This was certainly not where we expected to get to when Sir Jim McLay laid this cornerstone of our democratic system in 1982. Its vital contribution to our freedom and governmental accountability has, over successive administrations, been undermined by fear. Subtle and even blatant political heavying from ministers and officials’ self-protective desire not to cause trouble have led state agencies to increasingly refrain from offering potentially contentious advice, because they know it will become public and embarrass them and/or their minister. Another growing trend has been deliberately to delay compliance with an OIA request, or flat out deny it.
Boshier has reversed the latter trend in his two years in the role, partly by making it clear he will name and shame those who fail to co-operate in good faith with the OIA’s processes. But he’s right to say we need new leadership to restore the Act to full efficacy and public respect. In his briefing to the incoming Government, he has usefully clarified the law as it stands, and as he believes officials should adhere to it. The headline clarification is a presumption that all official information will be released, and released in a timely manner, unless there are special reasons not to. A further one is that officials asked to release something under the OIA must not then ask their ministers whether they may do so. It is their obligation to release it unless exempted, and they are only duty-bound to tell ministers to avoid surprises.
A needlessly grey area has developed where officials infer that apprehension on the part of politicians or their advisers obliges them to delay or withhold. KiwiRail changed its plans to release a report before the election merely because it got the impression from ministerial staff that its release would cause political anxiety. Boshier says ministers and their staff have no right to delay or influence OIA responses. Timeliness is a vital element of the Act’s efficacy, however – and that includes the risk of releasing some information too early.
Boshier makes the compelling point that important creative thinking early in policy discussions is being hampered by fear of out-of-context disclosure. The risk of the media highlighting spicy aspects of early discussions has discouraged the valuable tradition of advice “without fear or favour”. Helen Clark’s Government suffered unfairly when 2008 reports highlighted an official’s recommendation to regulate the size of holes in showerheads. This didn’t make it past the first cull of policymaking, but dogged the Government as an emblem of “nanny state-ism”.
Boshier’s solution is to favour release of information only once proposals have reached the stage where serious work is being done – but crucially, before the time has passed when the public can participate in the process. He wants to avoid “every single provocative comment … floated at the beginning” being released at that time, because he says that has contributed to the dumbing down of advice out of fear. But once the decision-making process is advanced, there are few reasons not to release all the advice – and any wacky or draconian early proposals can be seen in their proper context.
Another welcome clarification is that deliberately withholding information until the final OIA deadline, when one could release the information sooner, is not just bad-faith gamesmanship, but also a breach of the law. We can expect the Ombudsman’s office publicly to call out wilful heel-dragging from now on.
Boshier recently wrote to Prime Minister Jacinda Ardern in relation to a 33-page coalition document that she has refused to release, even though Deputy Prime Minister Winston Peters describes it as containing “directives to ministers”. Boshier is on the record as noting a culture of transparent Government has to start with strong leadership.
Some have called for the Ombudsman’s office to have stronger powers of coercion, including making serious non-compliance an imprisonable offence. But a better buttress to information freedom would be to automate Boshier’s newly elucidated presumption that all information can be released unless it would cause a serious mischief. Why not a system where, by default, all background papers to a governmental decision are released automatically? This could perhaps happen after early consultations, but before legislative proposals are finalised. Rather than relying on people to request information, why not put the onus on a department or minister to seek, via the Ombudsman, permission not to release it?
It is, after all, our information.
This editorial was first published in the December 16, 2017 issue of the New Zealand Listener.