Official Information (NZ0018)

Commitment 7: Official information
Objective:
To improve the availability of official information by:
• providing advice to the Government on whether to initiate a formal
review of official information legislation
• progressively increasing the proactive release of official information
by publishing responses to requests for information made under the
Official Information Act 1982 (OIA). This commitment builds on
work - undertaken as part of the National Action Plan 2016-2018 -
on official information to make information more accessible, which
promotes good government and trust and confidence in the State
Services.
Ambition:
New Zealanders:
• can have confidence that the regulation of official information
remains fit-for-purpose
• have equitable access to official information released in response to
specific requests.
Status quo:
The Law Commission’s 2012 review of official information legislation
recommended a number of changes to the OIA, some of which resulted in
amendments.
Since the Ombudsman’s 2015 report on OIA practices, the focus has been
on improving agency performance on implementing the letter and the spirit
of the OIA.
Approach:
There have been continued calls to take another look at the legislation.
The conversation and workshops with civil society to develop this Plan also
generated ideas and suggestions to improve official information legislation
and practice. This input will be built on to inform advice to Government
on whether a formal review of official information legislation would be
worthwhile, or whether the focus should instead remain on achieving
practice improvements. Lead agencies: Ministry of Justice and the State Services Commission
Timeline: October 2018 to June 2020
Commitment 7: Official information
OGP Values Public Participation,
Transparency,
Accountability
Verifiable and measurable milestones to fulfil
the commitment
Start date End date
Test the merits of undertaking a review of the
Official Information Act 1982 and provide and
publish advice to Government
Following
the report
back of the
Privacy Bill
(anticipated
November
2018)
June 2019
Achieve a measurable increase in the proactive
publication of official information request responses
October
2018
June 2020
Implement a policy to publish Cabinet papers
proactively within 30 days of final decisions, unless
there are good reasons to withhold specific papers
October
2018
January 2019

7. Official Information [77]

Objective: “To improve the availability of official information by providing advice to the Government on whether to initiate a formal review of official information legislation; and progressively increasing the proactive release of official information by publishing responses to requests for information made under the Official Information Act 1982 (OIA).

This commitment builds on work, undertaken as part of the National Action Plan 2016-2018, on official information to make information more accessible, which promotes good government and trust and confidence in the State Services”.

Milestones:

1. “Test the merits of undertaking a review of the Official Information Act 1982 and provide and publish advice to Government”;
2. “Achieve a measurable increase in the proactive publication of official information request responses”;
3. “Implement a policy to publish Cabinet papers proactively within 30 days of final decisions, unless there are good reasons to withhold specific papers”.

Start Date: October 2018

End Date: June 2020

Context and Objectives

This commitment’s objective is to improve the availability of official information by advising government on whether to initiate a formal review of official legislation and by progressively releasing more responses to OIA requests. Its aim is for the public to have confidence in government’s regulation of information and equitable access to OIA request responses. The commitment responds to ongoing public and international concern about the age of the OIA and availability of online responses to OIA requests. [78]^{, [79]} Previous IRM reports documented these issues and recommended extending the OIA’s scope to include the Office of the Clerk, Parliamentary Services and Officers of Parliament, while retaining parliamentary privilege, in line with recommendations of the Law Commission and others, and building on administrative change since then, such as the Parliamentary Privilege Act 2014. [80]

The Global Right to Information Rating for New Zealand is 51 out of 123 countries and states in August 2019:

“New Zealand's access regime is one that, according to our information, functions better in practice than its legal framework would suggest. The law's major problems include its limited scope (it does not apply to the legislature, the courts, or some bodies within the executive) and the fact that it allows information to be classified by other laws ”. [81]

The Ministry of Justice (MOJ) and the State Services Commission (SSC) will test the merits of undertaking a formal review of the OIA and provide and publish their advice to government, drive increased proactive release of responses to OIA requests and implement government policy to publish Cabinet Papers proactively within 30 days of final decisions unless there are good reasons to withhold specific papers. The activity to release Cabinet Papers is an unexpected milestone as it is beyond the commitment’s objective.

