Another outrageous abuse of the OIA

Two weeks ago the Ombudsman released his final opinion on the Prime Minister's unlawful hiding of information around his corrupt climate impunity law, and he was not impressed. As a followup, The Post filed another OIA with the Prime Minister, seeking correspondence between the PM, his "forgetful" adviser, and the Department of Internal Affairs (which hosts Ministerial Services and his his nominal employer). But the regime clearly wants to bury this information, because they have extended the request for 64 working days:

However, it was not until last week when branch performance director Penny Langley wrote back to extend the statutory timeframe by 64 working days.

Langley said “the consultations necessary to make a decision” meant DIA could not reasonably respond within the original deadline.

The extension, dated July 3, means the request is not due to be answered until October 7.

...which means that when they are inevitably late, or announce that a decision has been made but release will happen later, there will be no time to force release before the November 7 election.

This is an outrageous abuse of the OIA. It is also prima facie unlawful. The OIA is clear: extensions must be "for a reasonable period of time having regard to the circumstances". what's "reasonable"? The Ombudsman is equally clear:

Where Parliament has specifically mandated third party consultation on OIA requests, those parties have been required to respond ‘within 10 working days’. In its review of the official information legislation, the Law Commission suggested a minimum 5 working days’ notice. From this, it can be inferred that 5–10 working days would generally be regarded as a reasonable period of time within which to provide comment.

While the Ombudsman notes that more or less time might be appropriate depending on the circumstances, it is difficult to imagine circumstances which would justify 64 working days, and those which can be imagined - the person simply being unavailable for a protracted period of time - would also make it perfectly reasonable for the agency to simply make the decision itself without consulting at all.

DIA of course refuses to provide any justification for its decision, which in itself seems to be a violation of s23 OIA, and invites the natural suspicion that there is none (or rather, none which would withstand public scrutiny).

The Post has no doubt complained to the Ombudsman already about this, but for the rest of us its a reminder of how extensions are routinely abused, and how you should immediately complain about them. And if you're not sure about what to say, I have specific guidance for extension complaints here.

Completely unsurprising

Back in May, we learned that climate polluters had bought themselves an exemption from the law (an exemption that will be passed through its first reading and sent to select committee under urgency this week), lobbying the Prime Minister in secret for a special law change in their favour. The Ombudsman has now completed their investigation of the failure to release that lobbying, and they are not impressed:

The Ombudsman has released a damning report into the failure of the Prime Minister’s Office to release a written briefing its chief policy adviser had received ahead of a controversial law change.

His report reveals that the adviser - who received the briefing note in hard copy and to his personal email address - was personally consulted on the request for information, but did not provide it.

The Ombudsman has referred the matter to the chief archivist and says it is “surprising” that the adviser does not recall the meetings in which the document was handed over.

The Ombudsman is being polite here. Because it is very clear what happened: the ministerial adviser lied to protect himself and his boss. And then he lied to the Ombudsman about lying, pretending he didn't remember. And the only people surprised by that are people who have to pretend, by virtue of their position, that the government gives one wet fart for the law.

The adviser's initial actions, in getting official documents sent to his private email account and then failing to create a full and accurate record, were a crime. That crime needs to be prosecuted. And while we're at it, we need to make non-compliance with the OIA a crime in its own right, defined as a "corrupt practice" in the Electoral Act, so that Ministers convicted of breaking it will be automatically removed from parliament.

Meanwhile, the next time anyone in power whines about trust in government declining, they can blame the Prime Minister and his staff. Because they've shown conclusively that those in power are corrupt, untrustworthy criminals. And only a fool would trust them.

Parliament fails to defend transparency

The Economic Development, Science and Innovation Committee has reported back on the Commerce (Promoting Competition and Other Matters) Amendment Bill. The bill makes various changes to competition law, which the National-dominated committee has naturally gutted. It also includes an odious secrecy clause, effectively granting the Commerce Commission a ten year exemption from the OIA, which is renewable, meaning it is really an indefinite exemption. The case for this was exceedingly weak, it was denounced as "unnecessary and excessive" by the Ombudsman, and it seems to have been driven by misunderstanding of and hostility to transparency from senior Commission staff (here are the receipts; if you keep scrolling you'll also see they also admitted that it was completely unnecessary). So what did the committee thing? Rather than standing up for transparency or conducting a first-principles analysis, they simply split the difference, reducing the exemption to five years. But its still renewable, meaning its still effectively indefinite, unless the commission fails to do the paperwork).

In talking about the Fisheries Amendment Bill, which also included a secrecy clause, the Ombudsman noted that:

In circumstances where the OIA already protects the relevant interests, only an extraordinary harm to those interests would justify a permanent exclusion of information from the scope of the OIA.

In this case, the OIA also protects the relevant interests, and the Commission (in advice it attempted to keep secret) admits that. There is no extraordinary harm to justify exclusion. Secrecy cannot be justified.

Using austerity to attack democracy II

Back in March, Newsroom's Sam Sachdeva reported that the regime was planning to use high costs as an excuse to limit access to the Official Information Act, and had commissioned consultants to build them a case. Obviously, I was quite curious about this, so I fired off a series of OIA requests to government agencies. Some were about costs, and revealed (unsurprisingly) that no-one (at least, no-one in the sample of core government agencies I checked) had any idea how much the OIA cost them, and that no-one was counting. Some, aimed at understanding recent large increases, were about the types of requests received, and when they had started being counted in statistics, and they were quite illuminating. And of course there was a request for the policy advice underlying the regime's plans. A request for Te Kawa Mataaho's advice got bounced to Ministry of Justice - saving me the effort of asking them directly - where it was delayed, and then delayed, and then delayed again. They finally responded yesterday, having illegally delayed the response until a related proactive release was signed off.

