Yesterday outgoing Ombudsman Peter Boshier published a report, Reflections on the Official Information Act, on his way out the door. The report repeated his favoured mantra that the Act was "fundamentally sound", all problems were issues of culture, and that no legislative change was needed (and especially no changes to his office). Open government advocate Andrew Ecclestone has already done a deep dive into the legislative changes Boshier has advocated in the past, so I'll restrict myself to two points. Firstly, it is quite worrying that the only legislative changes he highlights in his report are those that strengthen the state by giving it impunity to dox its critics and restrict requesters by creating further - and entirely arbitrary - reasons for refusal. And secondly, the primary way we can change the culture of government to be more open is to legislate for it.
The latter ought to be obvious. After all, that's what the Official Information Act was all about: legislating to change the culture from one of secrecy, where telling people what government was doing was literally a crime, to one where "information shall be made available unless there is good reason for withholding it". That principle has been eroded in various ways, or not worked out as well as it should have. But we can absolutely push things back in the other direction by legislating for it. If we don't want public servants to destroy data to hide it from requests, or Ministers or their advisors ordering public servants to lie, we can legislate to make those things crime. If we want proper proactive release, rather than the current half-arsed grace-and-favour system which hides everything and releases nothing, we can legislate for that too. And if we want it to be harder for agencies to refuse or delay requests, we can legislate for that as well. Because while agencies have a clear interest in hiding information, fundamentally public servants will obey the law rather than risk jail, and that is a way of changing the culture.
But its not just the culture of the public service which needs to change - its also the culture of the Ombudsman's office. In the report, Boshier rejects the idea that the idea that his office is toothless (and needs to be replaced by an independent Information Commissioner) as
While it is true that my role is recommendatory only, the OIA imposes on agencies and Ministers a public duty to observe my recommendations. This public duty may be enforced by the Solicitor-General by issuing court proceedings. My predecessors and I have on rare occasions had cause to refer unheeded recommendations to the Solicitor-General for enforcement and this has prompted compliance without the need for court proceedings.Which sounds tough. But how many times has he actually done this? Once. And its worse when you realise that the Ombudsman bends over backwards to avoid issuing formal recommendations which would create such an enforceable duty - instead preferring to resolve almost all complaints informally and by mediation. And the perfect example of this is Health NZ, which the Ombudsman singled out for a litany of unlawful behaviour in his accompanying "timeliness reviews".
The core problem with Health NZ is that they are deliberately delaying OIA responses by a blanket 5-8 working days for Ministerial "review". This is a widespread problem - its also mentioned in DIA's timeliness review, and mentioned in Kāinga ora's. And its a long-standing one. For example, the Ombudsman upheld a complaint against police over this back in 2022, but made no recommendations, "as Police informed him it had amended its ministerial notifications practice during the investigation". Public duty avoided, they then changed them right back, showing the Ombudsman to be useless and toothless. If the Ombudsman had issued a formal recommendation, that wouldn't have happened. But they're too conflict-averse, too focused on mediation, too unwilling to clean out bad behaviour with fire and sword - and so bad behaviour continues and grows.
(To pick another example: seven years ago, I request some information from MFAT. After two investigations by the Ombudsman, they promised they'd talk to a foreign government about ensuring its release. And they just... haven't. They don't respect the watchdog, and they think the promises they make to it can be ignored).
In the case of HealthNZ, the Ombudsman did make a recommendation. But its under the Ombudsmen Act, so no enforceable public duty applies. And of course it applies only to Health NZ, so other agencies are free to ignore it. Which is another example of why we need to replace the mediation-focused Ombudsman system with a judicial one with an Information Commissioner: because while agencies and public servants routinely ignore the Ombudsman, a judicial model will produce actual court orders, which are both far less ignorable, and provide clear legal precedent for other agencies. Which seems far more robust than the current system of urging agencies to "be a good chap".
