“A researcher’s view of New Zealand’s Official Information Act”, International Symposium on Freedom of Information and Privacy
International Symposium on Freedom of Information and Privacy
Auckland, 28 March 2002
A researcher’s view of New Zealand’s Official Information Act
Nicky Hager
During the 20 years since New Zealand’s Official Information Act (OIA) came into force I have made many hundreds of official information requests, covering a wide range of subjects and state organisations. I also have experience of seeking official information in other countries. I would like to share some of these experiences with you.
I will begin by noting the good things about the Official Information Act. First, although our act is not as strong in various ways as the US Freedom of Information Act (FOIA), it has the important advantage that you can request more than just specific existing documents. Under our act you request “information”, not documents: answers to questions, lists of data and so on, whether or not they are contained in a document. Another great strength is that our act is based on the “principle of availablity”, where all information must be released by agencies unless there is an expressly stated exclusion clause which applies to the specific piece of information requested.
The reason why I have used the act so often is that I find it a powerful tool that allows access to a lot of important information. However, my experience has been that the act also has major limitations.
The purpose of the Official Information Act, as stated in section 4, is “to increase progressively the availability of official information to the people of New Zealand” – that is, the intention was that over time information would become more available. Despite 20 years of operation, there has not been a review to investigate whether the act is fulfilling this purpose. My experience is that it is not. While there has undoubtedly been an increase in the total volume of information sloshing around, I think there has been a reduction in the availability of important information that affects people’s lives.
For a while in the 1980s, after the act was passed, I found there was a genuine shift in public service attitudes towards freedom of information. Staff were well trained for Official Information Act work and, mostly, there was a developing culture of openness. The approach of the Labour Government in the late 1980s changed that, and throughout the 1990s there was increasingly closed government. Ministers and officials developed ways of routinely subverting the provisions of the Official Information Act, including delaying information releases and misusing exclusion clauses. My suspicion is that many users of the Act give up before getting their information, and maybe never try again, as it often takes months fighting through the Ombudsman to obtain information that should have been released immediately. I thought things might improve with the election of the current government in 1999, but my personal experience is that there has been little improvement and in some areas it has got worse.
I will run through a list of the ways that I find myself regularly held up or blocked when requesting information – a list that adds up to a sort of “how to” guide for unhelpful government officials. I will conclude that we are long overdue for a review of freedom of information in New Zealand and so, as I go through the list, I will note the areas where legislative and other changes are needed.
Time limits for responses.
The Official Information Act states that departments and Ministers should reply ‘as soon as reasonably practicable, and in any case not later than 20 working days’ [after receipt of a request]. Most departments and Ministers have unilaterally chosen to interpret this as meaning they are not required to reply before 20 working days (the maximum time has become the minimum), even sitting on the reply until the deadline. The majority of my requests take more than 20 working days and often much more. You can complain to the Ombudsman, but that usually takes longer than the delays anyway. Officials have learned they can get away with delays, without sanction, so they are untroubled by time limits. This alone means that for requesters such as deadline-conscious daily journalists the Act is often useless. In a future review of the OIA, there need to be shorter time limits and significant sanctions on agencies and Ministers that do not make reasonable efforts to meet them. Agencies respond to written parliamentary questions in five working days, so I suggest that 10 working days (with the possibility of extensions) is appropriate for OIA requests.
The need to have the Ombudsman’s intervention.
At least half of the time, when the response at last arrives, you find that some or all of the information has been refused – and frequently the parts you want most. This means that, in addition to the delays to date, there is no option but to complain to the Ombudsman and wait up to several months longer while the officials’ decisions are investigated and reviewed. Thus the effective time for responses becomes more like 50-100 working days, and sometimes longer. Some requests take years. I have no doubt that quite often refusals are intended deliberately to delay or put off requesters. The tactical value of stalling for months to avoid public scrutiny is obvious. The issue may well be decided and over, old news, by the time you get your information. The answer here is tightening up the time limits, removing unwarranted exclusion clauses, providing more resources to the Ombudsman’s and Privacy Commissioner’s offices and introducing sanctions that hurt for non-compliance with the act.
3. Unhelpful officials
My experience is that, once the Ombudsman has reviewed the officials’ decisions, I almost always get considerably more information than I did in the initial response. Literally, for over 90% of complaints. Consider what this means. It means that, at least with my requests, officials are – regularly and routinely – being more considerably more restrictive with official information than they should be if they followed the act properly. It should not be necessary to complain to the Ombudsman to get information.
