Thursday, March 18, 2021

The Ministry of Justice advice on an OIA review

On Tuesday we learned that the planned review of the OIA had been delayed because the Ministry of Justice was too busy with other things. Exactly what those other things were was of course secret, but it made it clear that increased transparency simply wasn't part of the government's agenda. The core documents on this have been posted by Andrew Ecclestone, and I've spent some time reviewing them. The core one is a briefing from the Ministry of Justice entitled Official Information Act 1982 - report back on targeted engagement and next steps, in which the Ministry summarizes the public submissions and agrees that a review is necessary. The highlights:

  • the Ministry downplays the problems with the Act as a problem of perception, not necessarily of reality. Which is not a good place to start from.
  • The list of issues suggested for review includes several core problems, including enforcement, scope, oversight, and proactive release. But it also includes one area which seems explicitly aimed at reducing transparency: withholding grounds, where the focus seems to be on "increas[ing] certainty" around the "free and frank advice" clause. The Secretary of Justice's published views make it clear that he thinks there should be more secrecy in this area, and the mention of addressing the issue through improved proactive disclosure suggests the plan is to keep pre-decision advice secret, and only let us know about things once decisions have already been made and it is a fait accompli. Stopping the cries of dirty peasants from bothering the professionals in the ivory halls of government probably sounds great to some of those professionals, but a key purpose of the OIA is to enable greater public participation "in the making and administration of laws and policies". Locking us out of the process by keeping everything secret until it is already decided runs directly counter to that purpose.
  • There's also a push to make it easier to declare requests "vexatious". You have only to read the submission summary (or the submissions themselves) to see that some public servants seem to regard any question (or at least, any awkward or troublesome or time-consuming question) as "vexatious", and that is precisely why the bar has been set so high. It should not be lowered. Answering awkward questions from awkward people is part of the job, get over it.
  • The Ministry assumes throughout all this that it is the appropriate body to conduct a review. I don't think that's true. As an agency, they're stunningly uninterested in the OIA. Just look at their website: huge pages on constitutional law and human rights, nothing on OIA policy. The extent of their "interest" seems to be maintaining the Directory of Official Information and the charging guidelines. They don't even bother getting consulted on secrecy clauses in legislation, which you'd expect an agency active in this area to do. Plus of course there's the Kibblewhite factor: an agency led by a chief executive who publicly advocates for greater secrecy is hardly going to be trusted by requesters to rewrite the Act.
On the final point, it is perhaps fortunate that the Ministry of Justice is now "too busy" to do this work. But that provides a perfect excuse to take the job off them and give it to someone else - ideally, an independent, neutral body untainted by the interests of the public service.

Finally, the government's decision to have a review on whether to have a review, then ignore the result and not have a review when it is overwhelmingly supported by submitters seems to violate the commitment in our OGP National Action Plan. Yes, strictly speaking all they committed to was to "test the merits" of a review (which they have done), and to "provide and publish advice to Government" (which they've done half of). But the natural implication is that if the merits supported it, they would proceed to the next step, and to fail to do so smacks of bad faith. It certainly doesn't inspire confidence in the other OGP commitments, or in the process they are asking people to participate in.