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Those who deliberately breach the OIA should fear more than being mildly criticised by the ombudsman (Image: Tina Tiller)
Those who deliberately breach the OIA should fear more than being mildly criticised by the ombudsman (Image: Tina Tiller)

OPINIONPoliticsDecember 14, 2021

A few simple steps to improve the OIA system

Guest writer
Those who deliberately breach the OIA should fear more than being mildly criticised by the ombudsman (Image: Tina Tiller)
Those who deliberately breach the OIA should fear more than being mildly criticised by the ombudsman (Image: Tina Tiller)

A retired public servant with three decades of experience suggests a ‘fix’ for the OIA system. And it’s not another agency.

The Official Information Act (OIA) has come a long way in almost 40 years. The scale of its use is quite staggering – nearly 26,000 requests in 2020 to agencies covered by the Public Service Commission. Reliable data for additional agencies (eg, local bodies) escaped my limited search skills, but I’m sure you could add another 10,000 or so from that.

It has become an important part of our democratic landscape – for individuals, organisations, political parties in opposition, and journalists. For the latter, in particular good investigative ones with a keen sense of smell, it can often mean an exclusive scoop. If Peter Hughes, the public service commissioner, is to be taken at face value then it’s also apparently working pretty well – some 97% of requests are answered on time.

That didn’t feel right to me, and some good investigative journalism from Stuff recently confirmed my suspicions – ironically using the OIA itself to prove their point. They found unsurprisingly that the 97% calculation includes those requests answered within the extended time frame specified by the answering agency. So timeliness in those cases was measured against the additional bureaucratically imposed timeframe, regardless of how reasonable it was for the agency to extend it in the first place or how reasonable the length of the extension was.

Certainly my own experience as a requestor is that the 20-working-day time limit is a target, not a deadline, and where it is not met it is brushed off as an inevitable consequence of the nature of the request.

Mr Ingles (a pseudonym) wrote for The Spinoff earlier this year about his insider experience of “delays, obfuscations and inexplicable redactions”. As an insider I witnessed the delays, and it was part of my job to ensure there was no obfuscating, and that redactions (information withheld) were justified. But as an outsider I have experienced all three.

Mr Ingles’ solution to these problems is to create an “independent body” to handle all OIA requests, as I understand it in the name of impartiality.

Be careful what you wish for, Mr Ingles! Such a body would need to be enormous to sweep up the OIA work of every agency. Not only that but it would add an unknown period of additional time to the mix due to seeking access to all the relevant information held by an agency or agencies. How could these new super public servants be assured that they got it all, or even that they asked the right agency?

And how, with no specialist knowledge of the subject matter, could they make an assessment of the information against the withholding principles in the OIA, for example, serious damage to the economy or commercial sensitivity? Just not feasible, in my view.

I agree that there is a problem with the implementation of the act. I have seen it from both sides – as an outsider since 2011, I have had to use the ombudsman complaint process on occasion to achieve a suitable outcome. In one instance, instead of the 17 pages that the agency was prepared to release to me (and that was only after I complained to the ombudsman), after the full ombudsman investigation I got the full file, some 5cm thick. But that took almost a year, and I was someone who understood the processes.

But when it comes to “obfuscation and inexplicable redactions” then politics is often the major culprit. Since the mid 1980s (Roger Douglas was one of the first), ministers have routinely staffed their offices, at the senior level at least, with political appointees rather than career public servants. As well, there has been a proliferation of communications advisers and public relations advisers, better categorised as political risk managers.

More often than not this means there is no meaningful understanding of the OIA within those offices. I experienced one office where the elementary rule was to withhold anything that could be remotely politically embarrassing. Forget about the act!

The two seemingly outlandish examples given by Ingles (emails and aide memoires are not allegedly covered by the OIA) are real life. I have experienced them, and successfully shot them down, both as an insider and an outsider. But it all takes time.