The response letter, with links to the released documents, is here. There's a lot of emails (some of which are significant), a couple of contracts, and notes from a meeting with the Ombudsman which suggests the regime's intent is to use this as an excuse to declare requesters "vexatious" - something both the Law Commission and the Ombudsman have opposed in the past. The Ombudsman is clear, both there and elsewhere, that one of the drivers of costs is increasingly convoluted agency review and sign-off procedures, where every response is scrutinised by multiple layers of management for arse-covering and "no surprises" reasons. This frequently results in delays, and it has been a frequent topic of the Ombudsman's practice reviews.

As for the costs themselves, they're in the proactively released Tregaskis Brown report and accompanying briefing. You hire consultants to deliver the answers you want, and TBL has delivered in spades, with a headline cost estimate of

$183.6 million for the 2024/25 financial year, within a possible range of $175 million – $250 million depending on estimated complexity of OIA requests.

They've calculated this by (roughly) taking the number of requests, estimating the proportion per agency which are complex (expensive) vs routine (cheap), and multiplied by the relevant cost per request, based on Australian data. They correctly highlight that 77% of requests come from 6 agencies (Police, Natural Hazards Commission (EQC), Department of Corrections, NZ Defence Force, Fire and Emergency NZ, and NZ Customs Service), and (sensibly) recommend further work to understand both actual costs, and what is driving them, as well as strengthening proactive release. Those bits are fine, but the cost estimate is absolutely absurd. How? The accompanying A3 (p10 of the proactive release) estimates the police's annual OIA costs at $50 million. But the police are actually one of the few agencies we have good OIA cost data for! A November 2025 request made on FYI, the public OIA request site, included both the numbers of requests processed, and the staff numbers and costs for both the police Ministerial Services OIA group, and the Information Requests Service Group (IRSG), for exactly the time period TBL is looking at. Ministerial services processed 1014 requests in the second half of 2024, and 832 in the first half of 2025, for a total of 1846 in 2024-25. IRSG processed 28921 and 25280 respectively, for a total of 54201. (Yes, there's a discrepancy between these numbers and those published by TKM. The reason for that is speed cameras and media requests, which are handled by other groups).

As for costs,

Police advises that there are 13 people in Ministerial Services who process OIA requests. As at 1 November 2025, the annual total for their salaries is $1,547,991.

There are 53 people who work in the Information Request Service Group and the annual total for their salaries is $4,489,296.

This gives a cost-per-request for police ministerial services (which handles the most complex requests) of $838.57, and for IRSG as $82.83. While there's no cost-estimate for speed cameras and media requests, both are likely to be at the lower end (the former because they are routine, the latter because anything non-routine gets kicked into the formal OIA process and handled by Ministerial Services). These are obviously far lower than TBL's estimates of $3530 for complex requests and $353 for routine ones. Even allowing for overheads (which TBL estimates at 66%), TBL's costs are inflated by a factor of 2.5.

You would hope that TBL's followup work will reveal that. In the interim, though, Goldsmith has got what he paid for: a big, scary number for costs, which he can decry as "waste", plus the inevitable line-go-up graph, showing those costs will increase into the future. Which he will probably consider to be a case for action.

The proactively-released briefing notes that the OIA is of constitutional significance, and that any change will attract significant interest. It recommends 10-12 weeks of public consultation on any proposal. That's clearly not happening on the original proposed timeline of "before July", so it may have been kicked back until after the election. Alternatively, Goldsmith being Goldsmith, he may just not bother with proper process. This regime has established a terrible reputation for ignoring advice and enacting radical, anti-democratic, even constitutional vibe-based policy under urgency. Sadly, we can't rule out them acting as they have in the past, and wrecking the OIA in the same manner. The only way to stop them is to throw them out of office as quickly as possible.

A crime

Last week, we learned that climate polluters had been writing our climate laws, and trying to hide the evidence by handing over their demands in hardcopy (which was then conveniently "lost" and so unavailable to an OIA request). That was highly suspicious, suggesting a deliberate attempt to thwart the Public Records Act and its requirement to create and maintain full and accurate records of official business. And now it gets worse, with news that prime ministerial staffer and former far-right lobbyist Matt Burgess was getting official documents sent to his private email account.

Once is suspicious. This however suggests a pattern of behaviour to hide public records, a deliberate non-compliance with the Public Records Act. And that is a crime. While the penalty is pathetic, he needs to be prosecuted, pour encourager les autres. Failing to do makes a mockery of the law.

But that's not enough. We clearly need law reform here to protect transparency. This must include explicit penalties in the OIA, stronger (and matching) penalties in the Public Records Act, and a tweak to the Electoral Act declaring violation of either to be a corrupt practice - meaning anyone convicted will be automatically removed from parliament. Add a legal principle of absolute ministerial responsibility for the actions of their subordinates, and we would finally have proper incentives for open government.

If Ministers refuse to do this, it is effectively an admission that they are guilty. The question is, how shameless is how political class?

This is why we need criminal penalties in the OIA

Last night TVNZ revealed an outrageous act of corruption by the Luxon regime. Earlier in the month, Luxon had promised a law to prevent polluters being sued over their pollution - a direct attack on the rule of law to benefit favoured donors and cronies. Now it turns out that they were given that law by the polluters themselves. The polluters had lied about that to the courts, and Luxon's office had lied about it in an OIA response:

Official documents released Sunday, and seen by RNZ, reveal a briefing document provided to the Prime Minister's office regarding Smith's case against Fonterra and other major emitters.

