Tuesday, June 11, 2019

The OIA and Parliamentary Privilege

Immediately after being elected in 2017, the government started playing bullshit games over answers to written parliamentary questions. Since those games seemed to be systematic, I asked the likely culprit - Chris Hipkins - whether he'd given advice to other Ministers on how to answer questions, and if so, for copies of that advice. The request was refused, so I complained to the Ombudsman. And in the process of that complaint, the Minister's office tried to deny the jurisdiction of the Ombudsman over the matter, citing Parliamentary Privilege. Written questions are a proceeding in Parliament,and so could not be questioned before any court or tribunal - including the Ombudsman. While I eventually got a ruling, there was a lot of uncertainty about the interaction of the OIA and the 2014 Parliamentary Privilege Act, so I asked the Ombudsman and the Speaker to publish some guidelines on the issue so we would all know where we stood. The guidelines are now online here. The short version:

Official information cannot be withheld just because it constitutes parliamentary proceedings.

The PPA does not provide a reason for withholding such information. Releasing it under the OIA would not be ‘contrary to’ the PPA. Nor would it ‘derogate’ from the PPA.


However, neither Article 9 nor the PPA prevent the Ombudsman from carrying out their investigative role under the OIA, in relation to complaints about the withholding of information that constitutes parliamentary proceedings.

The Speaker of the House has said he does not see a general conflict arising from the Ombudsman performing the duties of that office, including conducting investigations into the withholding of official information that may also be a proceeding of the House

So Chris Hipkins' attempt to undermine the OIA failed. As for the specific request? Well, that failed too, as advice on answering questions is immediate and informal and so needs to be protected as "free and frank" to prevent Ministers and their officials from refusing to document it. Or, to put it another way: the threat that Ministers and officials may behave unprofessionally justifies protecting them when they behave unprofessionally. As someone who believes in accountability, I find this logic utterly perverse. Unmentioned in the summary in the guide is that parliament also supposedly holds itself to account. But given that those same bullshit games are continuing, how about that actually happens, rather than the theoretical possibility being used to protect the powerful?

Correction: The Minister's office did not try to invoke Parliamentary Privilege over this issue, or deny the jurisdiction of the Ombudsman. The Ombudsman considered the matter as a general issue on his own initiative. The issue had arisen in another complaint I had also made, and I had confused the two.