Thursday, March 04, 2021

Labour's organic secrecy

Over the past few years there's been a growing trend for bespoke secrecy clauses in legislation, excluding specific types of information (or even whole agencies) from the coverage of the Official Information Act. These pop up in all sorts of unusual places, sometimes when introduced, sometimes put there by select committees. The latest one was inserted by the Primary Production Committee into the new Organic Products Bill, and requires that:

Information collected from or provided by an operator or a recognised entity for the purposes of this Act must not be used for other purposes by the relevant Ministry or other department as defined in section 5 of the Public Service Act 2020—
(a) without the express permission of the operator or recognised entity; or
(b) unless expressly authorised by this Act.
According to the select committee report, this is because "The bill as introduced does not explicitly regulate the use of personal information provided by people seeking organic approval or recognition." Well, no, because that's already regulated by the Privacy Act. But even more stupidly, the bill requires MPI to publish the personal information the committee supposedly wants to protect in a public register, and make it available on the internet. So what's the point of this clause again?

As for where this came from, there's no mention of privacy concerns or concerns around use of collected information in MPI's summary of submissions (and you'd think if a lot of submitters were expressing concern on those grounds, they'd mention it). There is however a submitter comment on s44 (the duty to keep records) that there "needs to be intellectual property rights protection if these records are requested". So basicly, business doesn't trust the government with their commercial information, and/or does not understand that it is already protected (subject to countervailing public interest) by the OIA's "commercial sensitivity" clauses.

MPI recommended no change, but the committee seems to have over-ruled them and inserted a poorly-drafted, unnecessary clause which tramples on constitutional legislation. And worst of all, because Parliament is exempt from the OIA - "privilege", doncha know? - we'll never know who was responsible or what their reasoning was. The justification for an official decision made by MPs in the course of their duty is eternally secret. And that's just not acceptable.

This needs to be fixed. I assume there'll be an SOP for this bill, and it needs to either remove this entire clause, or insert a subsection (c) saying that nothing in it limits the Official Information Act. Otherwise, we've set a precedent creating exactly the "commercial Alsatia beyond the reach of statute' the courts warned us about all those years ago.