When Te Kawa Mataaho Public Service Commission introduced its OIA statistics in 2017, one of the concerns was that agencies would start managing to what was measured, rather than obeying the law. In particular, the focus on raw timeliness and the lack of statistics on average and median response time and extensions would lead to agencies unlawfully extending requests to avoid them being classed as late. So internal administrative failures would be covered by extensions for "consultations", and delays would become routine.
I've just experienced exactly this behaviour from the Ministry of Education: a request - ironicly, for information about OIA statistics - was extended for five working days for "consultations" yesterday. They then responded today, after one working day, and admitted that the delay was because "further consultations were required to finalise the decision on your request. The consultation required was with senior decision makers". Which is basicly an admission that this extension was due to internal administrative failure, unnecessary and unlawful.
In their response, the Ministry helpfully pointed me at their answers to parliamentary estimates hearings as a source of statistics. The OIA stuff starts on page 96,and makes it crystal clear what is going on:
The Ministry now answers around 40% of requests outside the statutory 20 working day timeframe. They report a 23 working day average response time, but also that over 99% of their requests are "on-time". And the reason for that is because almost all of those late requests - 299 in 2019/20 - were extended.
Were these extensions necessary? My experience suggests not. But beyond that, the extension clause of the OIA was intended to cover unusual or extraordinary circumstances, not routine slackness and administrative failure. When an agency is extending 40% of its requests, it suggests that it is abusing the law, juking the stats to make itself look good. It gets away with it because the published stats are poor enough to let them hide it (and no-one, not even MPs, looks at estimates hearing documents), hardly anyone complains about extensions, and when they do complain the Ombudsman resolves it informally rather than actually investigating (or closes it because the information has been released by the time they get round to it, making an investigation "unnecessary"). And because agencies get away with it, they keep doing it, and so you get a 23-day average response time, which is prima facie evidence of serious illegality.
How can we fix this? Better stats would make it more obvious (and I'll try and do some digging through estimates documents to get a better picture). But also: if your OIA request is extended for "consultations", complain. Because nothing will change unless you do.