MOJ and SSC officials advised the IRM researcher on 18 February 2019 that they are seeking approval from the Minister of Justice for Milestone 1 activity to involve ‘targeted engagement with groups with expertise in the OIA, plus some government departments and media commentators”. This expanded on the Minister of State Services’ advice as set out in his Cabinet Paper [82] and the Cabinet minute relating to proactive release. [83] They also advised that they would also invite public submissions on the Ministry of Justice’s consultation website, but they did not plan any campaign alerting the public to this invitation. They did not envisage “big public consultation with people and bodies”. [84] They expected Milestone 1 work to be completed in June 2019.

Most stakeholders commenting on this commitment felt the OIA review work is a limited and unambitious step towards OIA reform and expressed concern about its limited public engagement. They want public clarification of what the term “test the merits” means, details of the measures that MOJ and SSC plan to use to test the merits, and any decisions following government’s response added to this commitment’s scope. [85] They sought a full review, addressing implementation issues such as political interference, frivolous questions, a Centre of Expertise for agencies responding to questions and adoption of the Law Commission’s recommendations as described above. They applauded the recent work by the State Services Commission and the Office of the Ombudsman to improve agencies’ practice responding to routine OIA requests.

Proactive publication of OIA request responses increases the availability of official information; and publishing Cabinet Papers realises the previous and current governments’ pledges. The commitment meets OGP’s access to information and public accountability values as it pertains to government-held information, and by publishing responses to requests for information made under the OIA, officials could disclose non-sensitive information that calls upon specific agencies to justify their actions. The Minister of Justice’s plan to carry out targeted engagement meets OGP’s narrower public participation value.

All milestones are specific enough to verify. MOJ advises Milestone 1 will continue as planned despite the Privacy Bill’s late report-back to Parliament on 13 March 2019, and the SSC confirms it has added measurement of Milestone 2 to the six-monthly OIA statistics it releases. [86] Stakeholders recommend also adding measurement of Cabinet paper releases. [87]

If Ministers and all agencies subject to the OIA fully implement Milestones 2 and 3 as designed, the Commitment’s potential impact will be minor. This prediction is based on the results of 2016-2018 action plan’s Commitment 2. [88] Transformational change depends on Milestone 1’s advice to government and government’s subsequent decision. Stakeholders want OIA reform to address the effects of the ‘no surprises policy’, extend proactive release classes, set non-compliance penalties, and develop an OIA release platform.

Next steps

If this commitment is carried forward to the next action plan or if there are improvements to the implementation of this commitment, the IRM researcher recommends that:

• the limited scope of Milestone 1 is expanded to become a full review covering the matters raised in all of New Zealand’s OGP IRM reviews and by stakeholders interviewed for this report;
• measures are taken to deepen and increase engagement with civil society;
• should Milestone 1 continue, new activities which set out next steps following government’s response to Milestone 1’s advice are drawn up;
• implementation of Milestone 3 is measured, as set out in the Cabinet Paper; and the IRM encourages new activities during implementation to:
• acknowledge the required report back to Cabinet on the proactive release of Cabinet Papers policy and its effectiveness by 1 December 2019; and
• for the SSC and the Department of Internal Affairs to work on a possible centralised platform for the release of OIA information. [89]

7. Official information

Substantial:

Aim of the commitment

This commitment sought to improve official information availability via several means: by advising the government on whether to initiate a formal review of official legislation; by proactively releasing more responses to Official Information Act 1982 requests; and by implementing policy to publish cabinet papers proactively. Its ambition was for the public to have both confidence in the government's regulation of information and equitable access to OIA request responses. [71] The commitment reflected the Minister of Justice’s views at the time. [72]

Did it open government?

Marginal

While this commitment substantially completed planned technical improvements, only marginal change is evident in practice to improve official information availability.

