Friday, October 05, 2018

Contractors, public records, and the OIA

One of the big shifts in government over the last 30 years has been the move to contracting out of services. Budget cuts, staff caps, and the pressure to "do more with less" has seen agencies contract out core operations, sometimes to low-cost providers, sometimes to the very people they've just sacked. But this raises issues around official information, public records, and our right to access them. Are agencies protecting our rights and complying with their statutory obligations?

The answer, according to an OIA filed through FYI, the public OIA system, is "partly". The requester asked for information on MPI's contractor email records policy, and specifically how Public Records Act compliance is managed. MPI's response includes the relevant contract templates for each of the three types of arrangement contractors are hired under. Contractors employed under a Work Authorization agree to turn over all information and intellectual property to MPI at termination. Those employed under an all-of-government recruitment agreement are merely required to conform to New Zealand law and to MPI policies (which includes adhering to the OIA). Only the government's Model Contract for Services includes a specific OIA / Public Records Act clause, requiring contractors to keep records, turn them over immediately if required to perform a statutory duty (and in a reasonable timeframe otherwise), and store them for seven years after termination. Which neatly covers OIA responsibilities during the contract, but unless MPI and other agencies demand a full turnover at the end of a contract, means this official information effectively disappears from government control (and public access) the moment a contract ends.

Whether they do in fact ask for such a turnover seems like a good subject for a followup request, perhaps to multiple agencies. But if they don't, then with increasing use of contractors, we run the risk of an increasing chunk of our public records disappearing from the public record.