Wednesday, June 17, 2020

Some progress on secrecy clauses

Over the past year I've noticed a rise in the number of secrecy clauses in legislation: specific clauses requiring that certain information be kept confidential, effectively forbidding its release under the OIA. The most shocking bit is that these are usually applied to information collected from other government agencies, and driven by public sector dysfunction and internal distrust, but a desire to protect "commercially sensitive" information (which is already protected by the OIA) is also a driver. I've investigated these clauses usig the OIA, and submitted on a few bills to argue against them. And in some cases, the message seems to be getting through.

The first case is the Mental Health and Wellbeing Commission Bill, which is currently waiting for its third reading. As drafted, this had a secrecy clause with the usual ambigious "required by law" language. Past Ombudsman's rulings have suggested that this might not be enough to allow disclosure, as the generalised duty of confidentiality would prevail. The good news is that the Ministry of Health didn't intend the section to override the OIA, and the Ombudsman suggested phrasing which explicitly recognises the right of access under the OIA (so, its basicly a "don't randomly share this stuff" clause). Hopefully this will become the standard in future.

The second is the new Forests (Regulation of Log Traders and Forestry Advisers) Amendment Bill, which is currently waiting for its second reading. In this case, the new Forestry Authority would have statutory information-gathering powers, which led to concerns from some submitters about commercially sensitive information. But rather than impose a secrecy clause, the committee instead included a clause saying the OIA applied as usual:

See section 9 of the Official Information Act 1982 for reasons for the Forestry Authority to withhold any official information it holds (including where making the information available would disclose a trade secret or be likely unreasonably to prejudice a person’s commercial position).

Looking at the summary of submissions, the driver here was MPI recognising that commercially sensitive information is already protected by the OIA. Unfortunately, other agencies seem to lack this basic understanding of the law. But when they suggest a traditional secrecy clause in future, we will now have a good example to point to.