Back in December, I drew attention to the secrecy clause in the Mental Health and Wellbeing Commission Bill, which is currently before select committee. I sent off the usual OIA request to try and learn the justification for this clause, and while there's no specific advice document saying so, the response letter provides an attempt at justification:
For the Commission to effectively carry out its functions, the Commission's powers to obtain information are stronger than those under the Act. For instance, the Commission can obtain commercially sensitive information that may be withheld under the Act, such as decisions on funding or information about Crown entities, including district health boards. This form of information is important for the Commission to build a picture of service and system performance.
Clause 16 is not intended to override the Act or limit the application of the Act to information held by the Commission. Given these stronger powers to obtain information, clause 16 provides restraints to ensure that the Commission does not release information from other agencies that those agencies could reasonably withhold under the Act. For instance, if the Commission obtained commercial information from a government agency that could reasonably be withheld under the Act, the Commission could not release that information unless the grounds in clause 16 were met.
[Emphasis added]
While its arguable that the information-gathering powers are stronger than those in the OIA, given the ability of agencies to outright refuse if it can be "properly withheld" under numerous clauses of the OIA (language that seems ripe for gaming), this is at least an attempt to justify secrecy. Unfortunately, what it boils down to is public sector dysfunction: government agencies not trusting one another to make proper decisions under the OIA, and so legislating for secrecy (or, given that information can be released by consent of the originating agency, originator control). But again, why should the public pay the cost of that?
Also interesting: none of this is actually reflected in the advice provided. Its not in the notes about the need for information gathering powers. Its not in the notes about their early discussion with the Office of the Ombudsman. There's no mention of it in the Cabinet Paper approving the Bill (paragraph 37-42), or in the resulting Cabinet Minute (paragraph 6). Its not in the departmental disclosure statement. And yet, by time they get round to circulating a draft to the Ombudsman for feedback in September, its obviously there in some form, and while clause numbers have changed, it looks as if the Ombudsman's advice on the issue was ignored. Which obviously isn't satisfactory.
The good news is that the Ministry of Health is now aware of the problem, and has said that it will work with the select committee to "ensure the relevant provisions reflect the intent that the Act will apply to the Commission." Hopefully that means they'll be making some changes to the secrecy clause to explicitly protect the public's right to know.
