Improving Official Information Practices (NZ0006)

Improving official information practices We will improve government agency practices around requests for official information under the Official Information Act (OIA). Objective: To make government information more accessible by adopting a consistent set of agency practices in response to requests for official information. Status quo: Practice around how agencies handle requests for official information is not uniform, agencies are burdened by increasing administrative load around official information requests, and people find it hard to navigate the systems. Ambition: We are committed to improving how government responds to requests for official information.

2. Improving official information practices

Milestones:

•Ensure information about the OIA (how to make requests, etc.) and responses to requests are easy to access on agency websites. This could include development of single OIA web pages for agencies

•Publish OIA statistics (how many requests, time taken to respond, etc.)

•Develop a clear statement of government policy on proactive release of Cabinet papers and related material

•Develop a suite of consistent measures about OIA performance

•Improve access to official information by publishing responses to requests on government websites and developing principles for more proactive release

•Agencies will be supported to deliver through the development of appropriate guidance and training.

Responsible institution: State Services Commission

Supporting institution(s): Ministry of Justice

Start date: October 2016 .

End date: June 2018

Context and Objectives

The New Zealand Official Information Act 1982 (OIA) and the Local Government Official Information Amendment Act 1987 (LGOIMA) each established a regime of openness in central and local government.^{[Note102: Official Information Act 1982, New Zealand Parliamentary Counsel Office, http://www.legislation.govt.nz/act/public/1982/0156/latest/DLM64785.html?src=qs; Local Government Official Information and Meetings Act 1987, New Zealand Parliamentary Counsel Office, http://www.legislation.govt.nz/act/public/1987/0174/latest/DLM122242.html?src=qs.]} They changed government practice from withholding to disclosing official information unless there are good reasons not to do so, and citizens have benefited for thirty years from this ground-breaking change toward openness. Government agencies have standard practices for complying with these Acts. Over this period, the internet and technology have made information much more readily available. New Zealanders now have increased public expectations of openness; they seek proactive release of information without the necessity of anyone asking for it and many state agencies and local authority entities now operate in the marketplace where they deal with, or are in competition with, private organisations.^{[Note103: The Public's Right To Know: Review of the Official Information Legislation, Law Commission, June 2012, http://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20R125.pdf, 8.]}

Proposed changes by the independent New Zealand Law Commission in 2012 to update the legislation and its administration were not adopted by the then Government. These included enhancing guidance about the legislation, simplifying unclear withholding grounds, better protecting commercially sensitive information, encouraging proactive release of public information, improving operational processes, establishing statutory oversight functions, and clarifying the reach of the legislation.^{[Note104: Id, p377.]}

The role of Ministers and their offices in agencies’ decisions to release requested information under the OIA is an issue of public comment. The Press noted on 17 June 2017 that ‘OIA abuses and delays have unfortunately become almost routine.^{[Note105: Philip Matthews, ‘Editorial: There is no excuse for delaying official information,’ Stuff, 17 June 2017, https://www.stuff.co.nz/the-press/opinion/93759469/Editorial-There-is-no-excuse-for-delaying-official-information.]} Former Prime Minister John Key admitted in 2014 that the Government likes to wait the full 20 working days if it is in its interests to do so’.^{[Note106: https://www.radionz.co.nz/news/political/257009/pm-admits-govt-uses-delaying-tactics.]} Preliminary results from 640 responses to a public administration survey by Massey University and Victoria University of Wellington state that ‘it is also clear from our initial analysis that the Official Information Act is influencing behaviour in some departments or agencies and in some Beehive [Ministerial] offices.’ ^{[Note107: Dr Chris Eichbaum, Reader in Government at Victoria University of Wellington; Dominion Post, 8 August 2017, https://www.victoria.ac.nz/news/2017/08/free-and-frank-advice-fast-disappearing.]} The researchers comment that ‘to the extent that some actions by ‘political advisers’ are part of the problem, action could be taken to rein in those of a cavalier disposition and ensure those who occupy these privileged positions are aware of their responsibilities, which include not compromising the capacity of others to discharge theirs’.^{[Note108: Id.]}

