Friday, August 22, 2014

The most bullshit OIA response ever

On July 30, we learned via Question Time that Murray McCully had allowed an email informing him that the Malaysian government was not waiving Muhammad Rizalman’s diplomatic immunity to sit unread in his mailbox for an indeterminate amount of time. I immediately fired off an OIA seeking one simple fact: the time and date that that email was opened and read. Today, at 16:45 - dump time - I received the response from McCully's office. And it is the most bullshit OIA response I have ever received.

The request has been refused under sections 6(a) (international relations), 9(2)(a) (privacy), 9(2)(g)(i) (free and frank advice), 9(2)(ba)(i) (subject to an obligation of confidence), and 9(2)(h) (legal privilege). The problem? None of these grounds can possibly apply:

  • 6(a) doesn't apply because the information sought simply doesn't relate to foreign relations. It relates to one action (or rather, inaction) of a New Zealand government Minister. The content of the email could be covered by that ground, but its the metadata that has been asked for, and some of that metadata (and the existence of the email itself) is in the public domain.
  • 9(2)(a) does not apply because the information sought is not personal information, but information about an official action (or inaction) of a government Minister. Actions performed in public office are by definition not "private".
  • 9(2)(g)(i) does not apply because the information sought is purely factual, not an expression of opinion.
  • 9(2)(ba)(i) does not apply because there is no obligation of confidence involved. Again, this is an official action (or inaction) of a government Minister, not information collected from an outside source.
  • 9(2)(h) does not apply because the information sought simply is not subject to legal privilege. The date and time the Minister deigned to read his email is not legal advice, and it is an abuse of the term to pretend that it is.
And this applies whether the email was opened and read by the Minister or his staff. So what's going on? Sadly, the point here isn't to lawfully withhold the information; instead its just to delay the inevitable release by throwing the kitchen sink at it and hoping that the requester is intimidated (I expect that its also a form response given to everyone requesting information on the topic, regardless of their actual request). And the sad thing is, it will probably work. I'll complain to the Ombudsman, of course - but it will take a week to even get a number, and a month before an investigator can take time to actually look at it (and then years to get a result). By which time any chance of electoral accountability for the Minister's apparent laxness will have passed. The system simply does not work when it most needs to. And that is a deeply depressing thought. Update (3/9/2014): contrary to my dismal expectations, the Ombudsman is handling the case urgently, and I may get a response before the election.