Tuesday, May 09, 2023

The "most open and transparent government ever" again

One of the good transparency moves over the last decade has been an increasing shift to the government releasing information proactively. We now assume as a matter of course that the cabinet papers and briefings underlying every significant government decision will end up on an agency website somewhere. These documents usually contain redactions, and usually refer to a justification under the OIA for doing so, but they're available, without anyone having to request them, and that's good.

But this isn't just driven by a desire for transparency: proactive releases aren't actually covered by the OIA, so those redactions don't actually have to be lawful under the Act. And this is used by the government to keep information secret and gain tighter message control. Newsroom's Marc Daalder has a perfect example today of a Minister caught in the act of censoring government information to keep it out of the public eye:

Climate Change Minister James Shaw redacted parts of a Cabinet paper he released last year, even after officials advised him not to.

The paper predominately dealt with a decision on price controls in the Emissions Trading Scheme (ETS), which Shaw announced at the same time he released the document. But it also contained reference to an upcoming review of the ETS which Cabinet had yet to make final decisions on.

According to a separate briefing released to Newsroom under the Official Information Act (OIA), officials from the Ministry for the Environment told Shaw there were no valid grounds under the OIA to redact the reference to the ETS review. Releasing the paper would therefore effectively announce the review. Alternatively, they advised, Shaw could choose not to release the paper.

Instead, Shaw went a third way - releasing the Cabinet paper but redacting the mentions of the ETS review against official advice.

If the paper had been requested under the OIA, Shaw would not have been able to hide this information, and his decision to do so would have been reviewable by the Ombudsman. But because he proactively released it, he could do what he liked, and hide whatever he wanted to keep the public in the dark.

This is bad, but the real problem is that the fact that a document "will soon" be proactively released is a reason to refuse a request for it. But then, that eventual proactive release can contain redactions which are not lawful under the OIA. Shaw has been particularly assiduous about refusing things on this basis, but what we've seen here is that we can have no faith that his eventual redactions will be lawful. And he's not the only one - a recent case note from the Ombudsman found the Minister of Health was also playing this game, and as a result the Ombudsman will be taking a closer look at s18(d) refusals generally. Because you can see how this undermines trust in the entire OIA system.

As for how to fix it, the short-term solution is to request unredacted copies of every proactive release. I've found it useful when doing this to ask that the request be handled urgently, to note explicitly that saying that they stand by their redactions should not take more than a few days, and to explicitly threaten an "undue delay" complaint if they piss around (setting a clear path-of-least-work incentive for lawful behaviour). Alternatively, Daalder has shown that requesting the briefings on specific proactive releases can be fruitful and informative.

The long-term solutions are twofold: the OIA needs a formal framework for proactive release (the UK FOIA's model of publication schemes seems to be a good one to steal), and proactive release needs to be reviewable by the Ombudsman. This needs to include not just redactions, but also non-compliance with a publication scheme - failing to release something on time as expected. This solution would take years to put in place, but in the meantime it seems easy enough to add reviewing redactions in proactive releases to the grounds of complaint to the Ombudsman, to ensure they are lawful. The Ombudsman's jurisdiction already needs to be significantly fixed to plug a number of holes, so that could be done at the same time. The problem of course is that pro-secrecy Ministers have no incentive to do any of this.