In many countries, those who deliberately breach legal requirements to release public information face criminal penalties. New Zealand should consider following suit, argues Graeme Edgeler.

New Zealand’s Official Information Act has a lot going for it. Unlike freedom of information regimes in some other places, it applies to information, not documents, and it isn’t prescriptive about what types of documents can be requested. If it’s both information and official, you can ask for it, and if there’s not a good reason to withhold it, you’re supposed to get it.

There are a few bits that are outdated: the section that allows for requests to be refused because the information sought is about to be released – which was essentially created to cover off when a document isn’t ready to be released because it won’t be back from the printers for a few days – have little relevance when information is usually held electronically. And there are some agencies that aren’t covered at all that could be at least partially included.

But just about every time you will have heard a journalist assert the need to #FixTheOIA, they will have been talking about not the law itself, but the culture of gaming and non-compliance. If agencies want to delay or string things out, they can, even though the law says that shouldn’t happen. Ombudsman processes can be slow. If agencies – or ministers – want to not release a particular bit of information, they can work to try to shoehorn it into one of the exceptions, even if it doesn’t really apply.

Mostly, the OIA works – members of the public use it to get information they need or are interested in, sometimes punctuated by the occasional stuff-up – but in particularly sensitive political questions involving ministers, there are repeated examples of deliberate delays or obfuscation.

One thing New Zealand’s OIA does not do is impose criminal liability on those who deliberately subvert its requirements: those who know that the law requires a department to release information, but who pressures them not to even though they know there is no basis to withhold it.

This is surprisingly unusual. Criminal penalties for intentional breach of legal requirements to release public information arise in most countries with freedom of information law. New Zealand should consider following suit.

The aim of adding criminal offences to the OIA is not really to prosecute those involved in improperly withholding information or improperly pressuring others to withhold information (although if they do, we should), but adding criminal penalties gives public servants involved in these decisions something stronger than the public sector code of conduct to point to when pushing back against pressure to withhold.

Any criminal offence would not cover simple errors, or even incompetence. That can continue to be dealt with through ombudsman criticism. Only those who deliberately and knowingly breach their OIA should face the risk of prosecution and conviction. But those who do should fear more than being mildly criticised by the ombudsman.

From what we know from the excellent reporting about the email that ended Stuart Nash’s ministerial career, this is what seems to have happened: a request was made for information concerning contact Nash had with named people who had donated money to his electorate campaign. In a diligent search of correspondence between Nash and the donors, the email was found, but Nash argued it wasn’t within the scope of the request. That is, the person who had made the request had not actually requested that email under the OIA, because implicitly they had only requested information held by Hon. Stuart Nash, minister of the Crown, and not information held by Stuart Nash MP (MPs are not subject to the OIA).

The idea that Stuart Nash’s emails to donors in his electorate is something he was sending as an MP isn’t laughable. Ministers don’t run for election, candidates do, and they’re running to become MPs. Constituent work and contact with donors is something people don’t do as ministers. When political parties auction off things like morning tea with the prime minister, they tend to auction off morning tea with Chris Hipkins, leader of the Labour Party. The ombudsman may still find the decision was correct, but there are at least strong indications the information related to Nash’s emails that he is aware of as a minister – the information he released about confidential cabinet discussions is something he is only aware of because he attended cabinet. This was not information that the prime minister then announced at a media conference after the decision was made.

I suspect what happened here would not qualify (though that may depend on what the ombudsman uncovers), but the existence of repeated questions in this area suggests more teeth are needed when dealing with deliberately recalcitrant ministers.