There are two possible reasons for this restrictiveness. The first is the growth of information controllers in government and state agencies: professional “communications” or PR people whose job it is to manage and restrict the information that reaches the public. There is plenty of scope for deliberate bending of Official Information Act requirements for tactical political reasons. Sometimes it is blatant. I recently waited seven months through an Ombudsman’s investigation to get some information from the Ministry of Economic Development (I had initally had a blanket refusal). Yet two weeks before the Minister, Paul Swain, released the information to me, he had his staff drop a bundle of the key papers I had requested to every parliamentary journalist. Why? This is a trick used by Beehive staff to stop the requester, who has done the work of obtaining the information, from being able to write an exclusive story. After waiting seven months and then being scooped by the Press Gallery, there was no point in using the information I finally received. The Ombudsman should be able to impose sanctions for uncooperative and obstructive behaviour.
4. Lack of training of OIA staff
The other possible reason for restrictiveness is lack of understanding of the act. The 1981 Danks Committee Report, which provided the basis for the Official Information Act, argued sensibly that no law would work unless there was co-operation from the agencies; in other words, a culture of freedom of information. In the first years of the OIA there was an Information Authority that actively trained departmental OIA staff. This training was effective at enhancing the culture and practice of freedom of information. Today there is no such training and my impression is that many officials do not understand the act. It often looks as though the officials decide what they would rather not release and then idly thumb through the act looking for a few clauses to cite in justification. These decisions frequently do not stand up to Ombudsman review. The Ombudsman regularly calls for more OIA training. The creation of an equivalent of the former Information Authority would help a lot.
5. Exclusion clauses
Although the OIA is based on the principle of availability – and “increas[ing] progressively the availability” – I have found that the exclusion clauses are being used increasingly to reduce the availability of information. Partly this is deliberate and accidental misinterpretation of the clauses, but also some clauses drafted 20 years ago have turned out to be increasingly restrictive in ways I doubt the drafters anticipated. There are three areas where this trend is most striking.
5.1 COMMERCIAL SENSITIVITY: When the OIA was drafted in the early 1980s, no one could have foreseen how much official information would one day be excluded under the commercial and economic exclusion clauses (6(e) and 9(2)(b)). State-owned enterprises, hospitals, universities, foreign affairs, the environment ministry… you name it, all of these public organisations now claim that large areas of their work is protected from public scrutiny by commercial considerations. If the purposes of the OIA are to be fulfilled into the future – that is, that there is increasing availability of information to allow public participation in decisionmaking and effective government accountability – then these clauses need to be rewritten to give priority to democratic necessities.
5.2 INTERNATIONAL AND SECURITY ISSUES: Likewise, in this era of international agreements on trade and other matters, access to information on these issues is of highest priority. However, section 6(a) and (b) exclusions have grown to be major obstacles to freedom of information, allowing “international relations” secrecy to spead to cover all manner of domestic issues too.
One of my areas of research has been intelligence agencies. In New Zealand, the wording of the OIA is so weighted in favour of secrecy for intelligence agencies that they are, in all important ways, excluded from the Act. The book I wrote on electronic intelligence agencies and their operations contained, on nearly every page, very secret details of these agencies gained from interviews with intelligence staff. I believe that the release of much of the secret information had high public interest value. It showed politicians being misled by officials, international spying operations that had been kept secret from the government and operations that were at odds with stated foreign policies. However, much of this information was classifed as Top Secret and higher than Top Secret, which means, supposedly, that its release would cause damage to New Zealand security and intelligence operations – not “adverse” or “significant” or “serious” damage, but “exceptionally grave” damage. The book came out and has been translated into other languages and reported around the world. It probably embarrassed the agencies concerned, but – as generally is the case with these big secrets – the sky did not fall down and there was in fact no “exceptionally grave” damage or even much damage at all. Intelligence agencies – perhaps like all agencies – have certain legitimate areas where their activities need, at least for a time, to be secret. But the balance needs to be shifted much more in the direction of accountability. The same goes for foreign policy and defence. Otherwise, the only practical option for democratic accountability is going around the laws and obtaining leaked information.
