Wednesday, 14 February 2018

When it was passed in 1982, our Official Information Act was widely applauded and welcomed. It was seen as a positive step (at the height of Muldoonism) that would give the public much greater access to hitherto secret government information, thereby improvinge accountability by making government business and processes more transparent. Over the last thirty-odd years it has generally met its objective, although some major creaks are now starting to become obvious.
During my years in Parliament I worked with the Official Information Act (the OIA) extensively - and also in a variety of different roles. These included being a non-government MP seeking information about some aspect or other of government policy; or a Minister charged with providing such information; or, as an appellant to the Ombudsman urging the overturn of some obviously outrageous decision to deny my ever-so-reasonable request, or as a defendant urging the Ombudsman not to uphold a request to overturn a decision not to release certain information because of its sensitivity. I came to know the OIA pretty well, and, as such, am reasonably well placed to offer some observations about its strengths and weaknesses.
While the role and purpose of the OIA is a fundamental part of our governance structure, the reality is that it is really only non-government politicians and the media, with an occasional irrelevant appearance from some or other otherwise unemployable graduate lawyer fancying themselves as a modern day Mr Haddock of A.P. Herbert fame, who get involved with the OIA. However, this is an issue where the often differing, but occasionally coinciding, interests of the media and the politicians do need to be taken into account and addressed. Our modern Mr Haddocks, though, can be ignored, and left to keep looking for real jobs.
The most obvious criticism of the OIA is that governments, including the present one, can and do play games with it, either by denying or delaying the release of information on a technicality; treating requests so literally as to render them meaningless; or, releasing a swathe of documents at the most inconvenient of times - 3:00 pm on the Friday afternoon of a long weekend is the common classic example here. I have always found such game playing to be petty and silly, and I think it should come to an end. Certainly, it was generally my practice as a Minister to pro-actively release all the major documents of a Budget or major policy decisions in my portfolios within a few weeks of their being made, and to indicate at the time of the policy announcement that such a release would be forthcoming. I do not recall the sky ever falling in as a consequence.
And then there is the scope of the OIA. There has long been criticism at the exclusion of Parliament, and in recent years, there have been questions raised about the exemption for agencies like the Crown Law Office. My view is clear. I see no reason why the Parliamentary Service should be excluded, but I do think Members of Parliament in their roles dealing with constituents and the public and as members of a political party should not be covered by the OIA. Any citizen who seeks to approach an MP, as either a constituent or as an interested member of the public, is entitled to the unconditional assurance that their dealings with the MP will be absolutely protected from disclosure - a standard similar to the Catholic Church's Seal of Confession, if you like. The provisions of other pieces of legislation such as the Privacy Act and the Protected Disclosures Act are important protections here as well. Equally, political parties are not public bodies like government agencies, and therefore should not be subject to the OIA. But in many other areas of their activities MPs are already subject to various forms of accountability - their expenditure, for example - and there is no reason why these areas should not be subject to the OIA.
Similarly, while I do not think it fair or practical that the Courts, the Judiciary, or Crown Law should be subject to the OIA with regard to individual cases - for obvious reasons - nor should the details of legal advice provided to Ministers on specific matters under consideration at the time come within the OIA's ambit, again for obvious reasons, a case can be made to allow for more sunlight in other areas, including when a matter has been resolved.

So what to do? The OIA is a cornerstone of our public accountability structure, so it is important that it is seen credibly in that role. The perception of a genuine commitment to transparency is as important as the reality. It is not necessarily the case at present. Therefore, it is time for a joint working party, involving the Ombudsman's Office, the news media, and the politicians (not just the government of the day) to be convened to prepare a new OIA that upholds its original principles and the good things about the current legislation, but which also modernises its scope, processes, and, if possible, operating culture in the light of contemporary circumstances. And then we should commit in these rapidly changing times, to carrying out a similar review every five years.    

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