Wednesday, July 03, 2019

Odious secrecy III

Back in May the government released its Zero Carbon Bill. While much of the bill was welcome, there was one big exception: it contained a secrecy clause, requiring the Climate Change Commission to maintain secrecy over practically everything it does. Not just over private or commercially sensitive information it obtains from businesses as part of its regulatory functions, but everything - including its internal drafts and advice on budgets, targets, and whether the government is meeting them. The clause effectively overrides the Official Information Act, making key advice in our most important policy area more secret than the darkest secrets of the SIS or GCSB.

How did this attack on accountability come about? I asked the Minister, who thought it was about the need to "safeguard legally privileged or personal information". This is rather odd, as these interests are already safeguarded under the OIA. So I asked the Ministry for the Environment, who drafted the bill. It turns out that the only advice on this issue is emails, some of which are released here.

Reading through them, it seems the government had wanted various bodies to be able to share information with the Climate Change Commission, and they had considered various ways of doing this. In the end, they realised that the only body they needed a specific clause for was the EPA, because it was bound by secrecy. They spotted the obvious fix: amend s99(b)(2) of the Climate Change Response Act to enable the EPA to share information. To address the EPA's concerns about confidentiality, they decided that "the s99 obligations of confidentiality [should] apply to the Commission in respect of that information". But somehow, the clause ended up wider than that, applying to all of the Commissions functions.

How did this happen? Unfortunately, we don't get to know. All the relevant advice is withheld as "legally privileged". That's right: the justification for a dramatic expansion of secrecy is itself secret. But its worth noting that nowhere in any of the published advice is the OIA or the interest of transparency mentioned at all. And the Ministry of justice - which should be consulted about anything to do with the OIA - was not consulted about it.

Maybe there's a good case for why the Climate Change Commission needs greater legal protection for its information than the GCSB and SIS. If so, the government needs to publish it. Because they haven't made any sort of case, and at the moment it just seems like an unjustifiable over-reach. And the net result will be to both undermine the accountability of the Commission, and reduce its credibility. And where our most important policy area is concerned, that is simply not acceptable.