Former Prime Minister, Sir Geoffrey Palmer, expressed his view on 24 August 2017 that ‘there are blocks against getting information that in a modern democracy is really quite dangerous’,^{[Note109: 1 News at 6, TVNZ, 24 August 2017.]} and expanded on this in a discussion with the IRM researcher on 1 September 2017, stating that ‘the system is broken’ and that ‘the OIA is a playground for Ministers, that this was not constitutional, and that this had been the case for more than nine years’. He proposed that the OIA should be extended to include Parliamentary Services and the Office of the Clerk, exclude the constituency process, and that an Information Authority should be set up to administer the OIA, endorsing the New Zealand Law Commission’s 2012 administrative recommendation. With the exception of Members of Parliament’s work on behalf of their constituents, the operations of Parliamentary Services and the Office of the Clerk would be covered by the OIA. This would include Ministerial offices and was also raised by others, endorsing the submissions presented by the public when this action plan was developed which also sought improved OIA processes, performance data, proactive release of official information and strengthened OIA training.

This commitment meets the OGP values of access to information and public accountability. It addresses all requests for information under the OIA, it covers both proactive and reactive releases of information and it aims to strengthen the right to information. It is relevant to public accountability because the government will be publishing information that calls upon specific agencies to justify their actions, including how many requests each receives and the time it takes the agency to respond. The IRM researcher notes that government updated this commitment’s ambition in its 2017 mid-term self-assessment document to include ‘enhancing public participation in decision-making’ but did not include any participatory actions to progress this.

Planned activities under this commitment are clear, objectively verifiable and are directly relevant to the stated objective. The commitment’s objective is supported by the development and supply of common OIA and proactive release policy, principles, resources, guidance and training. Clear policy and consistent practices are likely to reduce agencies’ administrative burden around official information requests and make it easier for the public to navigate agencies’ individual OIA systems. Each activity contains clear deliverables; however, the commitment does not identify how the government will measure agency uptake of these changes, nor does it include a process to seek feedback from the public. Furthermore, the commitment does not pick up on the wider OIA scope, Ministerial role, or cultural issues that citizens (and the earlier review) had raised. A more transformative change would also include technological opportunities such as providing a single government website where the public can make OIA requests easily and find agencies’ responses in one place.

If fully implemented this commitment would have a moderate potential impact. It could be argued that this work is only updating existing OIA training, processes and resources, and, therefore, of minor impact. The IRM researcher, however, sees regular reporting on agencies’ OIA response rates, proactive release of Cabinet Papers and related material, and promoting the proactive release of responses to OIA requests as essential. The strong and active executive leadership by the State Services Commissioner and the Ombudsman, as indicated in their public statements and their inclusion of statutory Crown entities to which the OIA applies, suggests they regard this as a major commitment.^{[Note110: ‘Editorial: officials are ratting on the Official Information Act,’ The Dominion Post, 7 February 2017, https://www.stuff.co.nz/dominion-post/comment/editorials/89075405/editorial-officials-are-ratting-on-the-official-information-act. ]}. Not including the Office of the Ombudsman as a Supporting Institution is an omission.

The commitment is limited in scope. Transformative change would be achieved with a Ministerial and executive commitment to amend the legislation to encompass Parliamentary Services and the Office of the Clerk, whilst protecting parliamentary privilege, and the concomitant encouragement of cultural change to open government across the public sector. This would be assisted by the provision of a cross-government OIA request and response website, or other virtual process..

Completion

At the end of the first year, implementation of the commitment is substantially completed and on schedule. The role of the Ombudsman in this work has been clarified. Of the listed activities, three are fully completed: agencies were supplied with information about the OIA and responses to requests made easily accessible on their websites; OIA statistics were published; and policy developed for proactive release of information. In particular:

•The State Services Commission (SSC) and the Office of the Ombudsman announced joint work to improve OIA responsiveness on 20 October 2016.^{[Note111: ‘Media Statement: Joint work to improve OIA responsiveness,’ State Services Commission, 20 October 2016, http://www.ssc.govt.nz/media-statement-joint-work-improve-oia-responsiveness.]} On 29 June 2017, the SSC released guiding information for government agencies to place on their own websites. This guide included tips for those requesting official information. The SSC provided all agencies an .html template to ensure easy access.^{[Note112: http://www.ogp.org.nz/our-progress/publications-reports/supporting-materials/.]}

•In January 2017, the SSC published OIA statistics from 110 government agencies,^{[Note113: http://www.ssc.govt.nz/official-information-statistics. Note that this site only lists the most recent release.]} and the Ombudsman published OIA complaints received against Ministers and agencies.^{[Note114: http://www.ombudsman.parliament.nz/resources-and-publications/oia-complaints-data. Six-monthly report]} These statistics, which will be updated every six months, are an accountability league table—the public can see how well each agency is applying the OIA, and which agencies are making information increasingly accessible.

