Good news for transparency

Good news for transparency: former Minister Clare Curran is being forced to archive all the official information she had tried to hide in Gmail:

Former government minister Clare Curran has assured Prime Minister Jacinda Ardern she is archiving all emails she sent using her personal Gmail account.

Ms Curran resigned as a minister last week after being unable to answer questions about what official work she had carried out on her personal email.

[...]

Prime Minister Jacinda Ardern said today work-related emails on Ms Curran's G-mail account would be saved as official records and be discoverable under the Official Information Act.

Ms Curran said she was working with the prime minister's office to archive the information.

"I've given the prime minister an assurance that I'm archiving all of my Gmails, and I'm working through all of that at the moment, and they will be publicly discoverable."

Of course, this means that we're trusting Curran to decide what was held in a Ministerial rather than personal capacity, which is an obvious conflict of interest which may also deprive the government of its records. It would be far safer if it was under the supervision of the Ombudsman's office. But sadly, they have no general jurisdiction over Ministers.

Dishonest

Clare Curran quit today. But just this morning, the Prime Minister was knowingly lying to us about it on the radio:

Jacinda Ardern insisted in an interview today that she would not fire Clare Curran - but the Prime Minister had accepted the errant MP's resignation the night before.

The under-fire Curran has quit as a minister, saying the pressure on her had become "intolerable". She becomes the first casualty in the Ardern administration.

Ardern had suggested in a radio interview with Newstalk ZB's Chris Lynch - recorded at 8am this morning - that Curran's job was safe.

But it has now emerged the errant minister told Ardern last night that she would quit - and Ardern accepted her resignation.

Its a lie of omission, but it is still a lie. Past Prime Ministers have fired Ministers who have knowingly misled the public in this way. We should expect our Prime Minister to be honest with us. Sadly, this morning, she failed that test.

Good riddance

After a flailing performance in the House on Wednesday, Clare Curran avoided having to answer further parliamentary questions about her use of a private email account to evade the OIA by the simple expedient of refusing to turn up for work. And now she's done the obvious and resigned entirely.

Good riddance. Curran was a disaster as a Minister, a secretive, incompetent control freak who seemed to go out of her way to make herself look suspicious. Lying to Parliament once about a secret meeting with a potential appointee could perhaps be excused as a mistake; doing it twice makes it a clear pattern of behaviour. But I guess that's what you get from pyramid-climbing party hacks.

The bad news is that Curran's obligations under the OIA ended the moment she resigned, and all of the government emails in her private Gmail account are no longer "held" and can therefore not be requested. Which insofar as they are government information, is outrageous, a theft from the public. It exposes a hole in our transparency regime which needs to be plugged.

The Minister for Open Government, yet again

Clare Curran attended a secret meeting with Google and refused to take notes about it:

At least two Cabinet ministers attended a dinner at an exclusive club hosted by Google's top lawyer under secretive "Chatham House" rules, but made no notes of what was discussed.

National open government spokesman Nick Smith blasted their attendance, accusing Labour of hypocrisy.

Google's chief counsel, Kent Walker, hosted the dinner at the capital's swanky Wellington Club for invited guests who included Justice Minister Andrew Little, Open Government Minister Clare Curran and top public servants and lawyers.

[...]

Walker's visit came at a time when the world's fifth largest company faces the possibility of additional regulation in the areas of tax, privacy and competition policy.

Little said in a letter sent in response to an Official Information Act request that he didn't generate any notes or memos from the event. A spokeswoman for Curran said she hadn't either.

In which case, they should have generated them in response to the request. The Ministers attended in an official capacity, so any information that resulted is official information. And that includes information in Ministers' heads. Their failure or refusal to take notes does not protect them from requests, only from poorly-worded ones (though arguably, that would violate the duty of assistance). As for the "Chatham House rule", the government can not contract out of the OIA. It may be able to withhold information provided to them under such an express obligation of confidence, if the interest in receiving such information in future is not outweighed by the public interest. But they cannot withhold information they provided to others simply by declaring it "confidential". The problem is that refusal to record gives deniability, so even if Smith successfully appeals this atrocity to the Ombudsman, Curran will be able to smile and say she remembers nothing - while providing Google with whatever secret backhanders it wants.

