Friday, May 22, 2015

An abuse of the OIA

In the wake of revelations that Prime Minister John Key had systematically and repeatedly bullied, sexually harassed and assaulted a cafe waitress, the New Zealand Herald published a piece exposing the victim. It seemed like retribution, and the involvement of dirty politics operative Rachel Glucina added to that impression. But the Prime Minister denied any involvement. Oddly, though, when asked about it under the Official Information Act, he clammed up, refusing to release any information because

It is not the practice of the media team or the Prime Minister to divulge details of the communications with journalists. This would also extend to any communications the Prime Minister or the media team has had with Rachel Glucina. Therefore, any information relevant to the scope of your request is withheld under the following grounds of the Official Information Act: [s9(2)(a) and s9(2)(ba)]

The problem? Neither of those sections is applicable here. Section 9(2)(a) protects the privacy of natural persons. It covers personal information - usually names and phone numbers of public servants, but also more detailed information where its held. If the Prime Minister disclosed personal information about his victim to a journalist, then it could be withheld under this ground - but the rest of the conversation, including the fact that it could be disclosed, could not be. There's no privacy interest in the official acts of government ministers - and by refusing the request on these grounds and implicitly accepting that the information withheld was official information, the prime Minister has admitted that any leak to his pet smearer was an official act.

As for confidentiality, the Ombudsman's guidelines are crystal clear on this: this clause (and related ones) exist to protect information given to the government. It simply does not apply to information given by them. A government agency simply cannot exempt itself from the OIA by claiming that its actions are "confidential", and to allow it to do so would make a mockery of the law. (And no, journalistic privilege does not apply - that applies to journalists, not sources).

The requester should complain to the Ombudsman. meanwhile, I've had some ideas for other ways of getting to the bottom of this.