me that it is implementing a new induction programme that will include more OIA content. The Manager Ministerial Services will also undertake focused OIA training sessions with teams, including the Communications and Engagement team.
Te Kawa Mataaho advised me that information management and record keeping training is provided to all staff at induction. However, nearly 40 percent of respondents to my initial staff survey said they had never received training on record keeping since working at the agency, or it had been more than four years since they had received training. Te Kawa Mataaho should ensure all staff are receiving record keeping training at induction, as well as training on the use of information management systems relevant to their role. I also suggest Te Kawa Mataaho provide information management and record keeping refresher training to all staff on a regular basis.
Action points: Organisation structure, staffing and capability
- Te Kawa Mataaho should ensure that:
- there is written policy or guidance which makes it clear the types of OIA requests on which certain roles are able to make decisions; and
- the signatory on OIA responses is that of the authorised decision maker.
- Ensure targeted OIA training is delivered to:
- subject matter experts who liaise with Ministerial Services on OIA responses;
- decision makers on OIA responses.
- Ensure all staff receive training relevant to their role at induction on record keeping and the use of information management systems.
- Ensure regular refresher training is available on record keeping and the use of information management systems.
Internal policies, procedures and resources
I expect all agencies to have robust practices around the proactive release of information, which should be underpinned by comprehensive policy. This is particularly important for Te Kawa Mataaho as a champion of open government. I am pleased that Te Kawa Mataaho has developed a fairly comprehensive policy, to which I have suggested only a few changes to draw into even closer to best practice. The policy could be enhanced by, for example, adding greater detail about the types of information that should be considered for proactive release.
Te Kawa Mataaho has recently developed an OIA policy, which could be enhanced by including guidance material on technical aspects of the application of the OIA. It clearly has sound practices and knowledgeable staff, but I consider that developing written policy and guidance will anchor and safeguard its practices. Policy and guidance should encompass more than simply the mechanics of logging and closing requests, it should detail the agency’s approach to key aspects of the OIA, including decision making on withholding grounds, charging for the supply of information, considering vexatious requests and requests for urgency, and engaging with requesters, third parties. The OIA policy briefly outlines its approach to interactions with Ministers. I urge Te Kawa Mataaho to continue to enhance its OIA policy and guidance, and to publish these once finalised as a further demonstration of openness.
Good record keeping is a vital enabler of OIA compliance, and information management (IM) systems can make it either easier or more difficult for staff to comply with their record keeping obligations. Te Kawa Mataaho introduced a new IM system—Sharepoint—in 2018. My initial survey of staff occurred the following year. It was interesting to see the difference between staff’s responses to my 2019 survey and my post-lockdown survey in the relation to the IM system. In the latter survey, a greater percentage of staff said they considered it ‘very’ or ‘somewhat easy’ to use the IM system to store, search, find and collate information. This indicates to me that after a period of acclimation, staff became more comfortable and adept in the use of the new IM system. It also appeared fit for purpose while staff were working from home during the 2020 lockdown.
Action points: Internal policies, procedures and resources
- Review and update the proactive release policy to include greater detail about the type of information to be considered for release.
- Enhance the OIA policy and guidance to include the technical matters identified and publish when complete.
Te Kawa Mataaho’s Ministerial Services team demonstrates some excellent practices, and the agency’s reported OIA timeliness is exemplary. I’m particularly impressed by its practice of conducting an initial search for information relevant to a request, then contacting relevant teams to request any further information known to the subject matter experts in that area. In relation to OIA decision making records, Te Kawa Mataaho could improve its practice by ensuring full and accurate records of substantive telephone, face-to-face and other discussions are created and maintained.
OIA practices appeared to continue seamlessly during lockdown, supported by the fact that staff were already familiar with remote working, and found IM systems easy to navigate from home. It also appeared that staff were offered good support on using the IM systems during lockdown.
