The Official Information Act has always been a battle between requesters seeking information, and governments seeking to control it. Information is power, so Ministers and government agencies want to manage what is released and when, for their own convenience, and legality and democracy be damned. Their most recent tactic for this is to hide behind "proactive release": the OIA allows requests to be refused if "the information requested is or will soon be publicly available", the government will release it sometime, and so requests can be refused.
The problem, of course, is that these government releases are frequently (or deliberately planned to be) too late to be helpful when a policy issue is live, and of course they are a carefully redacted package which leaves out as much as possible. And when people are seeking information to help them participate in decision-making - for example, in a select committee process - the result can be downright undemocratic. Effectively, the OIA's withholding grounds are being used to subvert and defeat the law's purposes.
This isn't just a problem with the current government - though it has grown worse under them - it has been going on for years. And now the Ombudsman seems to be really pushing back against it. There's long-standing rulings against abusing the "publicly available" clause to prevent participation in decision-making, but in the last few years things have got tougher. In 2023 the Ombudsman issued a casenote in which they said:
The bottom line is that a decision to release information proactively does not absolve a decision-maker of their responsibilities to a requester under the OIA. The discretion to refuse a request under section 18(d) must be notified properly and exercised reasonably, and with regard to the particular circumstances of each case. In this instance, the decision on the request was made outside the statutory timeframe. It also did not specify the reason for refusal, consider the requested information that would not be included in the information to be published, or advise that the published information would contain redactions. All this occurred in the context of a genuine request for urgency.So, not only do agencies need to pay attention to context and participation rights; they also cannot refuse information under section 18(d) unless all of the information requested will be included in the release, and they must advise in advance of the release of any redactions and the reason for them. That's pretty tough, and I currently have three active complaints against agencies who have failed to meet those standards. But on Monday the Ombudsman released a new
- There must be a clear release date in order to refuse. Vague promises of "soon" and endlessly-changing target dates are not enough.
- The proactive release cannot include redactions: "Unless it is certain that all requested information will be released in full the grounds in section 18(d) are not made out." [My emphasis]
[They also ruled that "a desire on a Minister’s part to release that material at a later date" is not a good reason to refuse, and that if material is ready for release with redactions, then it should be released].
It will take some time for this ruling to percolate through the public service. But when it does, it should effectively kill this particular scam, as proactive releases always include redactions. So, agencies will need to actually respond to requests properly, rather than using future incomplete release as an excuse to refuse.
In the meantime: if an agency has given you the run-around with this bullshit, complain. That's what makes the system work better. That's how things get fixed. And if public servants and Ministers don't like it, they can easily avoid it, by making better decisions.
