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?

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.

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.

The obvious question

Stuff has a story about ACC lying in an OIA response, and how it was exposed by a whistleblower under the Protected Disclosures (Protection of Whistleblowers) Act 2022. Its the usual story: journalist hears about expensive party, sends in an OIA request, is pressured to agree to limit scope to parties which cost over a certain amount in an effort to prevent disclosure, then when it turned out that it did cost more than that due to travel costs, they decided they were really travelling for "other work" so they could pretend those costs didn't count. And everyone involved knew it was wrong:

Another staffer disagreed with the manager.

Their message said: “‘other work’ This is wrong. Fundamentally wrong.”

In the discussions, ACC staff had said they did not believe that all of those 11 staff would have flown to Wellington had the farewell function not been held.

The manager admitted it was dodgy. “Everybody knows that,” they said. They then said they would personally sign off the response.

That statement indicates a willingness to take responsibility for the illegal decision. Which raises the obvious question: have they? Have they faced an employment process over it? If not, why not? Because knowingly violating your legal obligations as a public servant is the very definition of "serious misconduct". And people should be fired for it.

"A review"

When the government passes legislation trampling on civil liberties it loves to insert - and crow about - "safeguards" which will supposedly prevent abuse. For example, when it passed the Gangs Act 2024, which enables the government to designate a group as a "gang", banning its insignia and enabling all sorts of additional search and harassment powers and other fuckery - the select committee responded to concerns that protest groups would be designated by inserting a clause stating that civil disobedience for the purpose of political activism did not qualify. They also responded to concerns that groups would be designated forever by inserting a clause requiring the list to be regularly reviewed:

To ensure that the list is regularly reviewed, we also recommend inserting clause 30(3A) and (3B). These would require the Minister to review the Schedule before making a recommendation to amend it, and every 5 years if no amendments were made.

The government accepted these changes, with Justice Minister Paul Goldsmith saying in the bill's second reading debate:

To ensure that the list remains up to date, the police will review the entire list each time an addition or removal is considered, and every five years if no changes are made.

The clauses were discussed in the bill's committee stage, where it was taken to mean that the minister must check that every gang on the list still meets the criteria, and remove any that do not.

So how much of a safeguard is this really? Earlier this year police minister Mark Mitchell designated two additional gangs. I was curious to see whether he had complied with his legal obligation to review the entire schedule, so I asked for the review. His response:

There is no standalone document specifically titled or formatted as my review of Schedule 2. The review was undertaken as part of the broader policy development process that informed the introduction of the Gangs Act 2024 and the subsequent Gangs (Identified Gangs) Order 2024. As such, there is no discrete document in scope of your request.

So, he didn't need to do a review because he'd passed the law (including a list of gangs, 11 of which were outdated and removed by the select committee) just a few months earlier (unfortunately, that's not what the law actually says). Instead, the Minister pointed me at the police's advice and the relevant cabinet papers on the matter - which are interesting reading. The police's advice makes no mention of the need to review the schedule, and does not consider any gang other than those targeted for designation. As for the cabinet paper, it includes this:

I have reviewed the list of identified gangs in Schedule 2 as required under section 32(5) of the Act before making a recommendation to update the list.

Given the (lack of) documentary record, I leave it for readers to judge whether Mitchell was being honest with his cabinet colleagues, or fulfilled his legal obligations under the Act.

Meanwhile, this shows the contempt the government - and the public servants who support them - have for safeguards for our civil liberties. And it shows why it is a fool's bargain to trust them.

A "secret" that wasn't

Back in 2018, Aotearoa was in the midst of the Operation Burnham inquiry. During this, it emerged that key evidence was subject to a US veto under an obscure and secret treaty. Part of the Five Eyes arrangement, this treaty was referred to by a number of different names in different documents, but seemed to be the "Security of Information Agreement between the New Zealand Minister of Defence and the United States Secretary of Defense of September 2 1952", with amending exchanges of notes in November 1961 and in 1982.