· The Department of Prime Minister and Cabinet (DPMC) updated the Cabinet Manual to include government policy on the proactive release of Cabinet papers^{[Note115: Cabinet Manual: 2017, Cabinet Office, https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, paras 8.14-8.19.]} and the SSC and DPMC released guidance on proactive release of official information on their websites.^{[Note116: ‘CabGuide: Proactive release of Cabinet material,’ Department of the Prime Minister and Cabinet, 11 August 2017, https://dpmc.govt.nz/publications/proactive-release-cabinet-material; ‘Proactive Release of Official Information: Agency Guidance,’ State Services Commission, https://www.ssc.govt.nz/sites/all/files/OIA%20PROACTIVE%20GUIDANCE.pdf.]}

•DPMC released Cabinet Office Notice (15)3 on the proactive release of Cabinet papers on the internal government website, but not publicly. These policy statements are clear but not mandatory, meaning that agencies can choose not to apply them. They state that Cabinet papers and minutes may be released proactively with the approval of the relevant portfolio minister. All Cabinet papers are deemed within scope, except for those on Ministerial overseas travel, appointments, and legislation (draft Bills and regulations).

There is progress toward a suite of consistent measures about OIA performance and support, such as development of appropriate guidance and training to agencies. The SSC assured the IRM researcher that it has worked on definitions with agencies and is currently completing the development of an agency self-assessment tool on official information capability. The SSC is piloting this self-assessment tool with agencies and has developed a prototype self-assessment tool. The IRM researcher suggests it would be helpful if these self-assessment tools were piloted with the public.

While this commitment’s milestones do not include the Ombudsman’s work, the Office’s work programme over the period of this review is relevant. Of particular note is the July 2017 Model protocol on dealing with OIA requests involving ministers^{[Note117: Office of the Ombudsman. Model protocol on dealing with OIA requests involving ministers, http://www.ombudsman.parliament.nz/system/paperclip/document_files/document_files/2395/original/model_protocol_july_2017.pdf?1509069063.]} to be read with the updated guidance on Dealing with OIA requests involving Ministers.^{[Note118: Office of the Ombudsman. Dealing with OIA requests involving Ministers, http://www.ombudsman.parliament.nz/system/paperclip/document_files/document_files/2285/original/oia_requests_involving_ministers_july_2017.pdf?1501125635.]} The Ombudsman advises that this guidance was developed as a consequence of the issues identified in his predecessor’s report Not a Game of Hide and Seek.^{[Note119: Office of the Ombudsman, Not a Game of Hide and Seek, December 2015, http://www.ombudsman.parliament.nz/ckeditor_assets/attachments/399/oia_report_not_a_game_of_hide_and_seek.pdf?1449533820.]} The Office also instigated an investigation of an agency’s processing of an OIA request in response to public concern following media suggestion of improper interference of the Minister’s office on the decision to refuse the request.^{[Note120: http://www.ombudsman.parliament.nz/system/paperclip/document_files/document_files/2403/original/456080_-_kiwirail_s_processing_of_a_request_for_official_information__v2_.pdf?1510089478.]} It regularly reviews and updates its OIA guidance, provides advice and training and publishes case notes and full opinions.^{[Note121: Office of the Ombudsman. Submission to the OGP on the OGP IRM New Zealand Progress Report 2016-2018 Version for Public Comment.]}

Early Results

Government has made significant progress on its ambition to improve agencies’ OIA practices. There is ongoing media coverage about the OIA statistics proposals,^{[Note122: ‘Editorial: Will a new plan to rescue freedom of information really work?,’ The Dominion Post, 24 October 2016, https://www.stuff.co.nz/dominion-post/comment/editorials/85627024/editorial-will-a-new-plan-to-rescue-freedom-of-information-really-work.]} but the other activities have had little publicity beyond reports to the EAP and media statements on SSC’s website.^{[Note123: How agencies will respond to information requests,’ State Services Commission, 29 June 2017, https://www.ssc.govt.nz/how-agencies-will-respond-information-requests; ‘Tips for requesting official information,’ State Services Commission, 29 June 2017, https://www.ssc.govt.nz/tips-requesting-official-information.]} By the end of the 30 June 2017 evaluation period, the IRM researcher had assessed the early impact of the completed commitment activities two, three, and five:

Activity two: The OIA statistics were released by the SSC and the Ombudsman in January 2017 and included information like logged requests completed during the period (including requests subsequently transferred to another agency), the extent to which responses were provided within legislated timeframe, and more. Further information on differences among agencies was also released with the statistics. Released OIA statistics were reported in metropolitan newspapers and interviewed stakeholders had positive responses.

