Monday, December 09, 2019

Public sector dysfunction should not be allowed to undermine freedom of information

Another day, another piece of legislation with a secrecy clause. This time its the innocuous-seeming Mental Health and Wellbeing Commission Bill, which (after establishing a new body and making it subject to the OIA in three different ways) includes the rapidly-becoming-standard clauses enabling it to request information from other public agencies (subject to specified withholding grounds), combined with a generalised duty of secrecy. While there are exemptions to that duty, and advice on similar clauses suggest they may allow release under the OIA, that's by no means certain. Ombudsman's caselaw around such clauses suggests that the generalised duty of secrecy combined with s18(c)(i) OIA means that information subject to such a duty is not in fact "available to the public", and release is not "provided for", let alone required, by law. So the effect of such clauses is to expand secrecy, making public information secret.

Why do such clauses exist? They do not protect any public interest in protecting information which should properly be withheld from disclosure — the Official Information Act already does that! Instead, they exist because the public service does not trust itself, or each other. Advice on the similar provisions in the New Zealand Infrastructure Commission/Te Waihanga Act 2019 made clear that the primary concern driving such clauses was loss of trust from originating agencies if requested information was "mishandled" by being released to the public. Agencies such as SSC were concerned that there could be a loss of "business confidence" if private sector information was released (not an issue with the Mental Health and Wellbeing Commission Bill), and a loss of "public confidence" if "sensitive information" was released against the wishes of the originating agency. Except that where the OIA is concerned, originating agencies are consulted as a matter of course, and release is weighed against the statutory withholding grounds in the Act. So what such clauses actually express is that, from the top down, public sector agencies do not trust one another to either consult each other, or do their jobs properly.

The public's right to access public information should not be undermined because of such institutional dysfunction.