I was curious about this treaty and especially about its impact on the handling of OIA requests, so I asked MFAT for a copy. They refused, claiming it was a) secret; and b) American, and therefore couldn't be released. So I went to the Ombudsman, pointing out that the equivalent treaties for all other Five Eyes had been released and were likely to be substantially similar (so it wasn't really secret after all), and that if MFAT wanted to hide behind the Americans, it should at least have to actually ask them if they objected to release. The Ombudsman agreed on the latter point at least, and so MFAT agreed to reconsider its decision and ask the US. And then they just... didn't. back to the Ombudsman, and MFAT agreed that it would make its own assessment of the treaty and consult the US about that, and released a summary. back to the Ombudsman for a full-on challenge to the idea that this is secret or foreign in any way, and MFAT agreed to formally talk to the US to gain US declassification. And then they just... didn't (again). And its currently before the Ombudsman again, with more MFAT promises to talk to the US.

So you can imagine how pissed off I am to find out that a key part of the information I requested - the 1961 exchange of notes - was declassified and released by the US State Department in January 2018, before I even made my request, and that MFAT has simply been dicking me around for seven years. You can read the full thing here, thanks to the Unredacted Five Eyes archive.

As for what it says, it echoes the other, similar (and public) agreements that we already knew about. Which invites the question: why the secrecy? What is the supposed harm in release here? What was the point of MFAT's "consultation" if it didn't result in them learning that this had already been declassified? And why is the New Zealand government still resisting transparency after all these years?

Parliament's secret "transparency" regime

When the Parliament Bill Committee rejected calls for Parliamentary agencies to be subject to the Official Information Act last month, their excuse was interesting: Parliament didn't need the transparency of the OIA because it already had its own transparency regime! Which came as rather a surprise to everyone working in this area. But they had the Protocol for the release of information from the parliamentary information, communication and security systems to point to, and while being mostly about secrecy and MP's veto power over the release of any information relating to themselves, it did require parliamentary agencies to develop and submit to the Speaker:

detailed guidelines for dealing with requests for information about parliamentary administration that balance openness and transparency, privacy principles, and parliamentary independence

I was curious about these guidelines, so I asked for a copy and for information on how they had been publicised. And it turns out they simply hadn't been. While approved by the Speaker at the same time as the protocol, they had never been placed on the parliamentary website - meaning that Parliament's bespoke "transparency" regime had effectively been kept entirely secret, at least from the public. Which is... somewhat odd. If you want to be open and transparent, surely you'd advertise the fact, rather than hiding it? But clearly, I'm just not sufficiently steeped in Westminster parliamentary traditions...

[I should note that the non-publication of these guidelines for nine years is currently being reviewed, in light of the Parliament Bill Committee's report, so maybe they'll finally be posted...]

As for the guidelines themselves, you can read them here: Guidelines for the release of Parliamentary administration information. They basically replicate the OIA regime, with some twists:

• all withholding grounds are absolute; there is no public interest test;
• all advice to or from the Speaker is confidential and may not be released;
• there is no right of appeal, even when Parliament blatantly ignores its own rules (privilege literally means being above the law).

This clearly does not meet the transparency expectations of modern Aotearoa, and pretending that it does is simply a bad joke. Instead, its just grace and favour and arbitrary secrecy unless someone in power decides otherwise. And that is not the level of transparency we expect in a free and democratic society.

Parliament claims that it accepts transparency and the principles of the OIA. If it is serious about that, it should accept the full OIA regime and be fully subject to the law, just like any other agency. And if they refuse, or drag their feet, we can draw our own conclusions about how open and transparent they really are.

Improving OIA enforcement

Yesterday The Post had a long exit interview with outgoing Ombudsman Peter Boshier, in which he complains about delinquent agencies which "haven't changed and haven't taken our moral authority on board". He talks about the limits of the Ombudsman's power of persuasion - its only power - and the need for more coercive tools, such as holding chief executives personally liable for failures as they are under health and safety legislation.

That's certainly one option. Here's another: introduce a compliance notice regime for the OIA.