Activity three: An external stakeholder noted that the government unilaterally created the government policy on the proactive release of Cabinet papers (and related material) and it is not binding. Because the policy’s language seems weighted toward protection rather than release, the same stakeholder sought specific guidelines to promote the proactive release in agencies.^{[Note124: Steven Price, 21 August 2017, interview with IRM researcher.]} Similarly, another stakeholder proposed a regular process and timetable for Cabinet Paper release..

Activity five: Nine (27%) of the 33 departments surveyed are publishing OIA request responses on their websites. The Treasury and Statistics New Zealand have been doing so since 2015.

In sum, stakeholders generally saw this commitment as a commendable first step forward in developing common OIA compliance practice across government. Some saw it merely as a token gesture and wanted stronger government action committing to the purpose of the OIA. Others felt the proposed policy changes strengthened the OIA and sought actions in the next action plan to implement them. Internet New Zealand noted the age of the OIA legislation, commenting that it was written before the Internet came into existence, and recommended a ‘look at its intent, beef up the presumption of disclosure, then let the technology work’.^{[Note125: Internet NZ, 6 September 2017, interview with IRM researcher.]}

Next Steps

The IRM researcher recommends that a clear statement of government policy on the proactive release of Cabinet papers (and related material) is confirmed by the new government, as the policy only applies to the pre-23 September 2017 government. The IRM researcher recommends that the next action plan prioritise three key aspects: it should specify steps for monitoring agencies’ adoption of these actions, it should test whether this commitment has met its ambition by seeking public feedback, and it should address the broader outstanding OIA issues raised by stakeholders. The following activities are recommended:

•include in future OIA compliance statistics the numbers of requests withheld, actual time taken to respond (including applying a 20-day response process), and the number transferred to Ministers’ offices;

•initiate work to amend the OIA legislation to encompass Parliamentary Services and the Office of the Clerk, whilst retaining parliamentary privilege, in line with the recommendations by the Law Commission report in 2012^{[Note126: The Public's Right To Know: Review of the Official Information Legislation, Law Commission, Recommendations, http://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20R125.pdf, 124-129.]} and others, and building on administrative and legislative developments since then such as the Parliamentary Privilege Act 2014;

•add proactive release to the intent of the OIA and LGOIMA, simplifying unclear withholding grounds, and better protecting commercially sensitive information;

•address the ongoing machinery of government question raised in the Law Commission reports, and by others, which asks whether there is a need for an Information Authority with statutory oversight functions, and considers whether the Office of the Ombudsman and the SSC have taken on those roles, and the impact of this;

•review and provide a cross-government (including local government) OIA request and response website or a virtual process to achieve that; and

•create a cultural change programme which encourages government officials to apply the new guidance and adopt the open government principles in the OIA and LGOIMA.

2. Improving official information practices

Commitment Aim:

Through consistent agency practice when responding to the Official Information Act 1982 (OIA) requests, the government aimed to make government information more accessible. [Note15: See definition of Official Information at http://www.legislation.govt.nz/act/public/1982/0156/latest/whole.html#DL..., Section 2 (1)] More specifically, the commitment aimed to improve OIA guidance and make it easier to access on agencies’ websites. The commitment also called for developing policy on the proactive release of Cabinet papers and providing guidance and training to help agencies comply with the OIA.

