Thursday, September 27, 2018

The Ombudsman's misleading guidance on drafts

The Ombudsman has released guidance today on The OIA and draft documents. Its part of their overall program of providing greater advice to ensure government agencies interpret and apply the law correctly. But is also part of the distressing recent trend of the Ombudsman collaborating in promoting greater secrecy and less openness from government.

Draft documents are a useful thing to request. If the government has released a controversial report or advice which seems to leave something out, the best thing to do is to request all drafts and communications around it. This may expose why omissions were made, how the final advice was shaped, and what policy forces helped shape it. Such requests inform the public and help hold the government and officials to account. They help ensure that advice and reports are of high quality and defensible, and that obvious omissions are subject to scrutiny. However, they've never been popular with public servants, who have had a long-standing myth that draft documents are (or at least should be) immune from such scrutiny, and that they couldn't possibly do their jobs if people looked every so often to see if they'd done them properly.

Sadly, the Ombudsman seems to be backing this view. The guidance is basicly a laundry list of how public servants can refuse requests for drafts, and seems to predetermine decisions about early-stage drafts by saying that the "Ombudsman position" is that it is more likely to be necessary to withhold them. But worse, the whole of the guidance, starting from the very first sentence, is that it is about withholding draft documents. There is no mention anywhere in the guidance of s17 of the OIA, which begins:

Where the information requested is comprised in a document and there is good reason for withholding some of the information contained in that document, the other information in that document may be made available by making a copy of that document available with such deletions or alterations as are necessary.
[Emphasis added]

I agree with the Ombudsman that they may be good reason to withhold some information in drafts. While I disagree with the Ombudsman on the scale of "free and frank" expressions of opinion and the damage release of them may do, I admit they can exist.1 However, the proper response under the law to a request for a document containing such material is to redact it, not to withhold the document in full. The Ombudsman's guidance misleads public servants about their legal duty and promotes unnecessary and unlawful secrecy. And by doing so, it both encourages unlawful decisions and the consequent complaints, and undermines confidence in the Ombudsman as a fair arbitrator of our official information system. It should be withdrawn and rewritten immediately.

1 Unlike the Ombudsman, I believe our public servants are professionals who will do their jobs properly and submit defensible advice which will withstand public scrutiny at all stages of the policy process - and that there is high public interest in exposing the cases where that does not happen and where Ministers were advised of problems and did it anyway. But as applied, the "free and frank" clause mostly serves to protect unprofessional and self-serving behaviour, rather than the public interest in accountability.