We already have this tool in the Privacy Act, and it allows the Privacy Commissioner to issue a notice to an agency which has broken the law, requiring them to remedy the breach and/or prevent any repeat. And if they don't, the Commissioner can go to court and get a court order forcing them to obey, which then in turn opens up the usual penalties for civil contempt.

Unlike CEO liability, this is directly focused on specific breaches, and forces agencies to actually fix them and obey the law. It would mean that shit like this wouldn't happen. Which is the outcome we want, right?

Again, this would make a useful member's bill, and the relevant provisions can be cribbed from existing law.

Parliament says "no" to transparency

The Parliament Bill Committee has reported back on the Parliament Bill. As usual, they recommend no substantive changes, all decisions having been made in advance and in secret before the bill was introduced - but there are some minor tweaks around oversight of the new parliamentary security powers, which will likely be shown to be inadequate within a year or two. As for my major theme - extending the OIA to Parliament - the committee basically said "fuck off":

We note that previous reviews, including by the Law Commission, have considered a possible extension of the OIA to cover Parliament. We also acknowledge the calls from submitters to extend the OIA to cover more parliamentary information, a view that some members of the committee generally support and would like to see progressed.

However, the bill as introduced does not amend the OIA, and for reasons of scope we cannot recommend substantive amendments to that Act. A full policy process would be required to ensure any proposal would not adversely affect the political, policy, or constituency work of members and political parties, nor the ability of the House to maintain control over its own proceedings. Moreover, a reliance on the definition of “proceedings in Parliament” from section 10 of the Parliamentary Privilege Act may not be suitable in the context of the OIA.

Firstly, hiding behind scope is bullshit - it is entirely normal for select committees to amend the schedules of the Ombudsmen's Act or OIA to add agencies which have been excluded. As for the need for a full policy process, this is basically an admission that they haven't done one - that despite recommendations stretching back to the Danks Committee in 1980, they didn't bother to consider the issue when developing the bill. Which is a hell of a failure in the policy development process - but I guess what you get when you develop major legislation in secret and without any public consultation.

There is more about this failure in the bill's departmental report (p22), where after reiterating all the whining about how they couldn't do it in the past, and doing a bit of scaremongering about what they've been asked about and therefore what they might have to release, they basically say "we do not administer the OIA, and any such policy project should be undertaken in conjunction with the Ministry of Justice". Well, they don't administer the Privacy Act either, but they were perfectly capable of consulting when they planned to extend it to cover information held by Parliamentary Security. So it does basically seem to be a prolonged case of "don't wanna" from an institution which has always felt itself to be above the laws which apply to others.

The committee does talk about the Protocol for the release of information from the parliamentary information, communication and security systems as a substitute for the OIA regime. Except when you read it, most of it is about secrecy and MP's veto power over the release of any information relating to themselves, and the bits covering general requests and information about parliamentary administration are either very vague, or entirely at the discretion of the Speaker. Still, there are obvious things to ask about, and we can see if the transparency they are claiming actually exists, or whether it just exists in theory as a way of defending against real, enforceable transparency.

I should note that one are where there might be more transparency is MP's expenses, where the Speaker will effectively get a regulation-making power to decide what will be reported publicly. But against that, the Speaker is an MP, with huge conflicts of interest around the making of such regulations (both because they have expenses themselves, and they need to maintain relationships with their caucus and other parties). Again, we can wait and see if that actually amounts to anything more than empty promises.

Meanwhile, as for those members of the committee who support bringing parliament under the OIA, I suggest speaking up about it, and putting a member's bill in the ballot enacting the Law Commission's proposed changes to start the process. I'm more than happy to draft it if they need help.

Law, culture, and the OIA

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".