Z Energy confirmed to RNZ it had provided a document to government in 2024 and Fonterra confirmed it had done the same with a hard copy.

Smith explained the defendants in his case had been ordered to release documents relating to their lobbying efforts by the end of March 2026, but the briefing note was only released this month, through the discovery process in the High Court.

The documents also showed the information was not disclosed by the Prime Minister's office, when requested as part of a separate Official Information Act request by an environmental group.

The polluters' non-compliance with court-ordered discovery is something for the courts to resolve. But the Prime Minister's non-compliance with the Official Information Act should concern us all. If taken at face value, Luxon claims to have no idea what is happening in his office, and also to be violating the Public Records Act, which requires him to create and maintain full and accurate records of his affairs (including when lobbyists slip him a policy "suggestion" - something which, as it requires the exercise of ministerial power, can only be official business). That's bad enough - bad enough to be an actual crime, though the penalty is derisory even for deliberate official wrongdoing. But the alternative - that he did know, and had complied fully with the record-keeping requirements of the Public Records act, and instead had simply lied in that OIA response - is worse. Because obviously, if Ministers and officials can simply lie in response to a request for official information, there might as well not be a law at all.

And this is why we need criminal penalties for the OIA: because we can not tolerate that sort of lying, and so it needs to be deterred. And that means both ensuring a principle of absolute ministerial responsibility for OIA responses, so that ministers cannot hide behind their minions, and defining the offence of lying in a response of destroying or hiding or not creating records to evade one as a "corrupt practice" in the Electoral Act, so that any Minister convicted is automatically removed from Parliament. The question is, what Minister will stake their career on proper ethical behaviour and following the law?

Public expenses should be public as a matter of course

The cover story of today's Substandard is the forced release of Palmerston North Mayor Grant Smith's credit card expenses. The actual expenses show nothing much - a bunch of work-related travel and hospitality spending, in accordance with policy. Smith travelled for work, attending meetings with Ministers and other significant, job-related events, and so of course his employers - the people of Palmerston North - paid for that, as any normal employer should. The release of the expenses is useful in exposing some of those policies - for example, around alcohol and hospitality - allowing us to update them to meet modern public expectations. But I don't see any real suggestion that Smith has done anything wrong, or spent outrageously or anything like that. There's no reports of huge drunken dinners or lonely late-night porn movies - unlike Shane Jones or Murray McCully.

The real story here is that Hayden Fitzgerald - a cooker and TPU stooge on city council - had to ask in the first place. Because official credit card spending is public money, and it should be proactively released at regular intervals as a matter of course - as happens with Ministers and public sector chief executives (example). Which makes it all the more outrageous when Smith complains about it:

Smith hit back, saying it had cost the council $10,000 to fulfill Fitzgerald's Local Government Official Information and Meetings Act request when his "sensitive expenditure" was already published every three months.

Firstly, the council only had to spend "$10,000" (a suspiciously round number, and unlikely to be true) because they tried to hide this information, rather than publishing it regularly like they should. Secondly, the claim that the existing reports (example on p113 - 116) are remotely useful is laughable. Like "reporting" on MPs' expenses, they are a category summary only, with no information on what, when, or why, and so allowing no analysis of whether particular spending was reasonable and necessary. That doesn't mean it wasn't - again, from the reporting, there's no real suggestion the spending was inappropriate - but if public bodies want to enjoy public trust, they need to earn it. And the way to do that is to be open and transparent. Which means that PNCC should respond to this by immediately moving to a proactive release model for all mayoral and councillor official expenditure.

Finally, I guess the other story here is that this request was made by Hayden Fitzgerald, a city councillor, rather than the Substandard themselves. Ministerial expenses have been public for 17 years, and I'd have thought that mayoral expenses would just be a regular part of the local government beat by now. You're really earning that nickname there, guys!

Schools belong in the OIA

For the past decade, successive governments have been chipping away at the Official Information Act, exempting agencies and passing secrecy clauses, reducing transparency and the accountability of officials. One of the results of this tide of secrecy has been increased demands for it, as agencies see other bodies protected from accountability and demand it for themselves. And now even school principals are demanding to be above the law:

A major education union is seeking legal advice in a bid to exempt state schools from the Official Information Act after an Auckland law student sent an onerous “system-wide” records request to nearly 2500 schools.

The Secondary Principals’ Association of New Zealand (Spanz) says a growing number of OIA requests are burdening stretched principals and tying up time and resources preparing responses that would otherwise go towards educating children.

This of course mischaracterises the Act as an onerous additional burden, rather than a core democratic requirement. Because that it is what it is. Its purposes include enabling people to participate in the administration of laws and policies, and promoting the accountability of public officials. And those purposes apply absolutely to schools. Looking at the criteria for OIA inclusion used by the Law Commission in their 2012 Review of the Official Information Act (p337), they are funded by central government, they are subject to Ministerial direction in various ways, the government controls and oversees their finances, and they serve a public purpose. The decisions they make are fundamentally public in nature, effectively being an exercise of state power. They clearly belong in the OIA regime.

Looking at the sorts of requests they get on FYI, there's broad surveys of policy (for example: do schools support queer kids at their school ball?), basic financial accountability, focused questions about policy and culture (there's a series at the moment asking how various toff schools appoint their prefects). Not seen so much on FYI, but ever-present: requests for the exact rules children are supposed to have broken, or the reasons why they have been punished.

The first sort of request is about participation: collect information, summarise the results, draw conclusions, and say "maybe this needs to change". The second sort is absolutely about accountability, about ensuring that decisions are lawful, reasonable, and justified, and being able to challenge them if they are not. You can understand why school principals would find this irritating. So do Ministers. But we don't let them declare themselves to be above the law, and neither should we allow school principals to.

