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.

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?

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.

"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.

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.

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.

National takes another step towards tyranny

Earlier in the month, the British government proscribed Palestine Action, a peaceful protest group, as a terrorist entity, over their effective protest action against British support for Israel's campaign of genocide in Gaza. Since then hundreds of people have been arrested for "supporting" them, some for simply holding a Palestinian flag. Its an appalling act of tyranny from a regime desperate to shut down criticism of its support for a genocidal regime. And now, the National government wants to bring that tyranny here, with a secret "consultation" on the Terrorism Suppression Act aimed at making designation easier and outlawing speaking in "support" of terrorist entities:

New Zealanders who publicly express support for terrorist groups could be charged with a criminal offence, as part of secretive proposals being considered by the Government.

[...]

The coalition Government is eyeing reforms to the law, with limited consultation currently taking place behind closed doors with a handpicked selection of groups and experts.

In a copy of the consultation document seen by Newsroom, the Ministry of Justice said the Government had agreed to progress “targeted amendments” to the law, which had not been substantively reviewed since its enactment.

The document said existing offences in the law “don’t capture the full range of behaviours or activities of concern that are part of the contemporary threat from terrorism”, and needed to be updated.

Among the changes being considered were making membership of a terrorist entity a criminal offence, creating new offences to capture public expressions of support for a terrorist act or designated entities (such as showing insignia or distributing propaganda), and modernising definitions for terms like “material support” to capture new online forms of support.

The consultation document also raised the possibility of a streamlined designation process, saying the current decision-making system was lengthy and the designation period was short.

You can read the consultation document here. Its odd that the NZCCL - Aotearoa's premier civil liberties organisation - was not consulted. But then, the whole point of this sort of "targeted consultation" is to exclude opposing voices, and insulate the process from criticism until it is rammed through parliament and is a fait accompli.

As for the merits: criminalising membership of a terrorist organisation does not sound unreasonable, except that such entities don't exactly have membership cards, and all the ways in which membership actually matters - recruiting, training, financing, providing material support, or enhancing the ability to carry out terrorist acts - are already all crimes. As for "public expressions of support", what is happening in the UK at the moment, where virtually any sign of opposition to Israel's genocide in Gaza or support for Palestine in general is being treated as support for a terrorist entity - shows the danger of that. And while the New Zealand government would claim that it is "different", its past actions show that they are not. Just this year, a government minister denounced an opposition MP as "support[ing] terrorism" over Gaza, and I recall him saying similar things about environmentalists opposing coal mines. These are the last people I would trust with stronger anti-terrorism powers.

The Ministry of Justice did not want to hear from Aotearoa about its secret plans. But you can tell them anyway. Read the discussion document, and send your feedback to nationalsecurity@justice.govt.nz by Friday 8 August 2025. While you're at it, tell them that in a democracy, consultations about fundamental civil liberties issues are public, not private.

ACT means secrecy

Back in April an OIA request exposed the absurd cost of ACT's charter schools - five times more per student than the government spends on public schools. ACT obviously didn't like that, but they have a solution: keep the number of students secret:

The seven charter schools set up at the start of the year have been told to keep their enrolments secret, by The Charter School Agency.

The organisation, which manages charter school contracts and funding, told RNZ it was not appropriate to share information about the rolls of the publicly funded private schools.

"The Charter School Agency does not intend to release the numbers of students currently enrolled at each individual school during the crucial establishment phase as this could undermine their commercial position and their efforts to build their roll and deliver quality education," it said.

...which means no more bad headlines about stupidly high costs per student. Convenient for a minister and an agency wanting to avoid criticism. But terrible for the public wanting to know whether these gold-plated luxury schools work or not, and if the cost is worth it.

(Of course, it's illegal: most of the schools in question are non-profit, and so cannot have a commercial position to protect, and for those that aren't, there's a clear over-riding public interest in transparency and accountability, in that student numbers are essential to determining whether the people of Aotearoa are getting value for money. But that would require a complaint to the Ombudsman, which would take a year or two, so the government wins simply by virtue of shit enforcement...)

There's an obvious parallel here with the government's boot camps - also run by an ACT minister - where after several high-profile failures, all outcomes were declared secret. And that's how this government prevents criticism: not by performing well, but by censorship and secrecy. Transparency? Our right to know? Not under this regime.