5.4 SECRECY OF GOVERNMENT DECISION-MAKING: The other growth area of government secrecy is the section 9(f) and (g) exclusions. These two often misused clauses allow for information to be withheld to enable “free and frank expression of opinions” between Ministers and officials and to “maintain constitutional conventions” with respect to advice given to Ministers. Ombudsman’s decisions have repeatedly confirmed that neither of these clauses should be interpreted as meaning that all official advice and other documentation may be withheld, but the clauses are nevertheless used over and over to discourage and stall requesters. The first purpose of the Official Information Act is “to enable more effective participation in the making and administration of laws and policies”. Obviously that means being able to have the necessary information to participate before the decisions are made. The current government repeatedly interpretes these clauses as allowing all information on decision-making (including sometimes even that decisions are being considered) to be withheld until after the Cabinet has made its decisions. By that time it is often a bit late to try to participate in the making of the laws and policies.
In each of these areas, and a few others, there is a need for changes to the 20-year old Official Information Act to shift the balance considerably in favour of freedom of information. If anything, information laws should err on the side of openness, not secrecy.
Charging as a means of discouraging requests
When all else fails, officials sometimes use their discretionary power to impose charges for the time it will supposedly take to locate and collate the requested information. Often the proposed charges are absurdly high (many thousands of dollars). However in my experience – as I said, hundreds of requests – I have only ever paid one charge for information. Most departments do not ask for them, Ministers generally never do and so, in my experience, charges are usually only requested where the officials are trying to be particularly unhelpful. In most cases of charging, I have had the charges overturned by an Ombudsman’s review. However, charges do serve as a potential means of at least stalling the requester.
Clearly, government agencies cannot be expected repeatedly to divert their staff for weeks to someone’s OIA requests. What would be desirable here is an equivalent of the US FOIA waivers for public interest requesters (journalists, public interest groups etc) while charges remained an option for other requests.
7. Bad record-keeping inhibiting freedom of information.
Each year there is a greater and greater volume of official information but record-keeping capabilities and archiving techniques are not keeping up. In the 1982 world, when the OIA was introduced, most information was on paper. Now it is mostly not on paper, which makes freedom of information much harder (for instance, with interdepartmental drafts circulating and never being filed as hard copies).
Also, in 1982 there were clerical staff whose job it was to file everything in an orderly way and there was a stricter culture of putting things on the file. In contrast, today much of the business is conducted via short e-mails, a lot of it of little consequence, with inadequate guidelines as to which bits need to be filed. The lack of organised files makes access much harder (and withholding, losing and hiding files easier).
In one recent case, I requested correspondence and minutes of meetings between a Crown Research Institute (CRI) and an industry lobby group over a two year period. The CRI replied that the only way it could fulfill my request was to search through all the computer tapes containing e-mail backups, requiring 96 person days of work which would cost me $20,000. On top of this would be another $20,000 for the cost of leasing computer equipment for the task. And that wasn’t all. The director of the CRI explained that the e-mails had encryption protection, so it would take a further 2,800 days of chargeable time to make the backups readable. In total, over ten years work and a million dollars of charges! From an archive perspective, they almost may as well throw away the tapes now. There is apparently an urgent need for a review of government policies and instructions on record keeping.
8. A review of freedom of information in New Zealand.
My conclusion is that New Zealand is overdue for a thorough review of the freedom of information laws (including the OIA, Local Government Official Information and Meetings Act and other legislation). The terms of reference should clearly state that the point of the review is to improve freedom of information, otherwise there is a risk that the review could be used by people in the government system whose preference is to restrict information. As mentioned, it should cover time limits for responses, the exclusion clauses, official obstructiveness, official record keeping, charging, training, Ombudsman and Privacy Office resources and the creation of a freedom of information training and monitoring organisation.
A good option would be for the official information laws to be reviewed as part of a wider review of freedom of information; allowing progress on related issues such as access to parliamentary information, routine electronic access to government information (without the requirement for OIA requests) and access to public interest information held by private organisations (as in the South African laws). For example, the Australian government website has a search engine allowing searches, without charge, of all parliamentary questions and Hansard transcripts. In New Zealand a private company controls electronic access to this basic public information and you must pay to search it. An independent review process for responses to written parliamentary and select committee questions is also needed. In “e-government”, I think the objective should be that, for instance, unclassified cabinet papers and government decisions will be made available on-line routinely within, say, one week of the decisions.
I want to thank the Privacy Commission for taking the initiative and organising this event. I feel that there has been complacency in New Zealand over the decline of freedom of information. This is a good time for changing that. It will need all the people concerned about freedom of information – many of whom are here – to advocate actively for strengthening the laws and providing the resources needed to implement them.