Finally, as for the supposedly inappropriate request sent to all schools, SPANZ has this to say:

She wrote that Cunliffe’s request was not a simple exercise to establish how a particular school managed its records.

“It is a carefully designed, system-wide exercise intended to map legislative non-compliance across the school sector.

That seems like a clear public purpose, well-aligned with the purposes of the OIA. Exposing wrong-doing is what it is for! And if SPANZ sees that as a threat, the public is entitled to take that as an admission of guilt.

Strengthening proactive release

Newsroom has an opinion piece by Marcus Ganley, on the problems of proactive release of official information. The government releases vast quantities of stuff - annual reports, cabinet papers, briefings, research, investigations, datasets, OIA responses, and so on - but its often very hard to find. It's not deliberate "beware of the leopard" territory so much as no-one really cares about making it easy, and even if an agency is doing a good job this week, they'll inevitably "update" their website, break all existing links, and wreck it all. And of course there's no indexing or metadata telling you what these documents are or what is in them - just a soup of cabinet papers and "proactive release material" you have to trawl through.

There's not even a central index of where to find each agency's data. Te Kawa Mataaho has a spreadsheet listing the various places cabinet papers are found, but it was last updated in 2023 - which I guess shows how much of a priority it is for them.

We can obviously do better than this. Ganley has a few suggestions:

Since 2010, the Australian Freedom of Information Act has required agencies to publish information released to a requester on a website. In New Zealand this is a discretionary matter. Some agencies publish all requests, others only those they deem to be “of public interest”. Making publication of all releases compulsory would be a simple change.

Another step would be to require agencies to publish a much wider range of information on a regular basis. In the same way that we don’t have to wait for someone to request a Cabinet paper, there are whole categories of government information that, after a limited period of confidentiality, could be routinely released.

The UK Freedom of Information Act is the model here. It establishes a system of "publication schemes", basically requiring every government agency to say what it is going to publish, and to actually do it (meaning its legally enforceable; agencies can be forced to publish information they have "forgotten" to). Looking at the model publication scheme shows that it contains a lot of stuff that's routinely published here. But its a legally enforceable duty, not the current system of grace-and-favour, which can be revoked or forgotten on an official or Ministerial whim.

Adopting a publication scheme system would give us enforceable rights to proactively published information. It would also resolve Ganley's other issue, about legal protection for OIA releases not extending to proactive releases, and this perversely deterring release. There are very good reasons why that is the case - they can be summed up with the words "Paula Bennett" - but extending protection to release under a publication scheme would I think avoid that problem, and make it even clearer that any such release is prima facie bad faith (so not protected anyway).

But that still leaves us with the problem of things being difficult to find. There's a solution to that too: open government advocates have long advocated for a central government proactive release portal, with proper metadata, indexing, tagging, and searching. Chris Hipkins even suggested the first step towards one, with a proposal for a central repository for released cabinet papers. But he shot himself in the foot by not even bothering to consult the agency he thought should do it, allowing them to sink it. Such a portal would be a huge leap forward for open government in Aotearoa, the sort of project worthy of the Open Government Partnership. And we need to push for it (and then for things to be added to it). But I just can't see it happening under the current bunch of tyrannical control-freaks.

Crown solicitors deserve scrutiny

Graeme Edgeler had an interesting piece the other day advocating for crown solicitors to be subject to the Official Information Act. Uniquely in the western world, Aotearoa has privatised its most important prosecution decisions to private law firms. These make public decisions in the name of the state, decisions that if they were made by any other government functionary would be able to be scrutinised using the OIA. But because they are appointed by royal fiat, rather than simply a contract, they are not subject to the OIA:

This isn’t true of all prosecutions. The serious fraud office conducts prosecutions – including jury trials – of serious fraud. You can request information about these prosecutions under the Official Information Act. And when Police prosecute more minor offending, and Police prosecutors are making the same sorts of decisions around plea bargaining that Crown Solicitors make, Police are covered by the Official Information Act, and their decisions can be subjected to public and media scrutiny.

And the same goes for importation prosecutions by Customs, and fisheries prosecutions undertaken by the Ministry of Primary Industries, and District, City and Regional Council prosecutions, and even the exercise of prosecution powers by local Fish and Game Councils when people fish or hunt without a licence.

[...]

But, if that charge wasn’t fishing without a licence but was instead murder, the Official Information Act will not help you understand the decisions made by those prosecuting on behalf of the State, because the law says that there is no public interest in allowing OIA oversight of murder prosecutions.

This is, quite obviously, fundamentally wrong. And even the solicitors themselves recognise that! A 2021 investigation of crown solicitors by RNZ quotes one of them as being uncomfortable with the lack of scrutiny of their decisions not to prosecute (it also highlights other issues deserving of scrutiny: the lack of diversity, the level of expenditure, the way that these warrants have been held by the same clique of law firms for a century. Which just... smells. But the state protects itself from investigation by denying basic transparency...)

Not mentioned in Graeme's article: crown solicitors are subject to the Public Records Act. And the terms of their appointment state that all their information belongs to the state, and they must make it available to the Solicitor-General on request. Which simply reinforces his point: these are public officials, making public decisions in our name. As he says, "given the power Crown Solicitors possess, conducting the most serious prosecutions on behalf of the Government, there is no good reason not to subject them to the same scrutiny as Fish and Game wardens."

Graeme has set up a petition to parliament asking for the OIA to be extended to cover them. I've signed it. You should too. Because the people who make decisions about whether to prosecute rapes deserve at least the same level of scrutiny as fish and game wardens.

