Monday, August 22, 2022

Laughing at the Ombudsman

Back in June, the Ombudsman issued a formal opinion to Police criticising their consistent delay of OIA responses to allow Ministers to be informed under the "no surprises" policy. The Ombudsman found that this was unlawfully and unnecessarily delaying responses, and the police responded by stopping the practice. Which should be a success story: complaint made, practice improved, issue resolved. Except it isn't, because it turns out that having told the Ombudsman they'd stopped doing it, the police simply started delaying responses to please the Minister again:

Police told Stuff and Boshier that they had amended their practices and most requests were now notified to the minister at the same time as they are communicated to the requester.


However, information released to Stuff shows this is not the case. We requested the work logs for the last 50 requests to the agency (between June and August this year).

Just three were sent to the requester and Police Minister Chris Hipkins on the same day. There was a four-day gap in most instances (23), and a one-day delay in many others (12 requests). Six requests were stalled for three days, and four for two days.

In two instances, there was a five and six day hold-up.

And when we asked police, and the government, about the delays it appears they don’t agree with Boshier.

A spokesperson said: “In response to the Ombudsman’s advice, police initially changed its approach, but found that new approach inconsistent with the no surprises convention as more of the OIAs were considered as matters of significance to the Minister of Police than initially expected.

This is simply treating the Ombudsman and the law with contempt. The entire OIA enforcement regime is predicated on agencies following Ombudsman's recommendations (or, less formally, changing their practices so formal recommendations don't need to be made). Instead, we have an agency which just flat-out lies about what it is doing, and shows no shame about it. And we have a Minister who enables it, by making control-freak demands to be kept "informed" of (AKA to exercise an unlawful veto power over) every release, no matter how trivial. Together with today's story about the Ombudsman again telling Corrections that they can't video kids when they're in the shower - having made exactly the same "recommendation" to the same prison previously in 2016 and 2019 - it calls the entire chummy "good chap" model of oversight and enforcement into question.

So how can it be improved? Well, the Health and Safety at Work Act (and various other laws) let regulators accept "enforceable undertakings" to improve practice, which can later be enforced by a court. And the Privacy Act enables the Privacy Commissioner to issue formal compliance notices requiring specific remedial action where the Act has been breached, violation of which is a criminal offence. The primary reason the Ombudsman does not have these powers, in the OIA jurisdiction or any other, is that they are relatively recent innovations, and the Ombudsman's core legislation and mindset is from the 1970's and 1980's. It would not be especially difficult to splice them into the OIA or Ombudsmen Act, and it can be done without reopening cans of worms that we would rather keep closed. And in the face of consistent government non-compliance and outright contempt of its own oversight bodies, if the government refuses to do this, then someone should put up a private member's bill to do it.