This sort of thing is currently playing out between the department of prime minister and cabinet (DPMC) and Stuff (and inevitably, the ombudsman) as DPMC reportedly withheld briefings for the prime minister on the Groundswell protests, claiming “the documents concerned are not ones that get released” as covered by a “longstanding practice” relating to certain types of briefings to the PM. You’ll be har pressed to find any reference within the OIA to such document types or “longstanding practices” . The act considers the content of documents, not the type of document or some alleged practice. An example of pure ignorance/incompetence? Or something more serious – politics-based decision making? The ombudsman will decide.

Another significant factor in is the sheer volume of information created in the electronic age. Good old physical files which used to contain everything relevant seldom exist now, and electronic filing is haphazard. For example, not all emails on an issue would find their way into a central place.

The final significant factor is simply resources. Often the staff best placed to understand and deal with a request are those still working on the very issue that the request relates to. Their priority is almost always the substantive work. Our department of labour mantra that OIA work was “core, not a chore” used to fall on deaf ears. This goes back to the fact that agencies were never given any extra funding to make the OIA work efficiently.

It’s easy to set out all these problems. But how do we fix them?

Personally I think “fix” is too big an ask, but certainly there are ways of making improvements. The act itself is not so much the problem as the agencies administering it.

The key improvement opportunity already lies within the OIA – a reason for not releasing information is that it’s “already publicly available”. So make more of it available online! It does happen to a limited extent already, but it is haphazard. Apparently agencies have a “requirement” to release cabinet papers on behalf of their ministers, but only when the minister has authorised them for release. Well that’s going to work, isn’t it?

The Public Service Commission says that it “encourages” proactive release. At present some agencies classify publication of requests and releases already made as proactive release of information, when it is obviously reactive. Peter Hughes says he “would like to get more information out there before it is asked for”. Well what are you waiting for?

There is also a great private sector (and voluntary) attempt at exposing more official information. FYI publishes all responses to OIA requests made through the website. While this is an excellent initiative and resource, once again it is haphazard in that not enough people know about the website even fewer use it for their OIA request.

Essentially all this haphazard mix of publicly available information should be better organised and mandated. The ultimate mandate would be by legislation. But it’s not straightforward given the myriad types of information and the multiplicity of agencies. But it could be optimised in a staged way.

First, in a non-legislative context, almost immediate steps could be taken if there was the bureaucratic will to do it, and political support. For example, cabinet could make new meaningful rules about ministerial information. Ministers could include proactive release requirements in their expectation documents for agencies. The Public Service Commission could include such requirements or expectations in employment agreements for chief executives, not to mention in the same documents also making OIA compliance and activity part of an agency’s core business.

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Second, an organisation like FYI should be given government funding to expand their reach, both in a publicity and marketing sense and in a capacity and capability sense.

Third, create a general statutory duty on agencies to take all practicable steps to make information publicly available. Support that with a regulated list (i.e, changeable by regulation) of types of information that must be published within a specified time of its creation.

The OIA already starts with a principle of availability. What are we waiting for?

Making the news in 2021: Aung San Suu Kyi, Alexei Navalny, ‘QAnon Shaman’ Jake Angeli and Benjamin Netanyahu (Image: Tina Tiller)
Making the news in 2021: Aung San Suu Kyi, Alexei Navalny, ‘QAnon Shaman’ Jake Angeli and Benjamin Netanyahu (Image: Tina Tiller)

PoliticsDecember 13, 2021

A long 2021: The Bulletin World Weekly year in review

Contributing writer
Making the news in 2021: Aung San Suu Kyi, Alexei Navalny, ‘QAnon Shaman’ Jake Angeli and Benjamin Netanyahu (Image: Tina Tiller)
Making the news in 2021: Aung San Suu Kyi, Alexei Navalny, ‘QAnon Shaman’ Jake Angeli and Benjamin Netanyahu (Image: Tina Tiller)

The Bulletin World Weekly is a newsletter by Peter Bale exclusively for Spinoff members, covering and analysing the most important stories from around the globe. In this special edition, a look back at a tumultuous year.