Using austerity to attack democracy

A couple of weeks ago, when the Financial Times reported that the UK regime was planning to attack their Freedom of Information Act because too many people were using it, I wondered how long it would be before National tried the same. Not long, as it turns out

The Government has asked officials to examine the costs associated with responding to Official Information Act requests, in a move some fear could lead to reduced transparency.

Justice Minister Paul Goldsmith has confirmed any changes could lead to less information being released to the public in some cases, arguing the system has become unsustainable as “every different little element of communication has been included”.

[...]

In a statement to Newsroom, Goldsmith confirmed he had asked the ministry to gather more information on the effects of a sharp increase in OIA requests, which had risen 394 percent since 2016.

“We are interested to know what revisions could be made to make the Act more efficient and practical.”

...which he then confirms means more secrecy. Because that's what "efficient" and "practical" means to these arseholes.

OIA numbers have absolutely risen over the last decade, for a lot of reasons. There have been changes in who and what gets counted, reflecting both government restructuring and evolving OIA practice, and there have been changes in awareness and accessibility and in democratic engagement. But that's really just the background increase. Because when you dig into the numbers, you see huge increases in service delivery agencies, agencies like Corrections and ACC and MSD, who make decisions over people's lives. And it seems that part of the story is that government has become more adversarial - denying people their rights in prison, cutting ACC and benefits to save money - and people are using the tools they have to push back and enforce their rights.

(There are other things going on as well. Over 85% of Custom's OIA workload in 2024 seems to be "travel movement requests" by insurance and finance companies wanting to check if someone has left the country. There are likely other similar stories for other agencies when we start digging...)

Goldsmith has apparently tasked some consultants to dig into this. If they do their job properly, that will help us understand where the increased load has come from, and how badly successive governments have under-resourced agencies to handle this basic democratic requirement. But consultants say what they are paid to say, and they may simply have been paid to do a hatchet job to make a case for removing our rights. The regime could avoid such suspicions by proactively publishing the brief and all their advice on the issue so far. But until they do, we should assume the worst. This regime surrendered any claim to a presumption of good faith long ago.

The OIA is a key constitutional measure, a pillar of our democracy. We can't participate in democratic decision-making or hold the government to account for its decisions without the transparency it enables. Yes, it costs money - but so do elections, and like elections, we should gladly pay that price as the cost of living in a democratic society. A regime which sees it merely as a cost to be cut and controlled is both missing the point, and fundamentally opposed to democracy. We need to vote that regime out while we still can.

Corrupt, criminal secrecy

Fishing is a criminal industry. Fishers routinely lie about catch sizes, illegally dump bycatch, and cover up the murder of protected species. After a long campaign by NGOs in the 2010s, the Ardern government was finally dragged (kicking and screaming, against the wishes of two corrupt fisheries ministers) into putting cameras on boats to ensure criminal behaviour could be monitored and deterred. The fishing industry felt that this was unjust, and immediately began lobbying and bribing to have the footage declared a state secret, so it could never be used by NGOs to hold them to account. And they've got what they wanted. The new Fisheries Amendment Bill, introduced today, includes one of the most draconian secrecy clauses I have ever seen, with protections exceeding those given to classified security information.

First up, all fisheries camera recordings are declared exempt from the Official Information Act. But that's not enough for the fishing industry. There is also a clause that they cannot be disclosed outside the ministry, except to certain agencies or for certain purposes. Any other disclosure, or disclosure by anyone it has been lawfully passed on to, is a criminal offence, with a penalty of a $50,000 fine. And naturally, there's no whistleblower exemption (so if a recording exposes serious wrongdoing, and the ministry refuses to act on it, reporting it to appropriate whistleblower authorities is a crime. Which is one way of the criminal industry preventing anyone bypassing its captive regulator...)

This information isn't a threat to national security. It doesn't endanger the maintenance of the law, or any any person's safety. Its not even commercially sensitive. If it was any of these things, the law wouldn't be necessary. Instead, its potential exposure - and the potential for the exposure of their crimes, and for oversight of MPI to ensure they enforce the law properly - hurts the poor widdle fee-fees of the fishing industry. And that, to this regime, is "an important public purpose", proportionate to the consequent destruction of our BORA-affirmed right to free expression (which includes the right to receive information), and the least infringement on that right, and so a measure which can be demonstrably justified in a free and democratic society.

That is simply bullshit. Protecting a corrupt criminal industry and its captive regulator from public scrutiny is not an important public purpose. It is the very opposite of a public purpose. But its what happens when you put a man who has taken tens of thousands of dollars from that industry in the position of regulator.

This bill is simply an affront to democracy. It is an abuse of our human rights, an insult to transparency, and the product of corruption. It should not be allowed to pass.

"Unnecessary and excessive" secrecy

Back in December the regime introduced the Commerce (Promoting Competition and Other Matters) Amendment Bill. While doing various other things - including introducing whistleblower protection for those providing evidence tot he Commerce Commission - the bill also massively expands the Commission's statutory secrecy powers, effectively giving it a ten-year exemption from the OIA. The bill is currently before select committee, and some of the submissions on it have been released, including that of the Ombudsman. Who is... not impressed.

The Ombudsman essentially argues that the secrecy clause is not justified as the information it seeks to protect is already strongly protected under the OIA:

Successive Ombudsmen have held that, in the OIA context, information provided by informants to regulatory bodies such as the Commission attracts protection on grounds of confidentiality on the basis that its disclosure under the OIA would have a chilling effect on the willingness of future would-be informants to come forward. In circumstances where the OIA already protects the relevant considerations, the creation of multiple mechanisms which, in essence, create a 10-year blanket carve-out from the OIA appeared unnecessary and excessive.

