Tuesday, June 18, 2024

Some "scrutiny" II

Last month I blogged about the Ministry of Justice's Open Government Partnership commitment to strengthen scrutiny of Official Information Act exemption clauses in legislation", and how their existing efforts did not give much reason for confidence. As part of that, I mentioned that I had asked the Ministry for its "scrutiny" of a bunch of recent bills containing secrecy clauses. They didn't want to do the work, but they agreed to look at what they'd said about six bills. They gave me the information (such as it was) today, and it turns out that they had not been consulted on any of them. Worse, they only recognised interactions with the OIA in three of the six bills, and in those three, they missed the actual issues (the annotations on the reply show exactly what they missed).

From this, I think its clear that the Ministry of Justice wouldn't recognise a secrecy clause if it bit them in a very uncomfortable place. And as they're the agency responsible both for the OIA, and for scrutinising legislation to ensure that secrecy clauses are justified, that seems to be a problem. (Its also clear that other agencies don't recognise them either, and so fail to consult. But the primary responsibility here is on Justice, which should both be educating them, and proactively hunting such clauses).

There's another problem as well: in their response the Ministry said

We note that the Ministry would not likely have been consulted on an OIA exemption provision in a bill if such a provision was already present in the principal Act.
The problem here is that many of these "exemption provisions" - MoJ's toned-down way of referring to secrecy clauses - are old, possibly even ancient or archaic. Meanwhile, both the law and our attitudes to transparency have shifted. There's the OIA itself, of course, but also the Bill of Rights Act, section 14 of which protects the "freedom to seek, receive, and impart information and opinions of any kind in any form" [emphasis added] - language which is recognised internationally as covering freedom of information laws. Plus there's been 30 years of progressive transparency since then, with more and more information routinely released, and assessments of the harm from release of certain types of information - particularly commercial information - changing with experience.

The upshot from this is that simply because an existing law requires secrecy does not make it OK. And if that law is being re-enacted, that is a perfect time to re-examine that secrecy clause from first principles to see if it can still be "demonstrably justified in a free and democratic society". Unfortunately, no-one is doing this, and in its consultation paper, Ministry of Justice made it clear they were opposed to such work. And so secrecy persists by inertia, and expands by ignorance and over-deference, and our right to transparency is eroded.