Retreating into his far-right bubble

When Rimmer proposed his weirdo libertarian Regulatory Standards Bill, the public reaction was clear and unequivocal. 88% of the 23,000 submissions on the initial consultation rejected it completely. Only 0.3% thought it was a good idea. Faced with this level of public opposition, a sensible, reality-based politician - or at least one who could count - would have realised they were on dangerous ground and dumped the bill, or at least paused to reconsider. But not Rimmer. Instead, he's decided that everyone who did not completely support the bill was a "bot":

ACT leader David Seymour has claimed 99.5 percent of the submissions received on the Regulatory Standards Bill were created using "bots".

[...]

"You're smart enough to know that those 23,000 submissions, 99.5 percent of them, were because somebody figured out how to make a bot make fake submissions that inflated the numbers," Seymour said.

The figures quoted were "meaningless" and represented nothing more than somebody "running a smart campaign with a bot".

When asked what evidence Seymour had that the submissions were fake, he said it's because "we've looked at them. Because we know what the contents of them is".

...except they didn't. Because the Ministry for Regulation got an AI - a "bot", if you will - to "read" and categorise the submissions. And it didn't make any such finding. Neither did they find a huge number of duplicate or form submissions (as used by far-right groups in support of Rimmer's racist Treaty Principles Bill). Those 20,000 submissions clearly opposed to the bill? They're from actual people, iwi, and organisations. They're not "bots"; they're simply people saying things Rimmer doesn't like.

(I should note that normally submissions on this sort of consultation are released, so normally you'd be able to check all this yourself. But Rimmer's quack ministry has refused to follow the normal democratic process, and refused to release them under the OIA. Which conveniently allows him to lie about them with impunity. Which is another example of how this government weaponises secrecy to undermine democracy).

Someone on kikorangi observed that "Bot submitters are just the digital version of the paid protesters trope." That seems accurate. And like claims about paid protestors or "crisis actors", claims of "bot submitters" (or his new one about "online campaigns") are an attempt to delegitimise clear and public signs of opposition. Its a sign that Rimmer is retreating into his far-right bubble - a bubble in which people organising to oppose the government is somehow suspicious and undemocratic - rather than admit the reality that his agenda is deeply unpopular. But while he can spout these absurdities, there's something he's not going to be deny: when we vote him and the rest of his dogshit regime out at the next election.

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?

National doesn't want you to know what people think of the Regulatory Standards Bill

Back in January the government held a public consultation on its draft Regulatory Standards Bill. The bill is a piece of neoliberal bullshit which seeks to bind all future lawmaking to some highly contentious (and not public accepted) Libertarian ideological principles, in an effort to deter future lawmaking with the threat of endless lawsuits. It also completely ignored te Tiriti o Waitangi - something which has resulted in an urgent claim to the Waitangi Tribunal. Understandably, this resulted in a high degree of public interest, despite the government scheduling the consultation over the holidays when it expected everyone to be asleep.

The normal practice in this day and age is for public submissions on such consultations to be proactively released. However, the bill's consultation document made no commitment to doing so. It did however include the usual boilerplate warning people that their submissions were subject to the Official Information Act, and asking them to clearly identify any material that they did not want released. So, armed with that notice, OI requested the submissions, taking care to note that a proactive release would completely satisfy my request. The Ministry refused, claiming that preparing all 23,000 submissions would require "substantial collation and research". I am not sure that this is legally true, given the Ombudsman's guidance on the topic. It may be a substantial amount of work, but given that the information is clearly identifiable, held, and sitting right there in a (metaphorical) pile, it is not "collation and research" in terms of the Act. There's also a clear issue here of the Ministry's duty under the Public Service Act to "foster a culture of open government", which you would think would require adhering to accepted practices about publicly releasing submissions.

Still, we've learned something: 23,000 people submitted on this draft bill. Which is an unprecedented level of interest in such a consultation.

While the Ministry promises a summary of submissions, this is not actually a substitute for the submissions themselves, for being able to read in people's own words what they think of the bill. And you have to wonder whether Rimmer's hand-picked ideologues at his pet Ministry will fairly represent the public's views in that summary. Public release is a useful check on this.

But one thing is clear: the government doesn't want you to know what the public think of their draft bill. Which invites the question: what are they afraid of?

Secrecy destroys trust: the case of the nuclear waste dump

Something I was not expecting to learn this morning: the government has built a secret nuclear waste dump in rural Manawatu:

A facility for storing all of New Zealand’s radioactive waste has been secretly built near Palmerston North, in a decision neighbouring farmers have called “horrifying” and “deceptive”.

