Tuesday, May 14, 2024

Some "scrutiny"!

Back in February I blogged about another secret OIA "consultation" by the Ministry of Justice. This one was on Aotearoa's commitment in its Open Government Partnership Action Plan to "strengthen scrutiny of Official Information Act exemption clauses in legislation" (AKA secrecy clauses). Their consultation paper on the issue focused on strengthening "scrutiny mechanisms" - essentially interdepartmental consultation - without saying what these clauses would be scrutinised against or the circumstances in which they might or might not be justified.

Which invites the question: how well is such scrutiny working at the moment? The Ministry of Justice is responsible for the OIA, so in theory other agencies should be consulting them before messing with it. And if they were a good guardian, they'd couple this with active monitoring of upcoming legislation (a lot of which will cross their desk anyway) to spot cases where this hasn't been noticed. So, I did some poking with the OIA, sending them a list of 37 recent bills which contained secrecy clauses, and asking for their consultation advice on them. That was obviously a lot of work, and the Ministry didn't want to do it. But their background research for their OGP consultation had included a study of eleven bills, and they agreed to release the consultation advice they had produced on those (as well as six more bills later).

And here's the advice. Of the eleven bills in their study with identified secrecy clauses, the Ministry of Justice had been consulted on just two of them. I should note that one of the bills was "owned" by the Ministry of Justice, so shouldn't be included in the total. Which makes it two out of ten - a nice, round 20%. Some "scrutiny"! And we wonder why the government keeps passing these things? Partly, because the agency responsible for the law doesn't even know it is happening.

As for their plans to improve scrutiny, the New Zealand Council for Civil Liberties did a recent request on that using FYI. Digging through the documents, a bunch of the agencies Justice wants to be a check against secrecy clauses - the Parliamentary Counsel's Office, DPMC, the Office of the Clerk - are saying "nope, not our problem". Which means their "improved" scrutiny is going to end up looking a lot like the current "scrutiny", only maybe with a little note on a webpage somewhere. Meanwhile, the question again of what can justify departing from our constitutional principle of transparency goes unanswered, and the Ministry redacts any suggestion that these clauses might not be justified. Whether that is an appropriate outcome for an OGP commitment is left as an exercise for the reader.