Friday, January 15, 2010

OIA review: Sanctions

The law Commission is currently reviewing the Official Information Act 1982 and Local Government Official Information and Meetings Acts 1987. One of the areas they are interested in is sanctions. Currently the Acts are enforced by the Ombudsmen, who make (non-binding, but in practice always obeyed) "recommendations" on whether information should be released. As most breaches are inadvertent or a result of a misunderstanding of the law, this works reasonably well - but it still provides no real incentive to e.g. respond to requests on time. And as the Law Commission notes that there may be times when an agency sets out to deliberately flout the law, and that proper sanctions may be appropriate. I'd like to see this, but given the distributed nature of the work involved in responding to a request, I'm not sure if its do-able. And fining some bureaucrat because the Minister is lax about responding to "consultation" would be grossly unfair.

One of the big problems is lateness, and the best solution to it is more information. Agencies already centrally log requests for internal monitoring (both of performance, and what is being requested); requiring them to publish both annually and in realtime the statistical information from these logs (requests received, processed, outstanding, dealt with within 5, 10, 15, 20, etc days) would provide both a public benchmark by which to measure performance and a public stick to beat non-performers with. Call-centres do this as a management tool to provide pressure on their employees to perform; there's no reason we can't do the same with the government.

There are other things we can do. The New Zealand public service operates on a managerialist philosophy, with departmental chief executives responsible to Ministers for every aspect of the performance of their departments through an annual delivery agreement. Prompt and lawful handling of OIA requests could be written into those agreements, with CEOs losing their bonus or facing a set monetary penalty for any violation of the law. We use this technique for other key areas (on the basis that CEOs will then manage their departments to produce the desired results); all it requires is to elevate the government's duty to provide official information seriously enough to make it a key performance indicator.

As for Ministers - some of the worst abusers - I'm in favour of naming and shaming. Currently, if the Ombudsmen delivers an adverse OIA decision against a Minister, no-one hears about it (unless the requestor was a media outlet and they decide to kick up a stink). As a result, we don't know who is obeying the law and who is consistently violating it. Requiring Ombudsmen's decisions against Ministers to be tabled in Parliament would provide public information on this, and the natural desire to avoid bad publicity would give Ministers an incentive to obey the law.