Monday, September 26, 2016

Investigating Key's dirt machine

Back in 2014, John Key admitted that his staff were "briefing the bloggers" and using them as a backchannel to plant stories in the media. A number of people (including myself) were interested in this and lodged OIA requests for the details. The PM rejected these requests by playing the "hat game": the information was held in his capacity as the leader of the National Party, not his capacity as a Minister. But now, two years after my complaint was lodged, the Ombudsman is finally investigating it, along with an earlier request from NewstalkZB:

The Chief Ombudsman will investigate the Prime Minister over his refusal to release details regarding his, and his office's contact with right-wing bloggers David Farrar and Cameron Slater.

Back in early 2014 Newstalk ZB requested records of all such contacts that had occurred over a two year period.

John Key's office declined to release details, saying to do so would require substantial research and collation and also that some communications may have been made in Mr Key's capacity as an MP and leader of the National Party.

(I'd requested communications from a specific month, precisely to avoid "substantial research and collation").

When I originally complained, I had argued that the PM had not established that the briefings were not given in an official capacity:
While the PM's office is correct that he wears multiple hats, and information held in the capacity as leader of the National party or as an MP is not "official information" under the Act, he has not established that the information is held in such a capacity. One of the key allegations of Nicky Hager's "Dirty Politics" (which given your investigation into OIA processes I'm sure you're aware of) is that bloggers were being briefed by staff employed by Ministerial Services - that is, paid by the public. If that is the case, then that would make them definitively official information. In the case of the Prime Minister personally, the status of any briefing would have to be judged from the context in which it was given e.g. whether it was given on a day normally reserved for constituency or personal business, or during his "normal" office hours as Prime Minister. It can also be judged from the content e.g. if it is regarding official information or any OIA request then it must clearly be given in the capacity as Prime Minister, because the leader of the National Party or John Key MP do not "hold" such information and do not process such requests.

In the two years since, the OIA ground has shifted. Information held by the PM is now official by default, and he has to show it is held in another capacity. Whether that is actually the case will depend on the facts, but I think there's a good chance that they won't support a private capacity in every case, and that we'll see an official view of the heart of the PM's dirt machine.