Status

Midterm: Substantial

The government completed Milestones 1-3. The State Services Commission (SSC) prepared online guidance for agencies to publish on their websites. The guidance covered how to submit an Official Information Act (OIA) request and how the response should be provided (Milestone 1). The SSC started publishing OIA compliance statistics (Milestone 2) every six months. The Office of the Ombudsman published statistics about complaints received against ministers and agencies and issued a range of OIA guidance on its website. The National-led government added policy for the proactive release of information to the 2017 Cabinet Manual (Milestone 3). For more information, see the 2016–2018 IRM midterm report. [Note16: “Independent Reporting Mechanism (IRM): New Zealand Progress Report 2016–2018,” Open Government Partnership, https://www.opengovpartnership.org/wp-content/uploads/2001/01/New-Zealand_MidTe.... ]

End of term: Complete

The government completed all milestones. The SSC and the Office of the Ombudsman published guidance and biannual Official Information Act (OIA) response statistics (Milestone 2). The new Coalition government strengthened the policy for the proactive release of Cabinet papers in September 2018 (Milestone 3). [Note17: “Government to Proactively Release Cabinet Papers—and Open Government Action Plan to Be Issued,” Releases, Beehive.govt.nz, https://www.beehive.govt.nz/release/government-proactively-release-cabin.... ] The SSC released detailed performance guidance (Milestone 4), [Note18: “Selection and Reporting of Official Information Act Statistics: Agency Guidance,” State Services Commission, http://www.ssc.govt.nz/sites/all/files/Selection-Reporting-of-OIA-Statis..., accessed 17 November 2018.]principles, and advice on proactive release (Milestone 5). It also provided training resources, [Note19: “Proactive Release of Official Information: Agency Guidance,” State Services Commission, https://www.ssc.govt.nz/sites/all/files/OIA%20PROACTIVE%20GUIDANCE.pdf, accessed 23 November 2018.] a capability development toolkit, [Note20: “Capability Development Toolkit,” State Services Commission, http://ssc.govt.nz/official-information-toolkit, accessed 23 November 2018.] and case studies describing OIA best practice (all Milestone 6). [Note21: “Centralising the OIA Function—the Ministry of Education’s Success Story,” State Services Commission, http://www.ssc.govt.nz/sites/all/files/oia-case-study-education.pdf; “Proactively Releasing Extensive Industry Data and Information—The Electricity Authority’s Approach,” State Services Commission, http://www.ssc.govt.nz/sites/all/files/oia-case-study-electricity-author... The SSC coordinated two OIA forums in 2017 for government agency staff subject to the OIA, ran workshops in December 2017 on its capability development toolkit and facilitated a forum on proactive release in August 2018 (Milestones 5 and 6). [Note22: “OIA Forum,” State Services Commission, http://ssc.govt.nz/oia-forum, accessed 10 July 2018.]

The forums and workshops, intended for all Crown entities and government department subject to the OIA, were well attended, as were induction events on the OIA for ministerial staff after the September 2017 general election. [Note23: Email from the State Services Commission on 15 November 2018 that 60 staff attended the January 2017 Official Information Act (OIA) Forum, 42 attended the May 2017 forum, 42 attended the December 2017 workshops on proactive release policy, 35 registered for the December 2017 workshop, 84 attended the August 2017 OIA Forum for Leaders on proactive release, 150 attended the August 2018 Practitioners Forum, and 99 attended the October 2018 Forum for Leaders on proactive release of Cabinet papers.]

The Office of the Ombudsman continued parallel work, which was not part of this action plan commitment. It released regular complaints statistics and OIA legislation and subject guides, provided advice and training and published case notes and full opinions. [Note24: “Guides,” Office of the Ombudsman, http://www.ombudsman.parliament.nz/resources-and-publications/guides.] Its Official Information Legislation guides released over this period covered how to provide free and frank advice, [Note25: “New Guides—‘Good Government’ Withholding Grounds,” Office of the Ombudsman, 1 March 2018, http://www.ombudsman.parliament.nz/newsroom/item/new-guides-good-governm... respond to frivolous or vexatious requests, [Note26: “New Guide—Frivolous, Vexatious and Trivial,” Office of the Ombudsman, 18 June 2018, http://www.ombudsman.parliament.nz/newsroom/item/new-guide-frivolous-vex... and how to protect confidential advice. [Note27: http://www.ombudsman.parliament.nz/system/paperclip/document_files/docum... , accessed 19 July 2018.] The office’s work to audit agencies’ OIA capabilities and practices now includes agencies with responsibilities under the Local Government Official Information and Meetings Act of 1987. [Note28: “Three New OIA/LGOIMA Investigations Underway—Public Feedback Wanted,” Office of the Ombudsman, 9 October 2018, http://www.ombudsman.parliament.nz/newsroom/item/three-new-oia-lgoima-in..., accessed 11 October 2018.]

