Monday, June 21, 2021

Incompatible regimes

The Official Information Act is our core transparency legislation. But its only covers central government. Local authorities are covered by the parallel Local Government Official Information and Meetings Act 1987, which duplicates most of the OIA's provisions, and adds in some stuff about local authority meetings as well. Since the government has been talking about (but not doing) OIA reform, I asked the Department of Internal Affairs whether there'd been any advice on reforming LGOIMA. Their response is here (released docs are here. The short answer is "not really", but its still interesting.

First there's some advice on changes in the 2015 Statutes Amendment Bill, including a change to the Act's purpose clause from "provide for" to "increase progressively" (as used in the OIA). Interestingly, the advice claims that "increase progressively" includes and is stronger than "provide for". Which is interesting in light of the "provided for" language of some older secrecy clauses.

Second, there's the embarrassing incident of the Local Government Regulatory Systems Amendment Act 2019, which changed the defintiion of "working day" in LGOIMA to make it inconsistent with the OIA. Astonishingly, the Department did not bother to consult the Ombudsman about this, who learned of the changes after the fact and was not happy about it. You could see this as a problem with DIA - who on past evidence just don't seem to think about transparency very much at all - but its also symptomatic of a wider problem within the public service, where each agency works within its own little silo, and doesn't stop to think about whether they should be fiddling with quasi-constitutional legislation. One document on the upcoming Statutes Amendment Bill has been withheld, and I'm wondering if they're planning to fix this, or if there are other alignments they need to make.

Thirdly, as part of the above, Local Government Minister Nanaia Mahuta met with the Chief Ombudsman in July 2019 to discuss the issue. Also on her agenda was the Law Commission's 2012 recommendation to merge the OIA and LGOIMA, which Internal Affairs seemed keen to progress. While they did not provide any notes from the meeting, the cover letter for the request says "no decisions were made on these options and this work was not progressed". Which given that the Ministry of Justice had at the time just finished consulting on whether to have an OIA review and what shoudl be in it, suggests a huge missed opportunity for real reform.