The building, surrounded by a 2.5m-high fence, padlocked gates and CCTV, has been constructed next to New Zealand Defence Force communication dishes in rural Manawatū. The facility sits on Defence Force land – part of which was redesignated by the Health Ministry. The Health Ministry said the facility stores low-level and intermediate-level waste, such as redundant radiation devices for treating cancer patients.

[...]

New Zealand’s national storage facility neighbours prime Manawatū farmland, but residents were not informed of the building plans which were kept secret at the request of government officials.

The story is buried behind the Herald's paywall, but there's also a video version here. The video version carefully blanks out all the addresses, but the site is east of Ohakea, by the corner of Wilson and Ngaio Rd, and you can see it on Google maps here.

Is it safe? I don't see any reason to doubt it. But the government arrogantly didn't want to even make that argument, preferring to hide behind a bogus veil of "national security" to avoid objections. By doing so, they subverted the normal RMA process of having to respond to and mitigate concerns - which in this case would largely mean explaining the inverse square law, their monitoring and risk-management processes. And they prevented the RMA safeguard of having an independent, fair, and transparent appeals process to manage disagreements. I have no doubt that the government would have gained resource consent if they had done this openly.

Instead, they chose to do it in secret. And by doing that, they've made it look like they have something to hide. Because if it is safe, they would have just been open about it, right? It's a perfect example of how secrecy destroys trust, as well as a basic failure of democratic norms. And the government deserves every bit of the suspicion it is now going to get for this.

The lesson here for the government should be obvious: don't do things in secret unless you really, absolutely have to. Sadly, they'll probably take the opposite one, double down on secrecy, and try to punish its exposure. And then they'll wonder why trust in government is declining...

The Ombudsman on National's secret schools

National's charter schools bill is curently before select committee. One of the more odious features of the bill is that it makes charter schools secret and unaccountable by exempting them from the Official Information Act. No policy rationale has been provided for this unconstitutional position, but last time round it was pitched as allowing charter schools to avoid "costly and vexatious requests" - which tells us what National really thinks of transparency and accountability.

You'd expect the Ombudsman to have some pretty strong views on this (just as they did last time) - and they do. Their submission points out how this will disadvantage charter school parents and students relative to those in state schools, while removing a key source of information required for them to hold sponsors accountable for the education they're providing and for enforcing their rights in any dispute (for example, when a school makes a questionable disciplinary decision - something which happens all the time). They also point out how unusual it is to have a body subject to the Ombudsmen Act but not the OIA - essentially to be public enough for dispute resolution, but not public enough for transparency. And along the way, they suggest in a couple of comments that this means that charter schools are not going to be able to avoid requests, at least around disputes and the areas sections 22 and 23 would apply to:

If the OIA does not apply, then parents and students would need to seek reasons and relevant information from sponsors in reliance on general principles of reasonable administrative conduct.

And

It may be helpful for me to clarify that if the Bill is passed in its current form I would still expect charter schools to deal with requests for information in a way which is administratively reasonable and consistent with those fundamental rights referred to above.

What does "administratively reasonable and consistent with... fundamental rights" mean? The Ombudsman is on record (in a case regarding an OIA request by an ineligible person) as saying that the administrative reasonableness basically mean "applying the OIA unless there's a really good reason not to". As for fundamental rights, while the submission refers to the section 14 BORA right to receive information, where there is a dispute, the right to justice means a right to be told the reason for a decision and the rule(s) someone is alleged to have broken. So, while National may try and exempt its corrupt charter schools from the OIA, unless it also exempts them from the BORA, the Ombudsmen Act, and any right to natural justice - which is even more unconstitutional and delegitimising - it sounds like the Ombudsman will force them to provide information anyway. It will just be less transparent, more confusing, more time-consuming, and more expensive for everyone involved. Especially the sponsors, who will have to lawyer up to deal with the Ombudsman far more often than they would otherwise. Which just goes to show: clear legal obligations of transparency are easier for everyone.

Reported back

The Finance and Expenditure Committee has reported back on National's Local Government (Water Services Preliminary Arrangements) Bill. The bill sets up water for privatisation, and was introduced under urgency, then rammed through select committee with no time even for local councils to make a proper submission. Naturally, national's select committee has rubberstamped that, so Aucklanders should prepare to have their water stolen and privatised out from under them (and so should the rest of us).

