Thursday, July 28, 2022

Why we need an OIA review

Stuff has relaunched its "redacted" series on freedom of information, starting today with an examination of OIA delays, and a look at the government's broken promise of an OIA review. The latter has raised some doubts about whether a review is really necessary, including from Ombudsman Peter Boshier (who thinks its all a matter of bad public servants and that everything would be fine if they were just good chaps), and I agree there are real questions about whether the government can be trusted to meddle in transparency legislation (especially given the attitudes displayed by Ministry of Justice, the agency responsible for the Act). But for those doubting whether we actually need one, there is a very simple answer: the law is now 40 years old.

The OIA is, bluntly, the product of another era. And not the grim, pinched, haunted-by-a-piggy-cackle one we think. The attitudes which shaped it are even older. Alan Danks, the man whose name is on the report which gave us the OIA, was born in 1914. While his report Towards Open Government is a highmark of a liberal trend which had been opening New Zealand up since the 1960's, its also clearly shaped by the authoritarian, monarchist, deferential, anti-democratic attitudes of the society he grew up in, and which he helped undermine. A society where government was top-down, not bottom-up, distant and accountable only at elections (which effectively produced a triennial dictatorship), where foreign affairs and defence were "high matters of state" for kings and their anointed ministers, to be kept out of the mucky hands of the peasantry. Most importantly, a society where all government information was presumed to be secret, and its disclosure criminal.

The OIA (and Danks) changed that, and helped make us into a better, more open, more democratic society. Today, the attitudes underlying many of its withholding grounds seem highly questionable, if not downright suspect. Modern people approaching the same problem are likely to find a different balance between secrecy and transparency than Danks did - and one more in favour of transparency, because it has in many ways become a default.

But its not just about social attitudes. We've had massive constitutional change in that 40 years, most obviously in the form of the BORA and MMP. And the BORA is a particular issue, because it explicitly affirms the right to receive information. Meaning every OIA withholding ground prima facie violates it, and needs to be re-examined to see if it really is a reasonable limit which can be demonstrably justified in a free and democratic society. Its been the law for 30 years now, but that exercise has never taken place. A review would let us do that.

And of course there's the fact that the rest of the world hasn't stood still. The OIA was one of the first right to information laws passed. Now there's 40 years progress overseas with a number of valuable lessons. Other countries make their parliaments, their courts, and even private bodies receiving substantial public funds subject to transparency laws. They have better complaints and enforcement mechanisms. They have legal requirements for proactive publication. We are decidedly behind the times.

None of this of course means we can trust the government to meddle with the OIA. Labour and the Ministry of Justice (the agency responsible for overseeing the Act) have shown their hostility to its values, and National isn't any better. Any review must be kept out of the hands of politicians and officials to ensure it is not captured and used as a vehicle for pushing greater secrecy. It must also be public and transparent, allowing for genuine consultation. That means - Labour - consultation when a policy is being shaped, not afterwards, as a rubberstamp (and it certainly does not mean "select committee submissions". They're a final fix-up of an end-product, not actual consultation). Which suggests that maybe we should just cut the government out of the process entirely, have NGOs and civil society organisations interested in transparency run their own review, use it to draft a bill or series of amendments, and then campaign for its passage.