Tuesday, October 13, 2015

A victory for transparency

Last month, Jane Kelsey and a coalition of NGO's challenged TPP secrecy in court, seeking a judicial review of Tim Groser's refusal to release information about it under the OIA. The court delivered its judgement [PDF] today, and has ordered Groser to review his decision. And the reasons why are pretty interesting.

Firstly, and most importantly, this is not about the merits of the decision to withhold under s6(a) and s6(b). The court hasn't looked at the material in question and decided "actually, it should be released"; instead it has decided that the Minister's decision-making process was deficient, and in at least one case, explicitly unlawful. It was deficient because the Minister didn't actually bother to look at the information in question to decide whether it could be withheld, but simply assumed, on the basis of his knowledge about it, that it could (and should) be, and because he did not comply with any of the statutory consultation provisions before withholding information for substantial collation and research. It was explicitly unlawful because the Minister said he was withholding "anodyne" information not in the public domain which he admitted could be lawfully released. The Act

require[s] the Minister to assess each piece of information requested by Professor Kelsey that was held by the Minister and/or MFAT against the criteria in the Act for withholding official information before that request could be refused.
The court goes on to say:
I also appreciate that MFAT believes that complying with Professor Kelsey’s request in the way envisaged by the Act would have involved substantial effort. That, however, is the price Parliament contemplated when it passed the Act and is a challenge regularly encountered and addressed by public servants who are charged with ensuring requests for official information are dealt with in accordance with the Act. The genuine administrative challenges associated with complying with the Act in this case did not entitle the Minister or MFAT to circumvent their duties under the Act.
So, all you public servants who complain that its just "so hard" to comply with the OIA and a distraction from your "real work"? The High Court says it is your real work and that you should stop whining do your fucking jobs. And that goes for Tim Groser too.

But this doesn't mean that Kelsey has won or that the material will be released. Because the order is simply for the Minister to reconsider his decision. And it is quite open to the Minister to say "this really is substantial collation and research" and explore fixing a charge or extending the deadline. Because this is a court-ordered reconsideration, I suspect they will have to actually offer to do either or both (in that the court won't tolerate faux-consideration anymore than it tolerated faux-review), which means that we'll probably get a price which opens the possibility of crowdfunding. But its worth remembering that MFAT still has an Official Secrets Act mindset so the final release (after paying for their review time) is likely to be small.

Secondly, there's a lot of guidance about interpretation along with the way. In addition to the biggies above, the "serious economic damage" clause in s6(e) is a much higher threshold than that of "prejudice" to international relations, s19(a)(ii) means what it says and requires a more detailed explanation than simply restating the original withholding grounds, and that (contra the Ombudsman) when agencies are "of two minds" about release after conducting the public interest test, then the Principle of Availability says they should release rather than withhold. On the downside, the Court explicitly supported contracting out of the Act, at least with other countries, as it is basicly the reason for s6(b) - which may have the perverse consequence of allowing the government to contract out domesticly as well (because doesn't the Act also contemplate such arrangements with s9(2)(ba)(i)? Though then I guess its "prejudice" vs "necessary", which are two very different tests).

As for the result, it really depends on how many agencies are adopting a Groser-esque blanket-approach to requests and deciding them without reviewing the actual material - and how many of them will think they can continue to get away with it (or have "no option" but to continue to do so because government underfunding means they have too few people for too much work). I expect parts of the public service will be pouty and threaten more charging or administrative rejections. The solution to this is to appeal every such attempt to charge or administrative rejection to the Ombudsman, both so that the merits can be tested, and so that it is clear that it is much easier simply to respond properly to a request than to erect barriers to it. Incentives matter, and we can help create incentives favouring openness over obstructionism.