Did It Open Government?

Access to information: Marginal
Public Accountability: Marginal

The government has stated publicly that it wants improved Official Information Act (OIA) practice to address public frustration with making OIA requests. The ombudsman and the head of the Department of the Prime Minister and Cabinet have stated that “we are working to put our house in order.” [Note29: Andrew Kibblewhite and Peter Boshier, “Free and Frank Advice and the Official Information Act: Balancing Competing Principles of Good Government,” Policy Quarterly 14, no. 2 (May 2018): 3–9, https://www.victoria.ac.nz/__data/assets/pdf_file/0006/1500828/Kibblewhi.... ]The ombudsman’s independent investigations continue to promote public accountability. [Note30: For example: “Request for Document Related to Coalition Negotiations between Labour and New Zealand First,” Office of the Ombudsman, 14 December 2017, http://www.ombudsman.parliament.nz/system/paperclip/document_files/docum..., accessed 19 July 2018.]The State Services Commissioner regularly seeks better results by government agencies. [Note31: For example, “Latest Official Information Act Statistics Released,” State Services Commission, 5 September 2018, http://ssc.govt.nz/latest-official-information-act-statistics-released.]

With respect to access to information, practical advice on how to make an OIA request appears more consistent. Desk research by the IRM researcher reveals that 31 of the 34 departmental websites (91 percent) offer at least an OIA email address. Twenty-six (76 percent) offer the same or similar OIA request advice. [Note32: IRM research of central government agencies’ websites on 6 September 2017 and 9 July 2018.] However, a quarter offer inadequate advice. Three (9 percent) do not refer viewers to the OIA at all, [Note33: Education Review Office, Ministry for Pacific Peoples, and Social Investment Agency.] and five (15 percent) only provide an email address. [Note34: Crown Law Office, Government Communications Security Bureau, Ministry of Education, Ministry of Foreign Affairs and Trade, and Ministry of Transport.] A small minority—including Oranga Tamariki, the Ministry of Defence, and the State Services Commission (SSC)—has OIA request information on their website home pages.

Compliance for routine OIA request responses has improved marginally. [Note35: “Latest Official Information Act Statistics Release.”] Some departments disclose more information. Desk research by the IRM researcher reveals that 12 (35 percent) of the 34 departments now provide OIA responses online (up from 27 percent in June 2017). Nine (26 percent) proactively release official information online. However, as of 5 August 2018, only seven (21 percent) public service departments are fully compliant. That is, they publish advice on making OIA requests and responses to OIA requests, and proactively release official information. [Note36: Ministry of Business, Innovation and Employment—immigration group; Ministry of Education (though minimal requesting advice), Ministry of Primary Industries (though intermittent proactive releases), Ministry of Social Development, Oranga Tamariki, State Services Commission, and the Treasury.] It should be noted that the number of complaints to the Ombudsman about agencies extending the time limit to respond to an OIA request increased by 150%. [Note37: See analysis by Andrew Ecclestone at https://proactivelyopen.org/2018/09/04/openness-and-official-information..., 4 September 2018.]

The Council of Trade Unions noted some government departments’ progress toward proactive publication of official information. However, it noted that such progress has been uneven. The council concluded that in the absence of clear or enforceable directions from the government, progress on proactive publication has been marginal. [Note38: Email to the IRM researcher from the Council of Trade Unions, 12 October 2018.]

Some stakeholders report that OIA requests for other than routine information “continue to be treated with obstruction and delay.” [Note39: Twitter, #FixTheOIA, 20 July 2018. ] One senior journalist stated that “any information that might be politically sensitive either to their political masters or to the agency itself still seems to be withheld.” [Note40: In response to the IRM researcher’s email survey to journalists, 19 July 2018.] Others reported reluctance to release or active redaction of official information requested under the OIA. For example, an interviewee reported 100 percent redaction of an official document. [Note41: Zac Fleming, “Zac filed an OIA and It Came Painted Black,” RNZ, 20 July 2018, https://www.radionz.co.nz/national/programmes/checkpoint/audio/201865454... While redaction could be required in some cases, the process for deciding that appears inconsistent.

