Thursday, March 30, 2023

This cover-up needs to be a crime

On Tuesday night, former Forestry Minister Stuart Nash was sacked for corruption, after the Prime Minister discovered he had disclosed confidential cabinet discussions to his donors. Its since emerged that Jacinda Ardern's office knew of this disclosure, but didn't act on the obvious breach of the Cabinet manual, and didn't tell her about it - which smacks of a coverup. And now Newsroom has weighed in, suggesting that Nash deliberately and knowingly violated the OIA:

On June 8, 2021, Newsroom made a request to Nash’s office under the Official Information Act for “All written correspondence and details of the nature and substance of any other communication since the start of 2020” between Nash and 19 of his political donors. Included on the list of donors was Troy Bowker. Given that the June 2020 email to Bowker concerned discussions Nash was having in his capacity as a minister, it appears that the June 2020 email fell within the scope of Newsroom’s request.

In August 2021, however, Nash’s office responded, “I hold nothing that is within the scope of your request as the Act relates only to information provided to me as minister. I must therefore refuse your request under section 18(e) of the Official Information Act as the information does not exist or cannot be found.”

I have two comments here. The first is that there seems to be no reason whatsoever for this request to have been escalated to the Prime Minister's office, and it seems to be another example of Labour's informational control-freakery. The fact that it was the PM's staff who ruled the email "out of scope" because it wasn’t "received in his capacity as a minister" also echoes Gaurav Sharma's claims about the PM's office instructing MPs about how to hide information from the OIA by claiming it was received in a party capacity. (In this case its strictly false, because information from Cabinet discussions can only be held in a Ministerial capacity; the PM's staff's willingness to overlook this calls every OIA judgement they have ever made into question, and suggests they are systematically illegally withholding information on political grounds. Unfortunately, the Ombudsman can't do anything about it, because OIA investigations can only be in relation to a specific request, while Ministers have ensured that the Ombudsmen's Act, which allows own-motion inquiries into OIA practices, doesn't apply to them. Convenient, isn't it?)

My second comment is that this is a perfect example of why the OIA needs criminal penalties for deliberate violations. Canada does this, with the Access to Information Act having a penalty of two years imprisonment for those who, with intent to frustrate a request, conceal, falsify or destroy records. We should do the same, to deter such behaviour and enable public servants to stand up to illegal demands from their political masters. But as with the Ombudsmen's Act, the problem is getting Ministers to apply the law to themselves...

Either way, its clear that the announced review into what else Nash might have corruptly disclosed isn't enough; we also need a full investigation into Labour's handling of OIA requests. And if this government won't do it, I'd hope the next one will.