Tuesday, May 14, 2019

Chipping away at the OIA

Last week I highlighted an odious secrecy clause in the government's Zero Carbon Bill, which unnecessarily exempted information from the Official Information Act, undermining transparency and accountability. The government's Equal Pay Amendment Bill is back from select committee today, and there's more of the same. The committee decided that it would be beneficial to require employers to lodge copies of equal pay settlements with MBIE "for statistical or analytical purposes". But in the process, they include a specific clause stating:

Nothing in the Official Information Act 1982 applies to copies of pay equity claim settlements delivered to the chief executive under subsection (1).

The purpose of this is to protect confidentiality - its someone's employment agreement after all, and private to the parties involved. Which is a reasonable goal - however, it is one which is already protected by the OIA, specifically s9(2)(ba)(i), which allows information to be withheld to
protect information which is subject to an obligation of confidence or which any person has been or could be compelled to provide under the authority of any enactment, where the making available of the information would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied

That clause is subject to a public interest test, but we've seen from the application of s9(2)(h) on legal advice that the OIA recognises different thresholds for public interest depending on the type of information. And if you look at the Ombudsman's guidelines on public interest, most of the usual reasons - transparency and accountability of government, participation, accountability for public expenditure - don't really apply (they would apply if the contract was one for a government agency, but then it could be requested from that agency directly). Meanwhile, the clause would forbid the government from providing information even if it had already been made publicly available elsewhere (meaning there was no harm in release), or for purposes which would advance the purpose of collection (e.g. independent academics analysing equal pay claims to see if government policy was successful).

This is overkill. It has been sprung by the select committee by surprise, with no opportunity for the public to comment on it (which ought to be a no-no when messing with a constitutional Act like the OIA). But it also seems to be part of a pattern. A disturbing picture is emerging of a government chipping away at the OIA, exempting information here, exempting information there, while undermining its principles. And that is not something we should accept. This clause must be removed from the Bill.