And that's why refusal to keep records is bad: because it enables the government to lie to us, and it enables them to behave corruptly. Ministers who deliberately do so (and Curran is a serial offender) need to be held to account.

The Minister for Open Government strikes again!

How committed to transparency is Clare Curran, our "Minister for Open Government"? The Public Media Advisory Group, which she appointed under her other hat as Broadcasting Minister, decided that it would not keep minutes of its meetings after hearing that it would be subject to the OIA:

A Ministerial Advisory group met once, noted its meeting minutes were subject to the Official Information Act (OIA), then stopped taking minutes in further meetings.

Broadcasting, Communications and Digital Media Minister Clare Curran set up the Ministerial Advisory Group in February to investigate establishing a Public Media Funding Commission.

Documents released to Opposition MP Melissa Lee under the OIA show the group decided to "not keep minutes for its further meetings" after meeting for the first time on 27 February.

The minutes for that February meeting show early on in the meeting, "The MAG (Ministerial Advisory Group) noted it is subject to the Official Information Act."

After that meeting, there are no more minutes recorded.

MAG members also signed a "confidentiality deed", presumably in an attempt to contract themselves out of the OIA.

Of course, this is illegal. The MAG is a public agency, and as such is required to create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice. Failing to do this is a crime, though the penalty is a paltry $5,000 fine. But is also tremendously stupid, in that if the meeting doesn't keep minutes, it won't know what it has done in the past. Finally, its legally ineffective: the OIA applies to information, not just documents. If the information exists only in people's heads, then they are required to write it down for requesters. As for what to do about it, the answer is simple: the law should be enforced, and the group should be sacked and prosecuted for violating it. It is not acceptable for a government agency to deliberately refuse to create records in an effort to thwart the OIA regime, and they need to be held to account.

Not acceptable

Democracy in New Zealand is predicated on the fundamental rule that the executive and its agencies are accountable to Parliament, and through them to the people of New Zealand. We expect public servants and heads of public agencies to cooperate fully with Parliamentary oversight and investigations, and not attempt to mislead them or refuse to provide evidence. But that's exactly what RNZ Chair Richard Griffin is doing over his communications with his Minister Clare Curran:

RNZ chairman Richard Griffin says he has no intention of handing over a voice message left on his mobile phone by Broadcasting Minister Clare Curran.

"No, I have no intention of handing it over, so I'm in breach of the select committee directive," he told the Herald.

He declined to comment further, saying a letter outlining the reasons why had been sent to the Economic Development, Science and Innovation Select Committee.

This simply is not acceptable. The information the committee has requested is official information, received and held in Griffin's official capacity as RNZ chair. By refusing to provide it, he is effectively saying that he does not work for Parliament, or the people of New Zealand. And if that's his attitude, then terminating his employment and getting his successor to provide the records seems appropriate.

(Meanwhile the voicemail has been the subject of numerous OIA requests as well, and there seems no real reason to refuse them. Its an official document sent and received in an official capacity in which there is no privacy interest. But given Griffin's attitude here, it is likely that he will try and unlawfully refuse them. All this will do is delay release until the Ombudsman has ordered it).

A coverup unravels

Back in February, Broadcasting Minister Clare Curran embarrassed herself in Question Time trying to pretend that she hadn't been trying to hide a meeting with RNZ's head of news, Carol Hirschfeld. First, the meeting never happened. Then it was "informal". RNZ executives obediently trotted out the same line in front of a select committee, saying that the two had just bumped into one another at a cafe and had a few words over breakfast - entirely natural, nothing suspicious. But it turns out that that was a lie, and it has now cost Hirschfeld her job:

Radio NZ senior manager Carol Hirschfeld has resigned over a meeting she had with broadcasting minister Clare Curran.

Hirschfeld met with Curran on December 5 last year. The meeting was pre-arranged, and was in Curran's ministerial diary.

However, RNZ chief executive Paul Thompson said Hirschfeld had repeatedly assured him the meeting was coincidental, and that she and Curran had talked after bumping into each other in a Wellington cafe.