To get the Bulletin World Weekly in your inbox every week sign up to The Spinoff Members. Know someone else who’d appreciate the World Weekly? Give the gift of a Spinoff membership and your recipient will receive it as a bonus, along with a members tea towel and tote bag.

Historians use the expression “the long 19th century” to describe the origins, events, and lasting impact of a tumultuous century that extended beyond the strict boundaries of dates. It’s become common to talk about the “long World War One” or other critical periods.

I’m applying it to 2021 because it was the year the pandemic solidified and made us realise it is here to stay, and a year in which events from 2020, such as the US presidential election, had an immense impact, and from which profound events will flow into 2022.

As a special issue of the Bulletin World Weekly here’s a chronology of the biggest or most impactful stories we tracked through the year (with an eye to those sometimes less-reported elsewhere), some forecast for 2022 stories, plus a few extras.

A short history of a ‘long’ year

Donald Trump dominated January directly and indirectly. Already once-impeached, he directed his supporters to “fight like hell” and go to the Capitol where they created an insurrection that forced his vice president to cower in a car park rather than overturn a legitimate election. Russian democracy campaigner Alexei Navalny, barely recovered from being poisoned with Novichok returned to Moscow to a Soviet-style show trial and prison. Uganda’s President Yoweri Museveni cut off the internet ahead of an election that secured his hold on power. Ethiopia went to war against its own people in Tigray. By the end of January, 2.3 million people worldwide had died of Covid 19.

A masked man carrying zip-tie handcuffs in the Senate Chamber on January 06, 2021, during the riot inside the US Capitol in Washington, DC.(Photo: Win McNamee/Getty Images)

In February the Myanmar military deposed the elected Nobel Peace Prize-winning premier Aung San Suu Kyi, unleashing violence and a national tragedy that continues today. By the end of the month, 2.6 million people worldwide had died of Covid-19. Ethiopia and Somalia slipped further towards chaos in March. A vast container ship, the Ever Given, blocked the Suez Canal generating a surge of metaphors. The Covid death toll rose to 2.91 million.

In April, Moscow stepped up pressure on Kiev and Ukraine asked to join NATO, reigniting a long-simmering military and diplomatic crisis that may explode in 2022. In an oddly comparable step that was one of the big stories of the year, Beijing increased military flights into Taiwan’s airspace, a crisis that will also linger and heat up in 2022. By the end of April 3.29 million people had died of Covid-19.

May saw Israel attack Hamas targets in the crowded city-state of Gaza in response to a series of attempted rocket strikes, but it may have had more to do with the ultimately failed re-election campaign of Benjamin Netanyahu. Belarus’s leader Alexander Lukashenko, the nodding dog in the back of Putin’s car, forced a civilian jet crossing his airspace to land so he could arrest a dissident — setting a pattern of provocation that extended through the year to a manufactured refugee crisis. The end-of-May death toll from Covid-19 was 3.67 million.

An extraordinary “anyone but Netanyahu” coalition won elections in Israel in June. By the end of that month, 3.9 million people worldwide had died of Covid-19. In July, US forces started a hasty withdrawal from Afghanistan that opened the way for the Taliban to take over Kabul, create chaos in July, and take control in August. In a special World Bulletin, we looked at the history of Afghanistan, the US-led occupation, and the future. By the end of July 4.2 million people had died of Covid, and the toll reached 4.52 million by the end of August.

Texas opened a fresh legal and moral battleground in the fraught culture wars of the United States as August crossed into September, enacting a law effectively banning abortion in the state and allowing, in fact encouraging, vigilantes to confront anyone involved in helping a woman seeking a termination. It, and a comparable law in Mississippi, are set to split the Supreme Court and open a new flank in the attempts of the right wing to challenge hard-won rights. Expect this issue and voting rights as well as Trump’s claims about the 2020 election to go on into 2022.

On the 20th anniversary of the 9/11 Al Qaeda attacks on the Twin Towers and the Pentagon, the World Bulletin looked at the damage done to US prestige by the hasty rush to war afterward, particularly in Iraq. We looked at it again in October when the former Secretary of State Colin Powell died. Also in October, the Financial Times reported China tested an hypersonic missile that could change the global power balance. Expect more in 2022, as well as US military attempts to compete. By the end of September 4.72 million people had died of Covid. The toll rose to 5 million by the end of October.