Information requests from the media are processed by Te Kawa Mataaho’s Communications team. I was pleased to see evidence of excellent practice in terms of the assistance provided to requesters by the agency, and its record keeping practices were generally good. In the context of media information requests, I remind Te Kawa Mataaho that, where a request from the media for information held is refused, section 19 of the OIA must be complied with in all respects, including advising requesters of their right to complain to me.
Te Kawa Mataaho appears to have very strong practices in relation to its interactions with its Minister’s office on departmental OIA requests. I consider that Te Kawa Mataaho’s interpretation of the ‘no surprises’ principle in relation to providing responses on an ‘fyi’ basis to Ministers, represents the true intention of that principle. Its practice is outlined in the newly developed OIA policy, but it should be more clearly detailed to ensure the agency is not left vulnerable in the event that key staff leave or are absent. I strongly encourage Te Kawa Mataaho to enhance this aspect of its OIA policy in order to clarify its practices around Ministerial interactions. Ideally, this would be discussed and agreed with the Minister’s office.
As the lead agency for the Open Government Partnership, Te Kawa Mataaho is a strong advocate for proactively releasing information. While I am strongly supportive of this ethos, it is important that proactively releasing information is seen to be a complement to the OIA, rather than usurping it in terms of importance.
Te Kawa Mataaho has recently reviewed its practices around the accessibility of published OIA responses. I am advised that these are typically published as machine readable PDFs which accommodate the use of assistive technologies. The agency website also makes it clear that information can be requested in different formats. I encourage Te Kawa Mataaho to ensure all proactively released material, not only OIA responses, are searchable and that any visual elements are tagged with alternative text. I also noted that that many of Te Kawa Mataaho’s published documents include a watermark, which can sometimes inhibit the use of assistive technologies. Te Kawa Mataaho has reviewed its practice around watermarking documents, and has advised me it no longer does so. This will help to ensure that proactively released information is optimised for accessibility in line with the New Zealand Government Web Standards.
Action points: Current practices
- Ensure full and accurate records of substantive telephone, face-to-face and other discussions in relation to OIA decision making are created and maintained.
- Continue to develop the written guidance on Te Kawa Mataaho’s interactions with the Minister’s office on departmental OIA requests, and ensure the guidance is discussed and agreed with the Minister’s office.
- Ensure the text of all PDF documents released are searchable and not ‘image only’, and all visual elements are tagged with alternative text.
Performance monitoring and learning
Although it appears that senior leaders are kept generally aware of the OIA requests on-hand, I am concerned that there is little other OIA performance reporting to senior leaders. In response to my provisional opinion, Te Kawa Mataaho advised me that, until it can implement a workflow tool with reporting functionality, it will begin manually collecting an expanding range of data to report to senior leaders, which is acceptable in the interim. I consider that without a full programme of internal reporting, Te Kawa Mataaho is missing the opportunity to collect and analyse data that could help to identify emerging themes or trends; opportunities for process improvements; and proactive release, resourcing, capacity and training issues. I also encourage Te Kawa Mataaho to include all media information requests in its OIA statistical reporting.
Te Kawa Mataaho has a peer review process in place for OIA responses, however, there is also benefit in incorporating quality assurance into the OIA process. Quality assurance is conducted once the process of responding to an OIA request is complete, and it can be used to garner insights about potential improvements in the OIA process which can also feed into performance reporting to senior leaders.
Based on the information it provided to me, it appears that Te Kawa Mataaho has a clear process in place for ensuring the outcome of my investigations are communicated to relevant staff. It would also be beneficial for Te Kawa Mataaho to use the written OIA policy/guidance documents which are under development to embed new information arising from investigations and guidance produced by my office, or updates to relevant legislation.
Action points: Performance monitoring and learning
- Collect and analyse qualitative OIA data and report regularly to senior leadership.
- Ensure the lessons drawn from Ombudsman investigations and guidance are reflected in written OIA resources.
- Develop a quality assurance process after finalisation of OIA requests.