On Sunday, Hirschfeld told Thompson the meeting had in fact been pre-arranged.

On Tuesday, Thompson said he had accepted Hirschfeld's resignation, effective immediately.

Which is fair enough - causing your bosses to mislead Parliament is definitely a firing offence. But pretty obviously, Hirschfeld isn't the only one who should be losing her job over this. From the start, we've had nothing but lies from Curran. Under Helen Clark, deliberately misleading the public was a sacking offence. Will Jacinda Ardern hold her Ministers to the same standard?

Less than open

Remember the Minister for Open Government? Last year she was publicly shamed in the House over her apparent refusal of a fairly standard OIA request (a refusal which it turns out was directed by a Senior Ministerial Advisor in the PM's office). But eventually she started releasing the basic lists of briefings people had been asking for, so I took the opportunity to request her Open Government Partnership briefings to see what she's been doing. The short version:

• SSC is currently planning the engagement process around the 2018-20 OGP National Action Plan. There's an acknowledgement that they need to spend more time on it to better engage with the public, which is good.
  
• Curran took a paper to Cabinet about proactive release of government information. Unfortunately, all the details are secret.
  
• SSC has been thinking about a new "strategic approach" to Open Government. All the details of that are secret too.
  
• Curran was invited to attend the OGP Asia Pacific Leaders Forum 2017 in December. But as there's no mention of it either in her official press releases or Twitter feed, it appears she blew it off and dumped the job on the local NZ ambassador instead.
  

Of course, that's just November. But if she's been doing more open government work since, she's kept it... secret. Which isn't exactly what I'd expect from a Minister of Open Government.

How bad OIA decisions are made

Last year, Open Government Minister Clare Curran was publicily shamed in the House over her apparent refusal of an OIA request. The Opposition had requested a list of all reports, briefings, memos or aides memoire received since she was sworn in as a Minister. Most of us would regard that as pretty clear. Instead, as part of the government's "fuck you" to opposition questions, she tried to pretend that the requester did not specify the information it was seeking with "due particularity" and effectively refused it. I was curious about how such a blatantly unlawful decision was made, so I used the OIA to request all correspondence about the original request.

Curran's response can be viewed on DocumentCloud here. While most details - including some apparent discussion - have been redacted for privacy (fine for names of junior staff; not fine for what they are saying unless its irrelevant to the topic), it is clear how this decision was made: because the Prime Minister's office told her to refuse the request.

The smoking gun is here. A Senior Ministerial Advisor in the Prime Minister's office emailed to say that similar requests had been received by all Ministers and to advise that they should be asked to refine their request. Curran's office obeyed. That same Senior Ministerial Adviser in the PM's office subsequently emailed to pass on the clarification that had been received, pretended that it also did not meet the "due particularity" test, and recommended that the request be refused. The good news is that this advice was not accepted: Curran instructed her staff to continue the request, and the requester received a proper response in late December.

Interference by Ministerial Advisers in the OIA process was one of the issues raised in Beverley Wakem's OIA review, though largely in the context of agency decisions. Here, we have a Ministerial Adviser interfering in the OIA decisions of other Ministers, and giving advice that seems blatantly unlawful. And that's simply not acceptable. The good news is that Ministerial Advisers are now subject to the SSC's Standards of Integrity and Conduct, which include a requirement to act "lawfully and ethically". This adviser hasn't. Their identity can easily be determined from the information in the OIA response. The question is, will SSC actually do anything about it, or is their Code just a joke?

The Minister for Open Government again

How bad is Labour's Minister of "Open Government"? This bad:

Brett Hudson: Does she stand by her 29 November refusal to answer an Official Information Act (OIA) request made on 20 November, which sought a list of all reports, briefings, memos, or aide-mémoire that she had received since being sworn in as Associate Minister of State Services, on the basis that the request did not meet the requirement to be "specified with due particularity" as per section 12(2) of the Official Information Act?

Hon CHRIS HIPKINS: Yes.

