Public servants are like savannah animals avoiding crocodiles in the way they cautiously step around the OIA, says Tony Burton. (Photo: Getty.)

Crocodile in the river: How public servants avoid being eaten by the OIA

When random attacks are only a moment’s inattention away, government officials learn to watch their step when committing anything to the written record, writes Tony Burton.

My guess is that even those who follow politics will struggle to remember the kerfuffle when a 2011 Official Information Act (OIA) request found an email ‘from Treasury’ that appeared to support a higher minimum wage. I remember it clearly because I wrote the email.

The theory is that the OIA creates more open government and limits the ability of officials to act above the law, so is therefore a crucial part of our democracy. If you want to understand why it does not always work as intended you need to understand how people like me experience it and the behaviours that drives.

The email itself was one in a chain between mid and lower ranking officials in Treasury and the Department of Labour (DoL) about the annual minimum wage report to Ministers. By that time the report had become a summary of suggestions from a list of organisations for a new minimum wage level, with well-known views and a cut-and-and-paste-from-last-year summary of arguments offered. DoL did an estimate of the potential unemployment impact for each level using a model so opaque that the estimates were best described as ‘some’, ‘some more’, ‘even more’, etc. The whole exercise was perfunctory

As a Treasury adviser on labour market and welfare issues I was asked to see if DoL could be encouraged to improve the report. I thought, naively as it turned out, that if I discussed evidence in bite-sized chunks some of it might sneak into the report. This was the content of my email. Labour market economists would regard what I wrote as anodyne. They would not all agree with it – academics never all agree on any matter – but it would be unexceptionable. The DoL officials ignored my email and the subsequent meeting when writing their report.

Described this way I imagine the eyes of most readers glazing over. “Conversation on academic evidence between unimportant people makes no difference” is not an attention grabber. But when released through the OIA, in the midst of an election campaign, the issue turned into “Mr Key ‘sat on’ the advice for 18 months and ‘tried to fool people’ by using only a later Labour Department review to back his argument”.

This version became one of the issues in a television debate between the party leaders.

A cursory glance at the emails would have made clear they were not sent to ministers. They did not include any reference to a Treasury report to ministers because there was no report.

In the public service the media reporting had two effects. The minimum wage review continued as before, unperturbed by evidence. Treasury’s response, other than the occasional stern look directed at me from Treasury old timers, was a sentence in the ‘Briefing to the Incoming Minister’ to counter any impression it had supported minimum wage rises. But that was Treasury, and the Minister of Finance was Bill English, who actively encouraged Treasury to provide challenges based on evidence. If I had still been working for the Ministry of Social Development of the mid 2000s, where more than 50 communications staff were employed to control debate about the ministry, I might have lost my job.

Public servants experience the OIA the way savannah animals experience crocodiles lurking under the surface of a river. The animals have to go to the river but do so aware that random attacks are a moment of inattention away. If this metaphor seems over the top, I invite the reader to look over the last few weeks of everything they wrote, typed or texted. Imagine someone had a legal right to publish any three consecutive words, without context or explanation, and with the potential that you might lose your job. Would that make you a little more guarded about what you wrote? Within the public service, versions of this thought experiment are called the “Dom Post test”.

Unsurprisingly public servants take steps to avoid the crocodile. The OIA is meant to include verbal exchanges, but in practice that is hard to enforce. The result is the habit of minimising the written record if there is a risk of failing the Dom Post test. This habit is so endemic it is applied semi-consciously and only noticeable when someone, usually a junior official who has not been fully acculturated, needs to be reminded to “take the discussion off-line”.

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Of course there are many occasions when it is common sense to have a quick chat rather than to draft documents and set up meetings. (And anyone who has wasted time in pointless bureaucratic meetings will wish for more of this common sense.) However, extending this to replacing written comments is not in the spirit of the OIA.

In truth, any criticism of OIA avoidance of this sort needs to recognise it is a pragmatic response by people who want our government institutions to function. Public servants are meant to both serve the minister and have some level of independence. In practice this means some of what they do is not what the minister would want them to do were they simply serving the minister. Strict adherence to the spirit of the OIA would see these differences continuously used to attack the minister. It is hard to see how ministers could use their ministries effectively when the process of generating advice would be so damaging to what they were elected to achieve.

In as much as the OIA puts pressure on public servants to only write what they are personally prepared to defend in the full glare of the public they serve, it’s a good thing. The problem is that’s not the reality of how it is experienced, which means people do not just respond by improving what they write but by trying to avoid the lurking crocodile.

Tony Burton is a former deputy chief economic adviser at Treasury.


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