Wednesday, September 28, 2022

If we can't trust the Ombudsman, who can we trust?

This post has been updated; please see the information at the bottom of the post.

Today the Ombudsman released Ready or Not, a followup to their 2015 report Not a Game of Hide and Seek. And the first revelation in it? That the Ombudsman lied to me.

Last year, I'd grown curious about what problems had been identified in Not a Game of Hide and Seek, and whether they were problems I was still seeing in agencies handling of requests. Unfortunately, unlike subsequent practice reports, the Ombudsman hadn't published these ones. So I asked for them. While the Ombudsman is not covered by the OIA, they have said that they wish to be, and will abide by its spirit, so there was reason to think that they would either release the reports, be spurred to publish them, or give me a reason why not. Instead, they explicitly denied that they existed:

In order to prevent any confusion, it should first be said that there are no individual reports for the twelve agencies you listed in your email. These agencies were investigated between December 2014 and November 2015 as part of the Not a game of hide and seek report. Therefore, there are no ‘subsequent practice reports’ available that relate to the Not a game of hide and seek report because they do not exist.
[Emphasis added]

So I was pretty shocked today to read this in the "Background" section of today's report:

As it was not practicable to examine in detail the practices of all government agencies subject to the Ombudsman’s jurisdiction, 12 government agencies were selected to investigate as being representative of central government agencies... The 12 agencies ultimately were provided with individual reports, and although these reports were not published, the agencies were provided with action points which, if implemented, would lead to improvements in OIA practice.
[Emphasis added]

I find it impossible to reconcile or explain these two statements. If the Ombudsman didn't want to waive investigative secrecy and release these reports, or felt that there was some other good reason to refuse, or had just decided that actually they didn't want to abide by the OIA on this occasion, they could have just said so. Instead, it appears that they lied to me (alternatively, they suffered from an unconscionable record-keeping failure which calls their basic competence into question). The Ombudsman rightly takes a very dim view of agencies who mislead requesters like this. So you can imagine how I feel about being misled by them. And it is Not A Good Look for an agency tasked with policing the integrity of government decision-making. After all, if we can't trust the Ombudsman, who can we trust?

Update (29 September 2022): I have now received a response from the Ombudsman. The key part:

I have now had an opportunity to review what has occurred. I can confirm that the advice you received last year simply was not correct. I apologise unreservedly for this error, which appears to have been the result of a process error.


In sum, I deeply regret that my staff provided you with incorrect information last year and trust that the above helps clarify the position. I have also reinforced to my staff that enquiries of this type ought to be referred to the staff within my office who hold the relevant information and are thus in the best position to help prepare a response to them, to help avoid mistakes of this nature in future.

They will not be releasing the original reports, and that's fine - they've given a good reason to withhold, and as they note they're not subject to the OIA anyway. And hopefully they won't be misleading people in the future.