Politicians and public servants have been trying to skirt or subvert the Official Information Act for about as long as it’s existed.
John Campbell sounded a little incredulous in his interview with education secretary Ellen MacGregor-Reid. She was talking to the Morning Report co-host about a leaked video showing Catherine Law, a school principal seconded to work on the government’s curriculum refresh, urging staff to circumvent the Official Information Act (OIA) by telling them not to put information shared with the office of education minister Erica Stanford into writing. Stanford had insisted that Law’s actions weren’t representative of a broader culture of circumventing the OIA. “Are you inferring this was unilateral and an individual aberration?” Campbell asked Law.
She told him the comments were wrong and that she was eagerly awaiting an ombudsman report into the situation. “What Dr Law said in that video wasn’t OK. Dr Law is not a senior official. Dr Law is not a seasoned public servant… I cannot explain what Dr Law was thinking.”
Journalists hearing those assurances may have sharted out their cornflakes. Trying to get politicians and their officials to release material under the OIA is one of this cursed profession’s most Sisyphean tasks. The horror stories are as numerous as the characterisations Nicola Willis has rejected. At a minimum, OIA responses are delayed to the full extent of the legal 20-working-day deadline. More often than not, they go past it. They’re almost always heavily redacted. Reporters regularly complain to the ombudsman for what should be easily accessible information.
The issue isn’t confined to the education sector. Health NZ was censured recently by chief ombudsman Peter Boshier for repeatedly failing to comply with the OIA. “They are breaking the law by not releasing when they should, and at times, when they’ve said to me alright, we will release, they don’t do it. It’s making me very, very cross at the breach of the law,” he told RNZ.
Despite having a reputation for favouring adherence to the law, NZ Police has historically been one of the worst offenders when it comes to breaching the act. Earlier this year, it told our own Joel MacManus that one of its officers had never raised complaints with mayor Andrew Little over the actions of his councillor Ray Chung during the Wellington floods. As it turned out, the officer had. The police comms team had even drafted a response admitting as much before yoinking it and sending out a denial instead.
Meanwhile, the office of the prime minister and associate health minister Casey Costello have both been criticised by the ombudsman for their opaque handling of missives from lobbyists. In the case of the former, a staff member received advice from Fonterra and Z Energy on his personal email account. It then wasn’t disclosed to journalists who requested documents under the OIA.
The issue extends beyond the current government. In 2019, Stuff ran Redacted, an investigative series by Andrea Vance and Nikki Macdonald on the ways the OIA is abused, which revealed how government ministers meddled to delay responses to journalists. Public servants anonymously admitted they were instructed to interpret OIA requests as narrowly as possible in order to divulge as little information as they feasibly could. One agency deliberately misinterpreted a sitting MP’s OIA request in order to stymie their efforts. At the time, Boshier told Stuff the public service needed to buck up its ideas. “[It should be] encouraging agencies to answer the question ‘Why shouldn’t I release this information?’, as opposed to asking ‘Why should I release this information?’” he said.
Despite that, Vance, now national affairs editor at The Post, says not much has changed in the seven years since. In fact, it may be getting worse, as messaging apps, disappearing messages and increasingly fragmented communications make it easier than ever for people to avoid information getting on the official record. “What concerns me more is the direction of travel,” she says. “At a time when technology should make government records easier to search, store and disclose, we are instead seeing arguments about the cost of finding information being used to restrict access.”
Vance says she now regularly encounters agencies refusing OIA requests after they carry out basic keyword searches, see thousands of results and then tell her there’s too much material to review. She suspects public service cuts may be a factor in the increasing opaqueness, with organisations now too understaffed and strained to comply with their obligations. “And this is happening at precisely the wrong time. Public trust in institutions is under pressure. Technology should mean the government can be more transparent, not less,” she says.
If she was made the information tsar, we’d do things differently. Transparency would be built into policy-making from the beginning rather than being treated as an administrative cost afterward. As things are now though, we’re operating backwards. Policy decisions are being made in the dark, then journalists are tasked with reconstructing them through an increasingly ineffective freedom of information system that officials and politicians are finding easier and easier to evade. It’s almost enough to make you suspect that Catherine Law’s crime wasn’t that she said something particularly wrong or out-of-the-ordinary. It’s that she said it on video.