They suggest a number of ways of highlighting this to give reassurance to informants which would be less restrictive and infringe the BORA right to receive information less.

They also note that the "because we want to" clause - which allows the Commission to ignore its own secrecy clause for anyone it thinks has a "proper interest" in receiving the information - will apply to parties under investigation, as the fundamental right to natural justice means they must be able to know the nature and origins of allegations against them in order to properly respond. Which in turn completely guts the Commission's primary argument for secrecy (protecting the identity of informants to prevent retaliation). So, as I noted earlier, the bill won't do what its meant to, and the only people it will hide information from is the public.

There's also submissions from the New Zealand Law Society Te Kāhui Ture o Aotearoa and law firm Chapman Tripp which make similar points. The latter in particular highlights the public interest in transparency, so that the Commission's investigations are procedurally fair, its evidence properly tested, and its decisions seen to be robust.

The question now is whether the committee will listen, or whether they'll continue mindlessly following the trend for increasing secrecy and reduced accountability.

How do we change OIA culture?

Former district court judge David Harvey has a column in the Herald today lamenting the state of the Official Information Act. Like others before him, he agrees that the law is fundamentally sound - its the public service that is the problem. Despite clear statutory language in favour of transparency, they are incentivised by ministers, chief executives, PR departments and deliberate underresourcing to delay, deny, and defend against OIA requests. And the Ombudsman is no help, because they are also structurally underresourced, and culturally focused on turning over complaints as quickly as possible to make their numbers look good, rather than actually investigating.

This isn't an abstract problem. As Harvey points out,

secrecy and obfuscation are not neutral administrative choices; they actively corrode democratic legitimacy.

And that is exactly what is happening. And you only have to look overseas to see where that leads.

What can be done? People have talked about training, but no-one is doing it - at least, not the sort of training that rams home to public servants that their duty is to the people, not the minister, and that they need to release information ASARP. And while criminal penalties for egregious abuses would help (and are entirely normal overseas), Ministers seem unlikely to pass laws which punish those protecting them, and the police seem unlikely to enforce them if they are passed.

The core problem here is that the fish rots from the head. Ministers want to be protected, and chief executives obey because they want to keep their jobs. So breaking the employment nexus by making chief executive contracts non-renewable while imposing clear positive transparency duties would be a start. We already do this for the Auditor-General precisely to prevent cosy relationships and strategic employment-seeking behaviour from corrupting their duties; doing it to the rest of the public service isn't so great a step.

Fundamentally, though, it comes down to ministerial leadership. Everything is downstream of that. When the OIA was passed, ministers decided they wanted it to work, made their expectations clear to the public service, and resourced them to do it. We clearly need a similar drive from ministers to clean out the culture of secrecy they have imposed, and restore transparency. As for how to get that, that seems to be our job, through the electoral process. Those running for office need to be asked about their attitude to the OIA, and what they will do to restore transparency. Those who support secrecy, or who do not keep their promises need to be electorally punished. Until that happens, ministers will keep fucking us over, and we will keep responding to them with the disdain that deserves, and public trust in them and their institutions will continue to decline.

Under-resourcing transparency

The Ministry of Health is in my experience one of the worst performing government agencies when it comes to handling OIA requests. They unlawfully extend any non-trivial request, hyper-parse everything and adopt the most unhelpful and self-serving interpretation without consultation (and in violation of the principle of availability and the duty of assistance), and in the end are late anyway. Their Minister reportedly blames resourcing pressures for this. But as the PSA points out, resourcing is decided by the Minister:

However, the PSA's national secretary Fleur Fitzsimons told RNZ the minister should be taking responsibility instead.

"It shouldn't take the Ombudsman stepping in for Health NZ to provide information to the public, but really this does come back to the minister. He can't keep demanding savings and then blame officials when the impacts of cuts are felt," she said.

"Health NZ has lost over 2000 roles either through early exits, voluntary redundancies, or vacancies not being filled. This includes teams that support official information requests. They've lost critical expertise."

She said it was no wonder the public wanted information when the government was making such cuts, and the minister, his office, and health agencies should have seen it coming.

"This government is undermining the Official Information Act. It plays an absolutely critical role in enabling the participation of the people of New Zealand in public administration, but also in holding ministers and officials to account."

Its also worth noting that the courts have ruled (in relation to Corrections) that resource limitations do not justify failure to comply with statutory duties; if there are resource issues, then it is the chief executive's duty to reallocate resources so there are not. In the case of Corrections, the High Court ordered the chief executive personally to obey - raising the prospect of fine or jail if they do not. If government agencies keep making similar pleas when it comes to the OIA, then its time we took them to court and subjected them to similar orders.

Meanwhile, RNZ also quotes Labour's Carmel Sepuloni as blaming under-resourcing and cuts for OIA delays. So obviously, if she becomes Minister, she'll be ensuring that transparency is fully resourced, and that information is released expeditiously, and she'll resign if its not, right? I look forward to a public commitment from her, and all Labour's potential Ministers, on this.

The Commerce Commission's weak case for secrecy

Back in September, the regime announced plans to give new powers to the Commerce Commission. But the announcement also included this:

We have also heard in your submissions that businesses and individuals are increasingly reluctant to share information with the Commission because of fears confidential information could be released under the Official Information Act, potentially leading to retaliation or misuse of confidential information by competitors. This is undermining the Commission’s ability to collect evidence and receive useful information, particularly in investigations and merger clearances.

