Thursday, July 28, 2022

Is the tide turning on secrecy clauses?

Over the last couple of years there has been a disturbing trend of new legislation containing secrecy clauses, which effectively make it illegal for affected government bodies to disclose information under the Official Information Act. Some of these are re-enacting old legislation from the pre- or early-OIA era (in which case they should be re-examined from the ground up to see if there is still a justification strong enough to support violating the BORA). Some are naked secrecy grabs to make agencies less accountable. Some seem driven by an oversensitivity to concerns about confidentiality from business (an interest which is already well-protected by the OIA). And some are ostensibly about allowing agencies to publish and disclose information, while in fact having the opposite effect. The good news is that there's been some movement on the latter. In addition to select committees amending those clauses to respect the OIA, newer-legislation is now also doing this explicitly from the beginning. For example, the new Accessibility for New Zealanders Bill forbids the newly-established Accessibility Committee from publishing information it requests from other government agencies, unless (among other reasons) "the publication or disclosure is made under the Official Information Act 1982 or is otherwise required by law".

Its a good change to see, and hopefully it will continue. At the same time, it makes the secrecy clauses which have slipped through unamended - like this one or this one - all the more glaring. They need to be removed. In 1987 the government reviewed all extant secrecy clauses, and repealed those which could not then be justified. 35 years later, we clearly need to do it again.