Thursday, July 09, 2020

A transparency agenda

On Tuesday, after two years of pissing about, Justice Minister Andrew Little promised to rewrite the Official Information Act. It is unclear whether this was a government promise, or a Labour Party election promise - and Little played stupid games rather than giving a straight answer when asked directly. But given current polling, and the fact that no-one is likely to seriously oppose such a policy, its likely to happen. Which raises the question: what do we want from a rewrite? So, in the hope of starting a conversation on the topic, here's my stab at an initial answer:

  1. One Act, covering both central and local government.
  2. A clear, principles-based test for coverage (as used in the Public Records Act), rather than the current system of scheduling agencies individually. Expansion to cover currently excluded agencies, including Parliament and the Governor-General.
  3. No conclusive withholding grounds. All withholding grounds should be subject to the public interest test. "Constitutional" grounds should be re-examined and ideally repealed.
  4. Enforcement by an independent Information Commissioner on the UK model, rather than the Ombudsman.
  5. Criminal penalties for egregious breaches, on the Canadian model.
There are other changes, but these are my top five. Hopefully others can suggest better ones.

As for the reasons, 1 and 4 were recommended by the Law Commission, and on the latter we can also add the fact that the Ombudsman's mediation approach is simply not suitable for what is essentially an enforcement role. 2 was also (mostly) recommended by the Law Commission, though I've gone further in applying it to the Governor-General (because they are supposed to work for us, and therefore they should be subject to the Act).

As for 3: the OIA was the ultimate outcome of the Danks Report, which was a good, solid principled look at transparency. But it was written in 1980 - 40 years ago - and its primary author was born over a century ago. They were on the cutting edge of liberalism and transparency for 1980, the crest of a wave which had been opening up New Zealand since the 1960's. But at the same time, they were products of and operating within an authoritarian culture, where government was top-down and separate, something done to us rather than by us. And it shows. It shows when they assume that some reasons for secrecy (such as "international relations" or "economic interests") are absolute and shouldn't be balanced against the public interest in disclosure. These reasons may be strong, but the idea that they're absolute just smacks of an outdated ideology which says that matters of "high policy" are for kings and ministers, not dirty peasants. And it shows when they say that government "needs... to be able to take advice and to deliberate on it, in private, and without fear of premature disclosure", or when they just assume that everything to do with the monarchy is secret and that Executive Council deliberations are and ought to be protected by a medieval oath. Forty years on, we're entitled to ask "really?", and assess those authoritarian assumptions against the Act's goals of improving accountability and participation. And to modern eyes, I think we will find them wanting.

...which also highlights the real need: a proper process. The Act needs a full, independent review, equivalent in scope to the Danks Report, and with full public participation. Because its our Act, covering our government. So we should have a real say in shaping it.