The regime's solution was of course more secrecy, with a 10-year blanket exemption from the OIA for "confidential" information provided to the Commission, and greater power for the Commission to issue temporary exemption orders. I was curious about the justification for this, so I asked the Commission whether they in fact had any evidence supporting it: were they aware of any OIA release from them actually causing the harms the Minister had alleged, and did they have any evidence their existing secrecy powers were inadequate? In both cases, the answer was "no":

Regarding the first two bullets of your request, the Commission is not aware of any specific instances where information we have released under the OIA has caused harm to the business who provided the information to us.

The Commission is also not aware of any documents containing specific evidence that section 100 of the Commerce Act is inadequate.

What about wider advice on the OIA? Here the Commission said they had information, then refused to provide it for a further two months as they were (illegally) "consulting MBIE and the Minister’s Office prior to making our decision on the potential release of this material". But they finally provided the response yesterday, and a folder full of documents. There are a few interesting things in here, including that the Commission has apparently been running its own private "special advocate"-style system for merger cases, where lawyers are given access to evidence but forbidden from discussing it with or disclosing it to their clients - similar to the system used in "national security" cases here and overseas, with all the unfairness and professional issues that entails, only without any statutory authorisation. But on the actual case for secrecy, its largely fear, uncertainty, and doubt. TL;DR businesses are afraid they will be harmed by the release of "confidential" or commercially sensitive information. There's also fear over the public interest over-ride, and the inability of the Commission to give categorical assurances of total secrecy. Both show that businesses do not understand the law (which is to be expected), but that the Commission seriously entertains this shows that they don't either (possibly due to corporate culture capture). The fact is that there is a clear and obvious case for withholding confidential evidence under s9(2)(ba)(i) (in that it is clearly in the public interest that people are able to give evidence to the Commission, so if release would inhibit the giving of such evidence in future, s9(2)(ba)(i) applies), and while this is subject to the public interest test, the reality is that in practice such information is almost never released, because the usual public interest factors of accountability, transparency, and participation simply don't apply to information provided by third parties about themselves.

(There is the issue of the accountability of the Commission for its decisions, which means they must release the evidence which justifies them, but they should be doing that publicly anyway, so that's not an OIA issue, but a basic one of administrative law...)

However, there is one significant issue: big companies intimidating smaller ones from giving evidence against them:

In cases involving an applicant with alleged market power, dominance, or some other form of power or leverage over market participants, those market participants may be particularly concerned by the prospect of any information provided to us being provided to the applicant. This is of particular concern to us, as cases of this nature generally merit scrutiny.

Which sounds reasonable at first glance. But it isn't specifically an OIA problem - because, as the Commission admits, it is required to provide such information to applicants for reasons of natural justice. So the applicants are going to find out whether a request is made or not, and all attacking the OIA does is hide information from other people.

The obvious move here is not to undermine the OIA, but to target the actual problem of retaliation and victimisation, just as we do for whistleblowers. And the government announcement included that, so there's no need for secrecy at all.

The release also includes a summary of public submissions to a consultation by MBIE, which gives a good overview of their consultees' views on "protecting confidential information". Its worth noting that a broad OIA exemption was not one of the options canvassed in that consultation, so the Commission is going well beyond what was floated. Its also shocking that any government agency would fail to recognise the constitutional nature of the OIA, and that their response to it causing them minor irritations is to try and exempt themselves from a fundamental part of our constitution. But again, this is likely a matter of capture by corporate culture. We know that local and international business are fundamentally hostile to democracy and transparency; its utterly shocking that the body we have established to police them has been so captured by them as to share that hostility. At the end of the day, the Commerce Commission is a public body. That means it must respect democratic norms - including the OIA.

DPMC's secret guide on how to be a minister

One of the common criticisms governments make of oppositions is that they're inexperienced, and have no idea how to be ministers or run the country (so its better to stick with the status quo). But why don't they know? Changes of government are and ought to be a regular feature in a parliamentary democracy like ours, but weirdly there's no real preparation for them for the people concerned. There's no training course on "how to be a minister" for MPs, for example - even though it would seem to be an obvious necessity which would help improve governance overall. While the Cabinet Manual is public, there isn't a public "how-to" guide so would-be Ministers can prepare themselves for the job and see what it entails.

There is however a private one. DPMC publishes an Induction Handbook for New Ministers, outlining basic constitutional responsibilities, the nuts and bolts of a ministerial office, and how to do the job. I heard about this earlier this year, and requested it under the OIA. DPMC initially released a redacted version, but after a complaint to the Ombudsman, you can read the whole thing here:

What did DPMC try and hide? The anodyne introduction, basic explanations of the role, an obvious statement about social media and hats, basic HR and time management advice, a sentence telling ministers to ask their agencies if they got along with Treasury, and some basic stuff about setting policy priorities and compromising on them. All of this was withheld as "free and frank", with an implicit claim that its release would inhibit similar advice in future. Which both suggests a fairly extreme level of paranoia and self-consciousness about even the most banal advice, but also a complete failure to consider the public interest. There are no deep, dark secrets here. Instead, DPMC seems to have complete contempt for the public, and believe that we have no right to know even the most basic and obvious information about how this country is governed.

(They also tried to withhold the fact that no cellphones are allowed in the cabinet room, something we all knew anyway, as prejudicial to national security...)

As noted above, I think this sort of information being public would be hugely beneficial to governance in this country, and help ease changes of government. It would also help the public understand how our government actually works, and what actually goes on in a minsiterial office, and what they can and can't do. I am shocked that it is not prominently and proactively published. Who does DPMC's policy of secrecy serve, other than officials wanting to "break in" and dominate new and inexperienced ministers?