The media take pictures as a healthcare worker administers a dose of Covid vaccine on June 1, 2021 in Manila, Philippines. (Photo: Ezra Acayan/Getty Images)

Climate change was a focus at the end of October and the start of November, where a lacklustre diplomatic effort by the UK led to a rather lame COP26 summit intended to cement the ambitions of the Paris summit five years ago. It passed much of the buck to another climate conference in Egypt next year. Personally, I found it depressing. It was hard not to agree with Greta Thunberg saying it was all “blah, blah, blah”. Belarus played astoundingly cynical games, ferrying Middle East refugees to create a fake confrontation with the EU. If you, like me, worry about the ability of journalism to hold power to account, this interview with Lukashenko by the BBC’s Steve Rosenberg showed what can be done. By the end of November 5.22 million people worldwide had died from Covid-19, but 4.3 billion people — more than half the world population — had received at least one dose of the vaccine.

When you receive this we will be barely halfway through December. In my experience, big shit happens in December: the Soviet invasion of Afghanistan on December 24, the killing of Romanian dictator Nicolae Ceausescu on the 25th, and the Asian tsunami hit on the 26th in 2004, killing an estimated 230,000 people. I don’t mean to depress you but be ready for happenings in Ukraine, where this week Biden appeared to blink and Putin scored a diplomatic victory; Taiwan, where China has no intention of easing up the pressure on Taipei and on Biden; and the ongoing pandemic and the threat of the fast-spreading omicron variant, offset by the amazing work on vaccination. At least 8.45 billion doses of the potentially life-saving vaccine have been administered to date.

2021 will be remembered for the spread of delta, creating one of the most challenging stories – and commercial environments – in recent memory. It made us rely even more heavily on the support of our members. If you love what we do, please consider donating today. 

A window on the year

For a remarkable reminder of all that we have been through this year, the compilation of the best photography of 2021 from old colleagues at Reuters news agency is astounding. It does that thing where you realise an event you’d half-forgotten really did happen this year. It includes several by Reuters photographer Danish Siddiqui who was killed by the Taliban in Afghanistan.

May I also note that a friend, Maria Ressa of the Philippines site Rappler, received the Nobel Peace Prize in Oslo last week, along with the equally brave Russian journalist Dmitry Muratov. They are exemplars of the idea that journalism – and facts – matter.

Children look at passing aircraft from a makeshift camp near Kabul airport for Afghans fleeing the Taliban, August 14, 2021. (Photo: MARCUS YAM / LOS ANGELES TIMES)

Culture vulture lists for 2021

The New York Times published its 10 best books of the year last week. For more on the picks, it’s worth listening to the New York Times Books Podcast. You may prefer The Guardian Books review of 2021 which are recommended by writers themselves.

Google just published its list of the most-searched terms of the year, including Squid Games, Alec Baldwin, Afghanistan, and Bernie Sanders’ mittens. Here’s a Guardian report on the top international searches – and The Spinoff’s own Tara Ward on the most popular search terms in New Zealand this year.

For what it’s worth, my own recommendations for books I’ve read this year would be Apeirogon by Colum McCann, a fictionalised version of a real relationship between two Israeli and Palestinian fathers who both lost daughters to the conflict; This Pakeha Life, by Auckland academic Alison Jones; and Michael Lewis’s Covid-19 book The Premonition.

It was goodbye to…

In the World Bulletin during 2021 I highlighted a few notable deaths this year; Nikolai Antoshkin, the Soviet helicopter pilot who helped contain the Chernobyl nuclear disaster; Josep Almudéver, the last surviving member of the International Brigade in the Spanish Civil War; AQ Khan, who created the Pakistani nuclear programme but enabled Iranian and North Korea to progress their own nuclear aspirations.

Thanks for reading the World Bulletin in 2021. See you in 2022.

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