Thursday, November 24, 2011

The OIA, "confidential advice", and democracy

One of the more contentious clauses of the Official Information Act is s9(2)(f)(iv), the "confidential advice" clause allowing information to be withheld to

maintain the constitutional conventions for the time being which protect[s]... the confidentiality of advice tendered by Ministers of the Crown and officials
This is supposedly necessary to protect the decision-making process, but the underlying thinking is that it is supposedly impossible for the government to make a decision when us dirty peasants are looking over their shoulder and demanding justifications. As that choice of language indicates, I think this is a deeply, deeply undemocratic idea.

Sadly, its exactly this undemocratic thinking which underlies the Ombudsman's decision [PDF] supporting continued secrecy for Treasury's privatisation advice:

I have viewed the information at issue. It comprises early advice on two of the many aspects under consideration: encouraging New Zealand participation and limiting foreign ownership. It is in the nature of possible options for consideration, rather than detailed advice and recommendations as to action. Any detailed advice and recommendations as to action will come after the election, once the preparatory work, including detailed scoping studies, is complete. Seen in this context, the information at issue may be characterised as limited in scope, as well as partial and incomplete. Treasury submitted that release would create pressure to design and structure a sales programme based on one or two narrow aspects, rather than what would be the best design and structure for the Crown and investors taking into account all relevant aspects.
(Emphasis added)

Or, to put it another way, if they told us what the options were, the government might have to do what we wanted, rather than what they wanted. This would, apparently, be a Bad Thing in a democracy.

The purpose of the OIA is to allow us greater participation in government. But not, apparently, too much. When push comes to shove, we're back to feudalism, with rulers making the decisions, and everyone else shut out of the process and presented with a fait accompli. This isn't good enough. We need to reform the Act and repeal these undemocratic clauses. If the government can't make its case for action in public, then that case clearly isn't good enough. The only thing secrecy protects is poor policy and the undemocratic impulses of our politicians.