The Chief Ombudsman, Judge Peter Boshier, last week tabled in Parliament the report, Ready or Not, an investigation into the degree to which core public sector agencies achieve compliance with the Official Information Act 1982 (‘OIA’). His investigation coincided with the Government responding to the COVID-19 pandemic.

Overall, the OIA has proven to be fundamentally sound and, in the words of Judge Boshier, ‘a crucial check when the Government was exercising great power over the lives of individual New Zealanders during the pandemic’. Crucially, however, Judge Boshier identified a culture of non-compliance in relation to media requests. He also found a misplaced deference to Ministers, with departments too readily running requests and responses past Ministers’ offices under the ‘no surprises’ convention.

These findings will likely be challenging for Ministers’ offices in particular, requiring a significant change in current practice. For media and others, the findings will be welcomed. Given the media’s role in holding public decision-makers to account, if media requests are dealt with, not only differently but with less openness, then that should concern all of us.

Findings of the report

The OIA is a significant part of New Zealand’s constitutional framework, being the primary framework by which information is made public. It’s default setting requires that all information held by government agencies should be publicly available, unless there is a good reason to withhold it, with those reasons set out in statute.

Overall, the report found that the public sector takes the OIA seriously. Senior leaders are signaling their commitment to the principles of openness and transparency, including by addressing their OIA obligations on their websites and proactively releasing information to the public as part of normal business practice.

Notwithstanding these positive findings, significant gaps were identified in the way public sector agencies respond to journalists, train staff, and keep records. In particular, while most agencies have media teams set up to respond to queries from journalists, the report found there is a widespread misapprehension that media information requests do not fall under the ambit of the OIA. Multiple instances of media teams breaching the OIA were unearthed (the requirement to give reasons for a refusal in particular), illustrating a culture of systematic non-compliance.

OIA handling falls short when it comes to media requests

The report notes the a growing mistrust within news organisations about the practices of agencies to OIA requests. Judge Boshier refers to a ‘false dichotomy’ between media requests for information and OIA requests made by individuals which is fuelling scepticism about the utility of the OIA itself.

From the media’s perspective, it is easy to see how the difference in OIA request-handling practices can be perceived as agencies ‘using the OIA’ to delay the provision of information. Media will usually expect a simple information request to be responded to within hours, but under the OIA, a requestor can legally wait 20 working days (or longer). According to Judge Boshier, longer timeframes to respond to media OIA requests may be due in part to increased complexity of the requests, but also to agencies’ self-imposed processes, which have little or nothing to do with the law itself.  Judge Boshier recommended that public sector media teams require fundamental cultural change which may be aided through targeted training for staff in those teams.

Undue reporting of OIA requests to Ministers

Also referenced in the report is a deference to Ministers that appears to be misplaced. A common practice amongst agencies is to inform the Minister of a decision three to five days before the final date for release of information under the OIA. This puts agencies at risk of breaching their statutory obligation to provide a response to a requestor as soon as reasonably practicable. Further, allowing several days for a Minister to consider a response risks creating a perception that input is being sought from the Minister which may alter the release of the information. Release of information under the OIA is not a matter of ministerial discretion.

The report also found that many agencies did not keep full records of their decision-making process around responding to OIA requests and that OIA training was an area of vulnerability for many agencies. Nine out of the 12 agencies were given action points suggesting improvements such as giving teams targeted, role-specific OIA training which should include promoting awareness of sound recordkeeping to facilitate OIA compliance.

Summary of recommendations

Overall, Judge Boshier suggested a number of recommendations which, in short, include that agencies should:

• ensure that media information requests are handled in accordance with the OIA, and media team training is prioritised;
• develop systems to ensure agencies comply with the legislative requirement to make and communicate their decisions on official information requests as soon as reasonably practicable, including by developing clear processes for dealing with ministerial interactions;
• cease any blanket approaches to providing departmental OIA responses to Ministers under the ‘no surprises’ principle three to five days before the ‘date due’ to the requester;
• actively promote record keeping and ensure training is available on an ongoing basis; and
• review the OIA training needs of staff and ensure sufficient, targeted training is available to staff at all levels.

For any questions relating to the OIA process or public law in general, contact the experts. Linda Clark, Catherine Marks and their team are specialists in public law matters and are on hand to assist.