If you've used the Official Information Act for any length of time, you will have had an agency egregiously violate the law: ignore your request, issue a bullshit extension for fictitious "consultations" on the last day (or even late), or misapply withholding grounds to keep information secret. The check on this is supposed to be the Ombudsman: you can complain about any OIA decision, and after a year or two, the Ombudsman will say whether it was correct or not, and possibly order information to be released or the agency to apologise. And apart from the delay, that's fine as far as it goes. But somehow, it never seems to change agency behaviour: all too frequently, you find the same agency pulling the same shit on your very next request.
The check on that is meant to be Ministers. When the Ombudsman finishes an investigation, they issue a final opinion (most investigations never get to this stage, being resolved informally or just dumped long before then). And if that opinion is in the requester's favour - that the request should not have been refused, or the agency's decision was otherwise unreasonable or wrong - then they are legally required to report this to the relevant Minister. The theory here is that Ministers are responsible for their agencies, and will therefore take an interest in whether they are breaking the law or not. And if they receive too many formal notifications about illegal OIA violations from an agency, they will tell it to improve its behaviour - if only to get those annoying notifications to stop (and maybe avoid constant bad headlines in the Post).
Or at least, that's how government worked in 1982, when Ministerial responsibility still meant something, and hadn't been diluted by public sector managerialism. But does it work now? For the past month, I've been doing a little research project to find out. I used the Ombudsman's published complaints data for January - June 2023 to compile a list of completed complaints where the investigation was finalised, a final opinion was formed, and recommendations had been made. I then OIA'd the ministers responsible for the relevant agencies asking them for all advice and communications resulting from those notifications. The data (and links to all responses) is here. The headline results:
- 49/56 (87.5%) notifications were simply ignored, generating no correspondence;
- Only 5/56 notifications (9%) resulted in the minister's office showing any interest. 3 of those resulted in the Minister clearly seeking a detailed explanation and ensuring the agency complied with the Ombudsman's ruling. The other two were less clear;
- In one case, an agency proactively contacted the Minister's office in an attempt to cover its arse and undermine the Ombudsman's ruling;
- One ministerial office generated only internal correspondence in response to notification (which was a denial of responsibility).
I was pretty shocked by these results, so I asked the Ombudsman to comment on them. They responded that:
The Ombudsman’s recommendations carry weight. Under section 32 of the Official Information Act, there is a public duty for an agency to comply with them within 21 days. The Chief Ombudsman deals directly with the agency to confirm his recommendations are carried out.Unfortunately, those individual ministers simply do not seem to care. And so while all those "weighty" recommendations from the Ombudsman may produce remedies in individual cases, nothing actually changes.As section 30 of the OIA makes clear, the Chief Ombudsman is required to keep the relevant Minister informed of his findings about an agency. It is up to individual ministers to decide whether any follow up action is required.
What can be done? One option would be to apply the same theory of government at a higher level, by requiring the Ombudsman to notify Parliament - and in particular, the relevant select committee - of every final opinion. This would enable select committees to question ministers about their agency's failures, and hold them to account for their failure to remedy them. But that would require select committees to show the interest that ministers don't, and for ministers to care what select committees think. And I'm not sure that either is true – especially with inbuilt government majorities able to protect Ministers from accountability.
The other alternative is overseas-style judicialisation of the OIA: replace the Ombudsman with a UK-style Information Commissioner, with appeals heard by a special-purpose tribunal and then the courts. Which would mean that rather than just having a mass of individual rulings, we would have actual court orders, and binding legal precedent, which both the law-breaking agency and other agencies would be required to follow. That seems to be more likely to produce systemic change that a theory of government which in practice was abandoned over thirty years ago.