Oh.

Anyway, it's public now, and hopefully MPs will use it in future to prepare themselves for office. While they're at it, their staff might also want to look at DIA's Ministerial Adviser Deskfile, which is a similar guide for new Ministerial Advisers.

Sometimes you win

I'm a regular submitter on legislation, and one of my pet topics is transparency. A lot of recent laws propose secrecy clauses - excluding particular information from the scope of the Official Information Act, or creating new, bespoke statutory barriers to release, usually after whining from some industry lobby shocked at the existence of a constitutional law that has been on the books for 40 years. But there are also cases where some body, whether unintentionally or by design, is excluded from the OIA.

One of these bodies was the Valuers Registration Board, the body which is meant to register and discipline valuers (the people who decide how much land is worth, for example if you're a Prime Minister who wants your holiday home valued at a lower level so you can pay less rates). It was created by a 1948 law, and viewed as a mostly private institution, so its absence from the Act wasn't surprising. But the law is being updated by the new Valuers Bill, which weirdly had failed to add it in. So I did a quick submission, copying the boilerplate from the last time I'd done this, pointing out that attitudes to transparency had significantly shifted since 1982 (when presumably someone made a decision not to include it), and in particular it seemed odd that a publicly-owned and funded, ministerially appointed body for registering and disciplining valuers would be treated differently from similar bodies overseeing teachers, builders, architects, plumbers, and security guards. And rather than feeding the submissions to an AI and then saying "fuck off, peasants!", the committee actually listened:

On balance, we consider that the Board plays a public role, given the importance of valuations to property markets and property rights. In our view, the Board meets key criteria for being subject to the OIA. We also heard that applying the OIA would not place an unreasonable administrative burden on the Board.

We recommend amending Schedule 4 of the bill to insert the Valuers Registration Board into Schedule 1, Part 2 of the Ombudsmen Act. We note that an organisation named under Schedule 1, Part 2 of the Act is subject to the Official Information Act.

So that's a win. Now if only they'll listen when it comes to the Commerce Commission or Shane Jones' secrecy shield for fishers...

Secrecy to protect criminals

Fishing is a criminal industry, with fishers routinely violating quotas, under-reporting bycatch, and engaging in fraud to profit from pillaging the ocean. To stop this criminality, the government has finally been dragged into putting cameras on fishing boats, so they can monitor what is caught and ensure fishers obey the law. But fisheries minister Shame Jones is a bought-and-paid-for tool of the fishing industry, so he's decided that the resulting footage will be exempted from the Official Information Act:

An overhaul of fisheries rules will allow greater catch limits when fish are abundant and stop on-board camera footage being made public.

[...]

The move to exclude footage from the OIA was supported by Seafood New Zealand.

Chief executive Lisa Futschek said while it supported cameras on fishing vessels, they were a tool for "verification, not vilification".

"We accept that the regulator should have access to footage to ensure that we are doing what we say we do, but to enable members of the general public to see this footage is unfair," she said.

Which is exactly what burglars would say about security cameras, or police child-pornographers would say about their computer-use being audited. As for "vilification", if the fishing industry doesn't want to be vilified, they should not behave like villains. Simple.

As for the policy, there's a strong legal argument against it - OIA exemptions violate the BORA-affirmed right to freedom of expression, so must be demonstrably justifiable in a free and democratic society. But "protecting fishers poor little fee-fees" isn't an "important public purpose", and that's before we even get to questions of proportionality. But beyond that, the reason we have cameras is because MPI (and its predecessor Fisheries NZ) were completely captured by the industry they were supposed to be regulating, and was ignoring its serious crimes, until their enforcement reports were leaked and OIA'd, creating public pressure for them to do their job properly. The lesson here is that transparency is vital to keep the regulator honest and prevent capture. All secrecy does is protect criminals. But then, that's precisely why the fishing industry and their $10,000 mouthpiece Jones support it.

Drawn

A ballot for three member's bills was held this morning, and the following bills were drawn:

• Local Government (Port Companies Accountability) Amendment Bill (Lemauga Lydia Sosene)
• Financial Markets (International Money Transfers) Amendment Bill (Arena Williams)
• Military Decorations and Distinctive Badges (Modernisation) Amendment Bill (Tim van de Molen)

The first would extend some (but not all) of the provisions covering council controlled organisations to port companies and their subsidiaries (which are excluded from the definition of CCO by s6(4)(c) and (ca) of the Local Government Act 2002). This would include the principal objective statement - setting up a legal clash with the principal objective clause of the Port Companies Act 1988 - and (most importantly) the LGOIMA and Ombudsmen Acts. If passed, it would be the biggest statutory expansion of transparency since the OIA was extended to cover Parliamentary Undersecretaries in 2016, but why its being done in this convoluted way rather than simply repeal the exemption isn't clear. Rachel Brooking, the original sponsor of the bill, told me there were "other consequences involving more moving parts" when she first put it in the ballot in 2021. Possibly there are worries about guarantees and lending, but it does also create direct conflicts of law, and set up problems for future (or past?) privatisations, in that all port companies would be subject to LGOIMA, regardless of whether they would be CCOs if not for the exemption. But that's what happens if you try and unravel a nearly 40 year old failed privatisation campaign, I guess.

The other bills are just basic consumer protection, and weirdo flagshagging (increasing the penalty for wearing medals you're not entitled to to $10,000, which seems wildly disproportionate - the penalty for equivalent offences under the Flags, Emblems, and Names Protection Act 1981 is $5000. But flagshaggers gonna shag flags, I guess). Given what else was in the ballot, it could have been much, much worse.