Wednesday, February 24, 2021

One way of fixing the OIA

I've just lodged my fourth complaint to the Ombudsman for deemed refusal of an OIA request by police this year. That brings their total to four for four - every request I have sent them has not been answered within the legal timeframe, even when they extend it to give themselves more time (when they do respond, these complaints usually expand to challenge their grounds for refusal as well). And this is not an unusual experience with this agency (you can also look at FYI to see the litany of delay there).

The Police are the worst of the worst, but there's a general problem with lateness in OIA requests, and a lack of incentive to obey timelines. So how can we fix this? One suggestion is to follow Mexico's example. Article 53 of its Federal Transparency Aand Access To Public Government Information Law provides that:

Lack of response to a request for access within the time limit indicated in Article 44 will be understood as an acceptance of the request, and the agency or entity is still required to provide access to the information within a time period no greater than ten working days, covering all costs generated by the reproduction of the responsive material, except when the Institute determines that the documents in question are classified or confidential.
Or, to put it another way, if they're late, they can't refuse, except on certain highly restricted grounds.

This seems entirely consistent with the OIA's purposes and the principle of availability, that information shall be made available unless there is good reason for withholding it. After all, if you can't find good reason to withhold within the statutory time limit, then it clearly doesn't exist and the information should be released. It would provide a strong incentive for timely decision-making, or for extending complicated requests. As for the danger of incentivising quick refusals, this would simply mean that complaints over lateness would be replaced with substantive ones (and insofar as rushed decisions tend to be bad ones, see them quickly overturned).

Unfortunately, with the government pushing back its OIA review, it doesn't seem like we'll get a chance to push for such a reform any time soon. Unless some MP wishes to put it in a member's bill...?