Thursday, June 25, 2020

More progress on secrecy

Last year, I highlighted a secrecy problem with the government's Infrastructure Funding and Financing Bill. The Bill would establish a new class of public entity, "special purpose vehicles", to hide debt from local government balance sheets fund infrastructure such as roads and sewers in "high-growth" councils. The SPVs would collect and spend public money and enjoy statutory powers, but as originally envisioned, would not have been subject to the Official Information Act or LGOIMA. Not due to any real analysis, but because the Department of Internal Affairs had never really thought about it.

Yesterday the Transport and Infrastructure Committee reported back on the bill, and in response to submissions, have decided to make it subject to the Ombudsmen Act (and therefore the OIA):

We believe it is important for levy payers to have transparency about an SPV’s use ofstatutory levy powers. As SPVs would be performing public functions and spending public money, we believe there should be a high level of scrutiny over their operations. We note that the Chief Ombudsman has also expressed his belief that SPVs should be subject to the OIA and the Ombudsmen Act.

We note that other private entities are subject to the OIA to the extent they perform public functions. Scrutiny of public functions should not be avoided because those functions are performed by a private firm.

We therefore recommend inserting a provision in Schedule 2 of the bill to make SPVs subject to the Ombudsmen Act in relation to their administration of, and compliance with, the levy order and this legislation. This amendment would automatically make SPVs subject to the OIA.

So we get not just transparency, but also a right of review by the Ombudsman for unreasonable behaviour. Which could come in handy.

Meanwhile, I'm still shocked that departments aren't bothering to analyse whether new agencies should be subject to the OIA regime. The Law Commission told us the criteria for inclusion back in their 2012 review. Departments should be more than capable of applying these guidelines, rather than leaving it to random members of the public to do so.