National's charter schools bill is curently before select committee. One of the more odious features of the bill is that it makes charter schools secret and unaccountable by exempting them from the Official Information Act. No policy rationale has been provided for this unconstitutional position, but last time round it was pitched as allowing charter schools to avoid "costly and vexatious requests" - which tells us what National really thinks of transparency and accountability.
You'd expect the Ombudsman to have some pretty strong views on this (just as they did last time) - and they do. Their submission points out how this will disadvantage charter school parents and students relative to those in state schools, while removing a key source of information required for them to hold sponsors accountable for the education they're providing and for enforcing their rights in any dispute (for example, when a school makes a questionable disciplinary decision - something which happens all the time). They also point out how unusual it is to have a body subject to the Ombudsmen Act but not the OIA - essentially to be public enough for dispute resolution, but not public enough for transparency. And along the way, they suggest in a couple of comments that this means that charter schools are not going to be able to avoid requests, at least around disputes and the areas sections 22 and 23 would apply to:
If the OIA does not apply, then parents and students would need to seek reasons and relevant information from sponsors in reliance on general principles of reasonable administrative conduct.And
It may be helpful for me to clarify that if the Bill is passed in its current form I would still expect charter schools to deal with requests for information in a way which is administratively reasonable and consistent with those fundamental rights referred to above.What does "administratively reasonable and consistent with... fundamental rights" mean? The Ombudsman is on record (in a case regarding an OIA request by an ineligible person) as saying that the administrative reasonableness basically mean "applying the OIA unless there's a really good reason not to". As for fundamental rights, while the submission refers to the section 14 BORA right to receive information, where there is a dispute, the right to justice means a right to be told the reason for a decision and the rule(s) someone is alleged to have broken. So, while National may try and exempt its corrupt charter schools from the OIA, unless it also exempts them from the BORA, the Ombudsmen Act, and any right to natural justice - which is even more unconstitutional and delegitimising - it sounds like the Ombudsman will force them to provide information anyway. It will just be less transparent, more confusing, more time-consuming, and more expensive for everyone involved. Especially the sponsors, who will have to lawyer up to deal with the Ombudsman far more often than they would otherwise. Which just goes to show: clear legal obligations of transparency are easier for everyone.
