Tuesday, August 17, 2021

Public Servants, the OIA, and independent oversight

The Spinoff this morning has a piece by an anonymous public servant on the Official Information Act. It makes the valuable point that public servants are inherently conflicted about transparency and incentivised towards secrecy simply because they want to do their jobs. The release of embarrassing material results in more work for them, or in work being binned when politicians realise it is politically unacceptable, or in shit flowing downhill from Ministers and managers outraged at the above. The result is pressure to game the system to hide embarrassing material, and repeated layers of arse-covering so those Ministers and managers get to censor information for their own political interest before it is released.

So what's their solution to this inherent conflict? In a typical bureaucratic move, its to try to make it somebody else's problem:

If we truly want to restore the promise of the OIA, and almost as importantly, the public’s trust in the OIA, we need to address this. The Ombudsman offers some oversight, by reviewing complaints, but they can’t review every decision, and nor should they have to. Instead, decisions should be made from the start by an independent body.

This is, of course, much easier said than done. It’s the agencies that hold the information being requested. The agencies also have all the knowledge about what the information means, what else is happening, and any other context that might be needed to make decisions. It’s clear that we can’t cut the agencies out altogether.

But it isn’t impossible. Our systems of justice, mediation, oversight, and other decision-making have countless examples of ways to get information from one party to make an independent decision. A new independent body could maintain relationships with the experts, and with ministers, while staying impartial, and keeping the trust of the public.

Which sounds good, until you think about it. There's an obvious impact on request timeframes. And it doesn't actually solve the problem: it doesn't make that inherent conflict go away, so the pressure to game the system themselves will be replaced by pressure to lie to and withhold information from this independent body. Meanwhile, it would require an entire parallel bureaucracy - a Ministry of Transparency? - which would face bureaucratic pressures of its own, notably the need to maintain relationships with the bodies it was "policing" (this is also a problem for the Office of the Ombudsman). And of course it would immediately be subject to budget cuts and austerity measures from Ministers who are no friends of transparency (as happened to the Office of the Ombudsman under National). So its really a non-starter as a transparency measure.

But the desire for actual independent oversight is a good one. And we already have a perfectly good body capable of doing it: the court system. Many countries - notably the US and UK - allow freedom of information decisions to be litigated in court, and we are quite unusual in not allowing it (at least not until after the Ombudsman has ruled, by which time its often pointless). And this has the advantage of producing actual binding legal precedent which public agencies are required to follow, rather than Ombudsman's "guidelines" they ignore at will. The UK's hybrid system, which directs complaints first to an Information Commissioner, and then to a specialist Information Tribunal which is subject to the full scrutiny of the court system, seems to work well, producing binding decisions at low cost to requesters. Moving to such a system would be an improvement from the current one. It wouldn't remove public servants' inherent conflict of interest. But it would mean we could police it far better than we do at present, and with real consequences.