Thursday, March 10, 2016

Ombudsman says agencies should discriminate against journalists

Today the Ombudsman released new guidance for handling OIA requests made online. Its a useful document for agencies faced with requests being made through Twitter, Facebook, and FYI, covering things like when requests are received (the moment they hit your inbox or timeline), eligibility ("the eligibility requirement is not about imposing unnecessary barriers to legitimate requests", which is Ombudsman for "don't be a dick"), and whether you should respond electronicly (yes). However, there's also an FYI-specific section on how the prospect of online publication should affect decision-making around requests:

The fact that information will be published online is not a reason in itself for refusing a request
for official information. Publication of information released in response to official information
requests has always been a possibility. Agencies have never been able to control what a requester does with the information they receive (unless there is a valid basis for imposing conditions). However, it may be one factor to take into account in considering whether or not there is good reason to withhold the information.

On the one hand, it is possible that online publication of the information may be more likely to cause prejudice to the interests protected by the withholding grounds. For instance, online publication may be more likely to impinge on the privacy of natural persons, or to unreasonably prejudice the commercial position of a third party, than release to a particular requester with conditions where necessary.

[Emphasis added]

This seems to be a significant and troubling departure from the principles and wording of the Act. The OIA is supposed to be requester-blind; who requests information and what they want to do with it is simply not supposed to factor into decisions about release. It does not list the prospect of publication among its good reasons for withholding. But here, the Ombudsman is saying that actually, the prospect that a government document (or, by implication, some of its contents) will be published may be a good reason to withhold it, or some information from it.

Its not just online requesters who are affected by this. To point out the obvious, journalists publish information from OIA requests all the time (and are gradually getting into the habit of putting the documents themselves online). The Ombudsman has just given every agency guidance saying that they can refuse to release information because of that. I wonder how the media feel about that?

The purpose of the OIA is to make information available to the public. That, of necessity, requires that released documents or their contents ultimately be published. The Ombudsman's advice appears to be contrary to the Act and its purposes, and it needs to be corrected immediately.