Tuesday, November 25, 2014

Abuse of power: The OIA / public records dimension

One of the things to emerge from the "dirty politics" report is that the SIS pissed all over the OIA:

The NZSIS also made a significant error in considering information requests by the news media. Such requests were, from 25 July to 5 August, not treated as OIA requests but simply denied.

Meanwhile, they were bending over backwards to accommodate Slater's request. But despite the fact that they'd gone to the same email address and it was the same staff handling them, the IGIS finds no politicisation; instead the SIS suffered from doublethink, an imagined distinction between "media inquiries" and OIA requests. There is no such distinction. As the law makes clear, any request to a Department, a Minister, or an agency, is legally an OIA request, and has to be answered. And every time a Minister says "no comment" to a duly particular media inquiry about information they hold in their capacity as a Minister, they are breaking the OIA and could become the subject of an Ombudsman's complaint.

And then there's this bit:
I issued a production order to Mr Ede in respect of his personal email accounts after it became apparent from evidence, including evidence provided directly by Mr Ede, that some of the correspondence pertinent to this inquiry was conducted from non-official email accounts. Upon receipt of the production order, Mr Ede provided a supplementary written statement to the inquiry in which he advised that the emails had been permanently deleted prior to the commencement of the inquiry and could not be recovered. I made my own enquiries and confirmed this was the case.

The IGIS is primarily concerned about the security implications of this, but there's another one. Insofar as they deal with official Ministerial business - and if it deals in any way with official information its Ministerial business, as Ministers do not hold such information in their political capacity as MPs - then this appears to violate the Public Records Act, putting Ede on the hook for a $5,000 fine per email. Its small potatoes, but in the absence of a crime of "crimes against democracy", it will have to do. Meanwhile, we have to wonder how many other Ministerial staff are doing this in an effort to evade the OIA. Its time for the Chief Archivist to do an audit.