Monday, September 20, 2010

The "out of scope" game

The latest tactic by the government in their war to avoid the OIA: unilaterally withholding material as "out of scope" of the request. This is generally within the Act - they only have to give you what you have asked for. However, when they suddenly start deciding that parts of individual documents are somehow outside the scope of your request, its a bit suspicious. Especially when you have asked for "all advice" on a particular topic.

Today's abuser is of course Climate Change Minister Nick Smith, whose devotion to secrecy has extended so far as to claim he was violating the Public Records Act by not keeping copies of any OIA correspondence (the Ombudsman called bullshit on that one pretty quickly). Back in July he promulgated regulations setting allocative baselines for "trade exposed" industrial emitters. I was interested in finding out whether those baselines were set at a fair level, or just a giant money grab by greedy polluters, so I asked for all advice on their setting. A week after the 20-day deadline had passed, I finally received a fat file full of documents, and was somewhat surprised to see great chunks of them (including all information on costs, and other mysterious sections) labelled as "out of scope". They might as well have labelled them "place followup request here", so that is exactly what I did.

The result - stamped last Wednesday after 22 working days, but not actually emailed until today (so 25 working days - naughty, naughty) - saw some of the information (e.g. on costs and the names of specific companies, though we know who they all are anyway) still withheld, though at least now Smith has been forced to give a reason. As for the rest, I'm at a loss to see how it was not "advice" falling within my original request. I'm equally at a loss to see why Smith wanted to hide it in the first place, beyond a pathological desire for secrecy on his part.

For example, Smith originally withheld part of a document advising that manufacturers of fruit pulp and agricultural lime likely did not qualify for a pollution subsidy as they were not sufficiently polluting or not trade exposed, and that they would be notified of this. Clearly "advice", but I'm not sure what he was trying to hide here. There was a similar withheld section on problems with getting data for glass containers, but from the advice in a later Cabinet paper and presence in the regulations, these seem to have been solved. Finally, great chunks of a Cabinet paper in which Smith advised that he needed an exemption from the normal 28-day rule in order to get the regulations in force in time but advised them that the consultation process meant everyone had had enough time to prepare. Again, "advice", but difficult to see what the harm was. Oddly, he also tried to withhold all his certifications that various consultation and legal provisions had been complied with, which is just a little odd.

So what the hell was Smith doing? I don't know. But what I do know is that this information clearly fell within my request and was initially unlawfully withheld for no apparent reason. But what can I do about it? A complaint to the Ombudsman at this stage is simply a waste of their valuable time, which could be spent dealing with other cases where something important is at stake (such as this one). OTOH, not complaining lets the Minister get away with ignoring the OIA - not something we should accept, even in minor cases like this.

Either way, there's a clear lesson here: if a Minister labels something as "out of scope", request it. That way they'll have to find an actual reason, or come clean.