Arbitrary or worse

Back in December, Lands Minister Chris Penk rejected proposals to recognise the proper names of Manawatū and Pito One. Both proposals were strongly supported by their communities and so recommended by Ngā Pou Taunaha o Aotearoa / New Zealand Geographic Board. Despite this, Penk rejected them. I was curious about his reasons for this, so I asked for the advice. The response [part 1 part 2] was unfortunately incomplete (to the Ombudsman!), but showed no offical advice recommending rejection. So I asked directly for his reasons. I got the response to this today, and after some obfuscatory waffle, he tehn says this:

I have no specific reasonings for Manawatu or Petone in particular.

Whether that is because there are in fact no reasons - making the decisions arbitrary - or just none that Penk is willing to publicly admit to - making them biased and improper - is left as an exercise for the reader. But there seems to be a definite pattern in the overall decisions he announced, and it doesn't look appealing.

So what can be done about this? Likely nothing. The law says "The Minister’s determination on a proposal is final", would would probably present a high barrier to any judicial review. But we could fix it for the future. Because the current law, allowing essentially arbitrary decision-making, is no longer a good fit for the Way We Do Things In Aotearoa. It is, in an Aristotelian sense, unconstitutional. As for how to fix it, section 30GC(7) of the Climate Change Response Act provides a good guide to how we do things now: when a Minister disagrees with an expert-body following a public submissions process, they need to give detailed reasons for doing so both to parliament and the public. Its an essentially shame-based mechanism, but tends to deter poor and arbitrary decision-making, while ensuring that any departure from expert recommendation is properly supported. Amending section 20 of the New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008 to include such a mechanism would make a nice little member's bill for some MP.

A reversal on secrecy?

For the past few years I've been waging war on secrecy clauses, submitting at select committee where clauses in legislation seem to over-ride the Official Information Act. One of the drivers of this was a 2014 decision by the Ombudsman (unpublished, but posted here), where they interpreted an exemption in one of the Climate Change Response Act's confidentiality clauses, which allowed information to be released "as provided under this Act or any other Act" as not actually allowing release under the OIA:

I am not persuaded that the OIA is an Act that provides for the disclosure of information in s 99(2)(a) of the Climate Change Response Act. The OIA confers a right to request official information and requires that such requests be processed in accordance with its provisions, but those provisions do not provide for the disclosure of information under the CCRA (or any other Act that imposes restrictions on the availability of official information). Instead, section 52(3)(b)(i) of the OIA provides that nothing in that Act derogates from any provision which is contained in any other Act which imposes a prohibition or restriction in relation to the availability of official information. Section 99 is such a section.

Accordingly, the OIA does not override the restrictions imposed by section 99 of the CCRA and it would be contrary to that section for the requested information to be made available to you. Consequently, section 18(c)(1) of the OIA provides a reason to refuse your request on that basis.

Since then such clauses have unfortunately become a regular feature of legislation, as business interests have lobbied for statutory secrecy to over-ride our democratic right to transparency.

There is a good argument that the Ombudsman's 2014 decision was incorrect, and that a BORA-consistent interpretation of the clause (as required by s6 BORA) would interpret it as giving effect to the right to freedom of expression, which includes the right to receive information and is internationally recognised as including a right of access to government information. And it seems that the Ombudsman has been persuaded. The new Offshore Renewable Energy Bill includes a similar secrecy clause to that in the Climate Change Response Act, with an exemption allowing release where disclosure is "required" (rather than merely "provided" by) other legislation. And in their submission, the Ombudsman says that this does not oust the OIA:

The Official Information Act 1982 (OIA) appears to be one such piece of ‘other legislation’ that may require commercially sensitive information or personal information to be released, on request under that Act.

They also highlight the constitutional nature of the OIA, and go on to say that:

The Ombudsman therefore generally is of the view that Parliament would only derogate from, or limit the application of, the OIA through clear and direct legislation to that effect.

Which is a similar approach to that taken by the courts on the BORA, or te Tiriti.

Taking the Ombudsman at their word suggests that many existing secrecy clauses - at least those prohibiting disclosure but with "required by" exemptions - may not in fact limit the Act, and certainly won't be interpreted that way by the Ombudsman should the matter come before them in a complaint. But of course there's only one sure way to find out...