Friday, October 31, 2014

MacLennan on fixing the OIA

Journalist and lawyer Catriona MacLennan has some suggestions on Fixing Official Information Act Abuses . She identifies three problems with the law: lack of resources to enforce the law; deliberate flouting of the act; and inadequate understanding of the legislation by some officials. More resources for the Ombudsman should help with the first (though it might be harder than she thinks, given the drop in service levels), and she has a list of suggestions for the other two: an Information Commissioner, reducing the time limit to 15 days (as recommended in 1997), including Parliament, specific rules for the "no surprises" policy, and pushing more proactive release. But she also notes that:

In particular, it is difficult to envisage any sanctions for breaching the act which would outweigh the political stakes involved if a government thinks that holding information back until after an election will assist it at the polls.

She's right and wrong here. Minor sanctions won't influence Ministers, who we already know put their careers before the law. But they will influence the professional public servants who actually do the work. Criminal penalties will give those public servants a reason to resist Ministerial lawbreaking, give them absolute protection from employment sanctions for doign so (because you can't fire someone for refusing to break the law for you), and if Ministers say "I'll handle it", create a clear paper trail which will assist in their prosecution. And if the maximum penalty is two years jail, triggering automatic removal from Parliament on conviction, then that may give even Ministers pause for thought - if only because they won't want to have their future political career reliant on the silence of their past Ministerial advisers.

The trick is persuading Ministers to vote to stick themselves in jail. And that is going to be very, very difficult.