Wednesday, January 24, 2018

How bad OIA decisions are made

Last year, Open Government Minister Clare Curran was publicily shamed in the House over her apparent refusal of an OIA request. The Opposition had requested a list of all reports, briefings, memos or aides memoire received since she was sworn in as a Minister. Most of us would regard that as pretty clear. Instead, as part of the government's "fuck you" to opposition questions, she tried to pretend that the requester did not specify the information it was seeking with "due particularity" and effectively refused it. I was curious about how such a blatantly unlawful decision was made, so I used the OIA to request all correspondence about the original request.

Curran's response can be viewed on DocumentCloud here. While most details - including some apparent discussion - have been redacted for privacy (fine for names of junior staff; not fine for what they are saying unless its irrelevant to the topic), it is clear how this decision was made: because the Prime Minister's office told her to refuse the request.

The smoking gun is here. A Senior Ministerial Advisor in the Prime Minister's office emailed to say that similar requests had been received by all Ministers and to advise that they should be asked to refine their request. Curran's office obeyed. That same Senior Ministerial Adviser in the PM's office subsequently emailed to pass on the clarification that had been received, pretended that it also did not meet the "due particularity" test, and recommended that the request be refused. The good news is that this advice was not accepted: Curran instructed her staff to continue the request, and the requester received a proper response in late December.

Interference by Ministerial Advisers in the OIA process was one of the issues raised in Beverley Wakem's OIA review, though largely in the context of agency decisions. Here, we have a Ministerial Adviser interfering in the OIA decisions of other Ministers, and giving advice that seems blatantly unlawful. And that's simply not acceptable. The good news is that Ministerial Advisers are now subject to the SSC's Standards of Integrity and Conduct, which include a requirement to act "lawfully and ethically". This adviser hasn't. Their identity can easily be determined from the information in the OIA response. The question is, will SSC actually do anything about it, or is their Code just a joke?