Monday, November 19, 2018

The government's secret OIA plans

Back in September, when the government announced plans to increase proactive release of official information, we learned by accident that they were also considering another review of the OIA, and "intend[ed] to carry out targeted engagement to inform a decision on whether to progress a formal review". As someone interested in OIA reform, I was naturally curious about this, so I sent an OIA off to Justice Minister Andrew Little seeking information about the proposal. I finally got the response back on Friday, after a month-long extension for "consultation". Unfortunately, its not very informative.

You can read the released documents here. As is obvious, all interesting information about the proposal has been redacted. All their specific proposals for reform are secret, as is practically everyone they plan to consult in their "targeted engagement". People with specific expertise in the law? Secret. Bloggers and commentators? Also secret. They do list some media organisations, and the members of the OGP Expert Advisory Group, but everyone else is secret. Which is outrageous when you think about it. The OIA is quasi-constitutional legislation, something that belongs to (and affects) all of us. But rather than a full public consultation, they plan to privilege some voices over others, presenting their select secret proposals to a select secret group, then presenting the stovepiped results to us as a fait accompli. And they kept this entire process secret as well: they decided it all back in May, but never announced anything. The only reason we know about it at all is because of a passing reference in another document. Whether these are the actions of a government committed to transparency, accountability, and participation is left as an exercise for the reader.

As for the quality of their proposals, well, they're secret, so we can't tell. But what they do reveal isn't encouraging. For example, the Ministry of Justice's brief advice on whether the OIA should be extended to Parliament cherry-picks its examples to include only those that support the status quo, while ignoring the obvious counterexample: the UK Parliament is fully subject to its Freedom of Information Act, and this has brought about a huge improvement in accountability. Which doesn't provide much reason for confidence in the quality of their advice. And while they don't seem very keen on extending s48 of the OIA to cover proactive release, repeatedly highlighting the Law Commission's recommendation against extension, all their actual advice is secret, so we can't tell whether its robust or flawed. Which given the huge potential for abuse in the proposal - it would basicly give Paula Bennett total impunity to dox people at will with their benefit, medical, police and tax records - is something we need to know.

We deserve better than this. Its not just politicians, journalists and trouble-making bloggers who use the OIA, but all of us. Steven Price's 2005 study of the OIA contained an extensive list of examples of how ordinary citizens use the Act, and summed it up as "the stuff of democracy". According to the Ombudsman's 2017-18 annual report, individuals made three times as many OIA complaints as journalists, and its 5.5 times as many when you look at the LGOIMA. In short, it's our Act, not theirs. And any non-trivial changes to it require publicly consulting all of us, not just a select group of chosen insiders.

Update (31/1/19): Andrew Little has reconsidered his decision and released the options under consideration. More information here.