But there are more disquieting aspects to National's drumhead rubberstamp process. I'd submitted on the bill specifically about its secrecy provisions, which appeared to inadvertently override the OIA and LGOIMA and allow water entities to charge for information they would currently have to make public for free. The Ombudsman seemed to share my concerns on charging, and in their submission recommended an amendment to say that it did not override the LGOIMA and OIA. Of course, this was ignored. In their departmental report, DIA says that it is "not the intention" to override the OIA/LGOIMA, that "[w]e consider that it could not do so without express wording to that effect", and so no amendment is necessary. Unfortunately, that explicit wording already exists in the LGOIMA / OIA savings clauses, and the Ombudsman explicitly pointed this out - but weirdly their views are not even mentioned.

(DIA takes a similar line on section 41, which forbids agencies from using shared information other than specific purposes, but the Ombudsman is more hopeful here. Where previously they would have seen this as an over-ride, now they're talking about it as merely suggesting a presumption of confidentiality and the possibility of withholding under existing grounds - a position which is quite hopeful for other clauses).

But the real problem for the committee is the Henry VIII clause, which allows certain parts of the law to be repealed by Order in Council. The Regulations Review Committee quite rightly got very shitty about this, pointing out that it is improper to allow Ministers to amend or repeal statute by royal diktat. Naturally, they were ignored by National. Their excuse?

Further, we note that an Order in Council made under this provision would be secondary legislation subject to Parliamentary presentation and disallowance processes, in accordance with the Legislation Act 2019.

Which sounds fine. Until you read down to the schedule, and see the committee has snuck in a consequential amendment which specifically exempts the Henry VIII clause from the very presentation and disallowance processes they are hiding behind (you can see here what they are amending). Its not clear why they have done this - there is no rationale in the select committee report, or the departmental report - but it gives the impression that the committee are either two-faced liars operating in complete bad faith, or incompetent morons who have no idea what they are doing. And neither is a very comforting explanation.

Some "scrutiny" again

Back in 2022, in its Open Government Partnership National Action Plan, the government promised to strengthen scrutiny of Official Information Act exemption clauses in legislation. Since then they've run a secret "consultation" on how to do that, with their preferred outcome being that agencies will consult the Ministry of Justice more when attempting to introduce new secrecy clauses. So how's that working out for them?

Terribly. The latest example is National's Education and Training Amendment Bill, which legalises over-funded, under-regulated, inherently corrupt "charter schools". As part of their crusade against transparency for these corrupt entities, they will be completely exempted from the Official Information Act - robbing parents, children, and the public of vital oversight. You'd think that exempting a new class of organisation from the OIA is the sort of thing that the Ministry of Justice would be consulted on, given the promise of stronger scrutiny. But of course they weren't. So I guess we can conclude that that promise, like everything else said by this government, is just bullshit and hot air.

As for MoJ's claim that they might not have been consulted because the clause was previously in the Education Act under National's last attempt at this corrupt scam, yeah, nah. The clause wasn't mentioned in the 2012 bill's RIS, so it seems that it wasn't scrutinised back then either. Back then the Ombudsman called it "unconstitutional and dangerous"; hopefully they'll mount a similar defence to the current bullshit.

National's secret schools

The government just introduced its Education and Training Amendment Bill to the House. The name is deliberately obfuscatory, because what the bill actually does is reintroduce charter schools - effectively allowing National to privatise the education system. That's corrupt and it stinks, but to add insult to injury, National's new schools will be secret: the OIA will specifically not apply to them:

[That "Compare" note is to National's repealed charter schools law]

How does this matter? Well, state schools are fully subject to the OIA. That means they can be asked about things like uniform policies, staff pay, maintenance or library spending, health and safety precautions, bullying incidents, or disciplinary decisions - all of which have obvious interest to parents. They are (legally) transparent, and people use that transparency to hold them accountable and ensure their kids get a good education and are safe. But charter schools will not be transparent. Instead, all of that information will be kept secret, rendering them unaccountable. They will be able to profit gouge on their contracts by skimping on maintenance spending or staff wages, treat their students and staff arbitrarily and unfairly, and run an unsafe environment. While some information may still be accessible via the Ministry of Education under the contractor clause, much of the information listed above will not be held in their capacity as a contractor - meaning it will be secret. The implications for the fairness, accountability, and safety of these institutions is obvious.

Why has National done this? They don't say. There's no mention at all of the OIA exemption in the bill's Departmental Disclosure Statement or Regulatory Impact Statement. While some released Cabinet papers note that charter schools will be exempt, there is no justification for it. This I guess is what the Ministry of Justice calls "stronger scrutiny".

the case for the OIA to apply to charter schools is clear: they are performing a public function. We are paying for them. It is essential that they are transparent and accountable to the public. National's preference for secrecy is not only repugnant to our constitution and our democratic values - it will lead to unsafe, unfair, and dangerous schools. It should not be tolerated.

