Friday, November 01, 2019

This government has a problem with secrecy

As introduced, the Zero Carbon Bill included an expansive secrecy clause, which would have covered virtually all decisions by the Climate Change Commission over our most important policy area. The Ministry for the Environment admitted this was a mistake (or as they put it, an "oversight"), and the select committee removed it. But at the same time, they introduced a new secrecy clause in s5ZV covering information requested by the Commission or the Minister about Adaptation.

How did they get here? Unfortunately the full advice isn't available yet (I have an OIA request in to get it, but they'll likely say "secret" again, just like they did with the original). But there's some clues in the supplementary advice given by MfE to the committee on the issue. The first thing to note is that this clause seems to have been proposed by MfE when proposing amendments to the bill. The committee expressed concern about it, and wanted to know why it went beyond the requirements of the OIA. MfE's response was to try and justify it:

The types of information that would be gathered through the adaptation reporting power may be highly sensitive in nature (e.g. trade secrets, privileged legal advice, financial information, etc.). Therefore, a mechanism to prevent public disclosure of this information is necessary. However, it is not proposed to be a blanket protection...
But first, they have proposed a blanket protection, which would forbid any disclosure whatsoever, ousting all other law. Second, almost all of the agencies from which information can be requested are public agencies, already covered by the OIA, so the effect of the clause is to make public information secret. Third, for the few edge cases which aren't already covered by the OIA, this evades the obvious question. What about the existing protections in the OIA? Here, MfE's advice has a section titled "Limitations of the Official Information Act 1982 to protect sensitive information", but they don't actually provide any. They say nothing about why the OIA is supposedly insufficient. Instead, they seem concerned about it limiting the ability of the government to use the information it has requested. Which is exactly the sorts of fundamental misunderstanding of the law which led them to propose the original secrecy clause. It's advice so bad, it comes close to misleading the committee, and thereby misleading parliament, and I am absolutely astonished it was accepted.

So, to give the committee the advice MfE didn't: the OIA already protects trade secrets, commercially sensitive financial information, and privileged legal advice. It also protects information where production has been required by law and it is important that it is supplied in future. While these protections are all subject to the public interest in disclosure, that interest is much lower for third-party information, and in practice these provisions are some of the strongest in the Act. Absent some compelling reason - which MfE simply hasn't provided - there seems no reason to believe these existing protections will be insufficient. The clause is unjustifiable and should be struck from the bill at the committee stage.

Meanwhile, it has become clear from both this and other cases where such clauses have been introduced that this government has a secrecy problem. They, or a clique of public servants, do not trust the Official Information Act and are trying to gradually oust its transparency regime by stealth, a bit at a time. And this is not something we should accept. Government business is public business. Government information is public information. It belongs to us, not them, and any politician who does not accept that deserves de-election.

Update: And then, not ten minutes after posting this, I find the "justification" in another report (on p 121 - 125). And it basicly boils down to private sector paranoia about the possibility of disclosure under the public interest clause, and a complete failure to conduct any actual analysis of how likely that is or when it might happen. It then suffers from the same problem of fundamental misunderstanding of the law and drafting failures as the earlier secrecy work: they think they're not creating blanket secrecy, but they are. And it really calls the competence of MfE's advisers in this area into question.