Operation Burnham in Afghanistan serves as an ongoing example of withheld information. On 21–22 August 2010, New Zealand Special Air Service troops and other nations’ forces operated as part of the International Security Assistance Force. [Note42: Ongoing investigative journalism of allegations that New Zealand forces committed war crimes against civilians in two villages, extensive OIA requests by the media, and an investigation by the ombudsman.] A current review by former Supreme Court judge Sir Terence Arnold and former prime minister Sir Geoffrey Palmer is, amongst many other matters, considering the accuracy of public statements made by the New Zealand Defence Force. [Note43: “Approval for Inquiry into Operation Burnham,” Beehive.govt.nz, 11 April 2018, https://www.beehive.govt.nz/release/approval-inquiry-operation-burnham]

With respect to public accountability, the Coalition government has created an open government portfolio and [Note44: The Minister of State Services also has a specific open government portfolio.] retained the previous government’s policy on proactive release. The government also announced that Cabinet papers will be proactively released within 30 business days of the Cabinet decision, unless there is good reason not to publish. [Note45: “Government to Proactively Release Cabinet Papers—and Open Government Action Plan to Be Issued,” Beehive.govt.nz, 18 September 2018, https://www.beehive.govt.nz/release/government-proactively-release-cabin.... ]A summary of ministerial diaries will also be released. [Note46: “Government to Proactively Release Ministerial Diaries,” Beehive.govt.nz, 10 December 2018, https://www.beehive.govt.nz/release/government-proactively-release-minis...

Nevertheless, senior journalists expressed concern about public accountability. One journalist wrote that officials or ministers are not held accountable for “obstruction and delay and just plain breaking the law.” That same journalist wrote that “there is no penalty for those who do not meet the requirements of the law.” [Note47: “Has Coalition Kept Open Government Promise?” National Business Review, 5 July 2018, https://www.nbr.co.nz/clare-curran.]The Public Service Association, which represents 70,000 workers in central government, wants the number of declined OIA requests to be publicly released, “as this would be a useful quality check.” [Note48: “OIA Improvement Good News—but More Needed,” Scoop Politics, 27 February 2018, http://www.scoop.co.nz/stories/PO1802/S00323/oia-improvement-good-news-b.... ]

In summary, at this stage, there is marginal change. Improved government practice requires more time and further change in OIA reporting and measurement of coherent outcomes. For example, the government could report more on the number and duration of notified extensions to OIA requests in its compliance reports. [Note49: Mark Hanna, “Official Information Kept Secret Too Long,” Honest Universe, 20 August 2018, https://honestuniverse.com/2018/08/20/official-information-kept-secret-t... The impact of the SSC’s guidance on OIA statistics, urging agencies to collect more data than reported in the current statistics, is not yet evident. [Note50: “Selection and Reporting of Official Information Act Statistics: Agency Guidance,” State Services Commission, http://ssc.govt.nz/sites/all/files/Selection-Reporting-of-OIA-Statistics.... ] The number of complaints (697) in the Ombudsman’s September 2018 complaints statistics rose 30 percent from the July–December 2016 period (538 complaints). [Note51: “Ombudsman Releases Latest OIA Data,” Office of the Ombudsman, 5 September 2018, http://www.ombudsman.parliament.nz/newsroom/item/ombudsman-releases-late..., accessed 23 November 2018.] This increase supports the State Services Commissioner’s September 2018 plea for improved practice. [Note52: See note 17.]

Carried Forward?

The IRM researcher recommends the State Services Commissioner add measures to assess open government to the performance contracts for all public service departmental chief executives. This would enforce his statement that “New Zealanders expect government agencies to be open and transparent.” [Note53: State Services Commissioner, http://www.ssc.govt.nz/official-information-act-response-times-continue-..., 27 February 2018.]

Commitment 7 in the 2018–2020 national action plan could lead to advice for the government on whether to initiate a formal review of official information legislation. It would also progressively increase the proactive release of information. Commitment 7 would implement government policy to publish Cabinet papers proactively within 30 days of final decisions (unless there are good reasons to withhold specific papers).

The following updated recommendation from the IRM midterm report remains relevant for this Commitment 7:

Initiate work to amend the OIA legislation to encompass Parliamentary Services, the Office of the Clerk, the Ombudsman and the Controller and Auditor General, whilst retaining parliamentary privilege, in line with the recommendations by the Law Commission report in 2012 and others, and building on administrative and legislative developments since then such as the Parliamentary Privilege Act 2014.