Some "scrutiny" II

Last month I blogged about the Ministry of Justice's Open Government Partnership commitment to strengthen scrutiny of Official Information Act exemption clauses in legislation", and how their existing efforts did not give much reason for confidence. As part of that, I mentioned that I had asked the Ministry for its "scrutiny" of a bunch of recent bills containing secrecy clauses. They didn't want to do the work, but they agreed to look at what they'd said about six bills. They gave me the information (such as it was) today, and it turns out that they had not been consulted on any of them. Worse, they only recognised interactions with the OIA in three of the six bills, and in those three, they missed the actual issues (the annotations on the reply show exactly what they missed).

From this, I think its clear that the Ministry of Justice wouldn't recognise a secrecy clause if it bit them in a very uncomfortable place. And as they're the agency responsible both for the OIA, and for scrutinising legislation to ensure that secrecy clauses are justified, that seems to be a problem. (Its also clear that other agencies don't recognise them either, and so fail to consult. But the primary responsibility here is on Justice, which should both be educating them, and proactively hunting such clauses).

There's another problem as well: in their response the Ministry said

We note that the Ministry would not likely have been consulted on an OIA exemption provision in a bill if such a provision was already present in the principal Act.

The problem here is that many of these "exemption provisions" - MoJ's toned-down way of referring to secrecy clauses - are old, possibly even ancient or archaic. Meanwhile, both the law and our attitudes to transparency have shifted. There's the OIA itself, of course, but also the Bill of Rights Act, section 14 of which protects the "freedom to seek, receive, and impart information and opinions of any kind in any form" [emphasis added] - language which is recognised internationally as covering freedom of information laws. Plus there's been 30 years of progressive transparency since then, with more and more information routinely released, and assessments of the harm from release of certain types of information - particularly commercial information - changing with experience.

The upshot from this is that simply because an existing law requires secrecy does not make it OK. And if that law is being re-enacted, that is a perfect time to re-examine that secrecy clause from first principles to see if it can still be "demonstrably justified in a free and democratic society". Unfortunately, no-one is doing this, and in its consultation paper, Ministry of Justice made it clear they were opposed to such work. And so secrecy persists by inertia, and expands by ignorance and over-deference, and our right to transparency is eroded.

Some "scrutiny"!

Back in February I blogged about another secret OIA "consultation" by the Ministry of Justice. This one was on Aotearoa's commitment in its Open Government Partnership Action Plan to "strengthen scrutiny of Official Information Act exemption clauses in legislation" (AKA secrecy clauses). Their consultation paper on the issue focused on strengthening "scrutiny mechanisms" - essentially interdepartmental consultation - without saying what these clauses would be scrutinised against or the circumstances in which they might or might not be justified.

Which invites the question: how well is such scrutiny working at the moment? The Ministry of Justice is responsible for the OIA, so in theory other agencies should be consulting them before messing with it. And if they were a good guardian, they'd couple this with active monitoring of upcoming legislation (a lot of which will cross their desk anyway) to spot cases where this hasn't been noticed. So, I did some poking with the OIA, sending them a list of 37 recent bills which contained secrecy clauses, and asking for their consultation advice on them. That was obviously a lot of work, and the Ministry didn't want to do it. But their background research for their OGP consultation had included a study of eleven bills, and they agreed to release the consultation advice they had produced on those (as well as six more bills later).

And here's the advice. Of the eleven bills in their study with identified secrecy clauses, the Ministry of Justice had been consulted on just two of them. I should note that one of the bills was "owned" by the Ministry of Justice, so shouldn't be included in the total. Which makes it two out of ten - a nice, round 20%. Some "scrutiny"! And we wonder why the government keeps passing these things? Partly, because the agency responsible for the law doesn't even know it is happening.

As for their plans to improve scrutiny, the New Zealand Council for Civil Liberties did a recent request on that using FYI. Digging through the documents, a bunch of the agencies Justice wants to be a check against secrecy clauses - the Parliamentary Counsel's Office, DPMC, the Office of the Clerk - are saying "nope, not our problem". Which means their "improved" scrutiny is going to end up looking a lot like the current "scrutiny", only maybe with a little note on a webpage somewhere. Meanwhile, the question again of what can justify departing from our constitutional principle of transparency goes unanswered, and the Ministry redacts any suggestion that these clauses might not be justified. Whether that is an appropriate outcome for an OGP commitment is left as an exercise for the reader.