For milestone 1, advice to initiate a formal review was provided to the then Minister of Justice in September 2019, [73] but the current Minister was not able to commit to a review before 2023, due initially to “resourcing constraints and an oversubscribed work programme”. [74] A subsequent OIA request later revealed that the deferral would enable the Ministry to “focus resources on electoral projects, as a higher priority”. [75] The initial advice to the Minister was not published until March 2021. [76] As a commentator summarised, despite the published advice supporting the “merits of a review,” the government did not “proceed to the next step,” which “diminished public confidence in the OGP process”. [77]

Milestone 2’s work is now business as usual. Twice a year, TKM releases online statistics, including as open data, on how many of the 118 crown entities and government departments subject to the OIA and monitored by TKM proactively release OIA request responses. [78] Its most recent release for January to June 2021 reveals that 65 of these 118 agencies published proactive OIA responses compared with 56 in the June to December 2020 period, a 16% increase. [79] Between July 2018 and June 2021, the number of published OIA responses from these agencies increased 71% from 1,138 to 1,943 and the number of agencies publishing responses increased 55% from 42 to 65. [80]

While the statistics on the most recent reporting period (January to June 2021) showed improved OIA process outputs from 65 government agencies, they only report on 55% of the 118 NZ government agencies monitored. [81] Stakeholders interviewed by the IRM researcher referred to regular difficulties with OIA compliance by key ministries. [82] For context, 10 agencies handle the bulk of all OIA requests. [83] Stakeholders cite examples of the deadline being extended on the day the response was due, transfers to the right agency only on the day the response was due, and some agencies only replying after receiving a follow-up request. [84]

Issues about the release of OIA responses and transparency of OIA compliance, including for non-routine OIA requests, [85] have been raised regularly since OIA statistics were first released in 2016. [86] An October 2021 media investigation of OIA statistics challenged TKM’s conclusion that 97.8% of requests are released “on time.” The media investigation concluded that 54 (64%) of 84 agencies surveyed counted extensions beyond the limit of 20 business days as “on-time” responses, and that some agencies’ statistics also included quick turnaround media requests which have a different OIA response process. The investigation suggested that to be reported as complying, some agencies were incentivised to extend the time limit. [87] In response, TKM notes that it measures the extent to which responses are provided within legislated timeframes; that the Official Information Act 1982 allows for the extension of response times under certain circumstances; and that there is no claim that “on time” means within 20 working days. [88] These different perspectives indicate a gap between the government’s stated commitment to improve the OIA response process and significant public frustration with timeliness of responses to both routine and non-routine OIA requests.

Milestone 3’s work is becoming business as usual. Cabinet Office Circular CO (18)4 requires that since 2019, Cabinet and Cabinet committee papers and minutes are proactively released and published online within 30 business days of final decisions being taken. [89] TKM advises that all agencies that routinely produce Cabinet papers have locations on their websites for the proactive release of those papers. [90] In practice, some agencies release papers irregularly. Stakeholders reported variation in interpretation of the Cabinet Office circular and the time taken to release items, citing an example of those on the regular lists of Briefing Notes to Ministers, and requests for COVID-19 papers not being released as required in 2021. They praised improved compliance by the intelligence agencies, following the report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain. [91]

This commitment has promoted more proactive releases of information ahead of improving the quality of reporting on OIA responses. Stakeholders have called for release of government data more quickly (ideally proactively), improved quality of reporting (for example, OIA statistics that break down the number of days required for responses), and measurement of the quality of responses. [92] By 2021, most core government agencies already collected or reported much of this additional information, meaning that full reporting of OIA responses could be introduced immediately. [93]

There are ongoing efforts to improve availability. The Public Service Commissioner has stated his intention to expand the set of OIA statistics in 2022 and TKM promotes agencies’ best practices through the Official Information Forum, a community of practice. [94] The new expanded set of statistics could continue the improvements proposed by TKM in 2019 [95] and 2020, [96] and would fulfil the Public Service Commissioner’s statement in September 2021 that “I’d like to get more information out there before it is asked for.” [97]

Urgent next steps are the formal report back to Cabinet on the policy for proactive release of cabinet papers and its effectiveness (due in December 2019) and providing the public with a single location to find government’s OIA and proactive releases. TKM’s list of online locations for OIA responses (latest details up to December 2019) and for cabinet papers (81 agencies to date) [98] could become the first step towards a centralised platform for all government agencies. [99] Neither step is reliant on the uncertain possible OIA review. Civil society stakeholders also want a timeline for carrying out this review, and for it to be carried out independently, not by the Ministry of Justice. The review could include proactive publication policy and secrecy clauses.