Wednesday, June 09, 2021

A mini-Official Secrets Act for the Reserve Bank

The Finance and Expenditure Committee has reported back on the Reserve Bank of New Zealand Bill. Part of the bill is a new confidentiality clause, restricting publication or disclosure of information obtained using the bank's information-gathering powers. The first-reading version was actually good, with explicit recognition of the OIA. So naturally, the Labour-dominated committee reversed that, to specifically limit the application of the OIA:

The Bank may make information or data to which this section applies available under the Official Information Act 1982 only if 1 or more grounds under subsection (2) apply.
The scary thing is that this is actually an improvement on the current law, which excludes the OIA entirely.

How did this happen? The committee is "concerned that confidential information could be released under [the OIA]". But delving into the advice, it appears that the Reserve Bank in their initial briefing (p 21) thought the initial clause thought that it already did, saying "The confidentiality provision has the effect of limiting the availability of information under the OIA" (despite the clause saying the opposite). But their later departmental report recommends a "clarification" as:

The policy intent behind this provision is that information would only be available under the Official Information Act 1982 (OIA) if it could otherwise be released under this confidentiality provision. This ensures that information that is compulsorily acquired from financial institutions is appropriately protected. The provisions in the Bill are based on section 135 of the Insurance (Prudential Supervision) Act 2010, which had the same policy intent. Engagement with the Office of the Ombudsman suggests that amendments to this drafting would be desirable to more clearly give effect to this policy intent.
Both the bank and the committee believe that ousting the OIA is necessary to protect this information. But why does it need to be protected? The initial briefing says the RBNZ asks banks about their credit card rates or the amount they have loaned out to do things like help set monetary policy. Obviously, there are interests around bank regulation, commercial prejudice, confidentiality, and potential economic damage if this information is released. But the OIA already has provisions protecting those interests, in sections 6(e), 9(2)(b), 9(2)(ba), and 9(2)(d). The problem here is that neither the RBNZ or the government (or apparently the Ombudsman) trust the OIA to do its job. So instead, they want to give the bank its own mini-Official Secrets Act instead.

This control-freakery is unnecessary and undemocratic. But isn't it so very, very Labour?