Tuesday, August 27, 2019

Yet another attack on transparency

The Finance and Expenditure Committee reported back on the New Zealand Infrastructure Commission/Te Waihanga Bill on Friday. Its a boring bill which would establish a Crown Entity which would produce reports about infrastructure needs, so I hadn't paid attention to it. I should have, because the bill includes a - increasingly common - secrecy clause, forbidding disclosure of any information gathered using the Commission's information-gathering powers unless it is already publicly available, in statistical form, or required by an enactment. The kicker? Those information gathering powers apply only to:

  1. a department named in Schedule 1 of the State Sector Act 1988, other than [the GCSB or SIS]
  2. a departmental agency named in Schedule 1A of the State Sector Act 1988:
  3. a statutory entity named in Schedule 1 of the Crown Entities Act 2004:
  4. the New Zealand Defence Force.:
  5. a local authority, as defined in section 5(1) of the Local Government Act 2002:
  6. a council-controlled organisation, as defined in section 6 of the Local Government Act 2002 (but disregarding subsection (4) of that section):
  7. Auckland Transport, as defined in section 4(1) of the Local Government (Auckland Council) Act 2009.

And disregarding some twists and turns around council-controlled port companies, every single one of those bodies is already subject to the OIA or LGOIMA. So, if they give information to the Infrastructure Commission (which as a Crown Entity is explicitly subject to the OIA), it becomes secret - but if you ask them directly, the usual rules apply.

It gets worse, because the Select Committee spent some time thinking about the OIA and LGOIMA and how it applied, tightly restricting the reasons an agency could refuse a request for information from the Commission and including a clause (currently s23(4A)) saying that information could not be withheld from the Commission if it could not be withheld under the OIA or LGOIMA. But somehow, in all of this, no-one on the Committee thought to question whether it was necessary to apply secrecy to information that was already presumptively public, and clearly no-one thought about it in the drafting process either. Our government is basicly completely blind when it comes to open government and proactive steps to protect it.

The fix for this is simple: amend s25 at the committee stage to explicitly permit disclosure under the OIA. But in the longer-term, this needs to stop happening. The government needs to think about transparency and open government when designing legislation, just as they do about human rights, the Treaty, and gender equality. Getting them to do that would make a great Open Government Partnership commitment.

(And meanwhile, there's another one: the new Venture Capital Fund Bill allows the (Crown Entity, subject to the OIA) Guardians of New Zealand Superannuation to create "VCF investment vehicles" under their control which are explicitly exempted from the OIA. This runs counter to the usual control principle, under which government-controlled entities such as subsidiaries of CRIs, SOEs and Crown Entities (and local government ones like CCOs) are subject to the OIA and/or Ombudsmens Act. No policy justification is provided for this secrecy).