Ignore that its Hipkins answering on her behalf, and focus on that OIA request. It specifies the information it is seeking and the timeframe it is being sought over. It is immediately clear to any reader what information is being sought. To refuse it as lacking "due particularity" is utterly baseless and unlawful, and I expect the Ombudsman will tell her that in due course. That would be bad from any government Minister, but Curran is the Minister of Open Government. And it is clear from her reported response to this request that "open government" is not something she believes in or practices. Instead, she is undermining it in her own office, right from day one.

Seeing this, and her previous behaviour, I have no confidence in this Minister to actually open up government or produce anything useful in her portfolio. And if this is how their Minister is goign to act, the government might as well remove the portfolio entirely, because its clearly a complete waste of our time.

The Minister for Open Government

When Labour appointed Clare Curran as Associate Minister of State Services (Open Government), I was hopeful. Having someone with Ministerial responsibility for open government and transparency might see some progress in those areas. Then Labour started acting worse than National over transparency, trying to pretend that official information isn't and playing the bullshit game over requests for basic information. Naturally, I was curious as to whether the Minister for Open Government would set an appropriate standard, or follow her party like a hack. We found out the answer to that question in Question Time today, and it was not good:

Brett Hudson: How, as the Minister responsible for open government, can she, in all good conscience, address a written question from a member about events in respect of a single day by saying that providing an answer "would take substantial research and collation, which I do not think is in the public interest"?

Hon CLARE CURRAN: I will defend the right of the Opposition to ask written questions, but the Opposition is abusing that right. I happen to agree with Ben Thomas, the former National press secretary, who called it "6000 stupid questions: National's [denial-of-service] attack on the Government".

Just to be clear, this is a specific request for basic information, sent in response to a prior refusal for such information which requested greater specificity. And Clare Curran, the Minister for Open Government, just can't be arsed. I guess you can give the hack a fancy job title, but at the end of the day, she'll always be a hack.

Needless to say, this is not a good way for the government to start, and it suggests that all Curran's fine words about increasing transparency and improving OIA practice are just spin and bullshit. If we want change in this area, we're not getting it from her.

Open Government: The Minister isn't interested II

So far, New Zealand's participation in the Open Government Partnership has been defined by ministerial disinterest and SSC incompetence. Two weeks ago, the Opposition finally started paying attention to this, with Labour MP Clare Curran asking a series of parliamentary questions inquiring about the upcoming action plan process. The answers to the first batch of these came back over the weekend, and they don't paint a very pretty picture.

Firstly, the biggie: what concrete changes have occurred as a result of joining the OGP? According to State Services Minister Paula Bennett, the answer is that now we have an action plan. And that's it. No mention of whether the actions in that plan have led to any actual change in the way we do government ("no", according to the OGP's Independent Reporting Mechanism), which you'd think is the point. Apparently the Minister thinks that the purpose of the OGP is to generate plans rather than change.

Secondly, what lessons have been learned from the government's miserable failure on its first action plan? Officials are (still) considering it. Which given that one of the key identified failings was consultation an co-creation, and we have only 79 days to go until the next action plan has to be presented to the OGP, is leaving it pretty fucking late.

Thirdly, what action has she taken to fix those problems? None. The Minister is asleep at the wheel, and the result is going to be a further erosion of New Zealand's international reputation.

Finally, what advice has the Minister received on the consultation process for the next action plan? None - but she expects to receive some in future. Again, 79 days to go - its a bit fucking late now. And there's an obvious question of why she wasn't being advised about it back in October, in time to get a proper consultation process in place. Did she not ask, or did SSC not tell?

All of which seems to support my initial conclusion: the Minister isn't interested in the OGP, and SSC isn't interested in keeping her in the loop or asking her if she wants to do anything differently. And insofar as she hasn't been asked, then it is senior public servants in SSC who are to blame for the unambitious targets and appalling approach to "consultation" that they are inflicting upon us.

Open Government: Finally, some attention

One of the reasons the State Services Commission's management of New Zealand's participation in the Open Government partnership has been such a miserable failure has been the lack of political attention paid to it. The Minister doesn't care, and as the Opposition doesn't care either, she has no incentive to. But that might be about to change. Last week, Labour Open Government Spokesperson Clare Curran lodged a series of parliamentary questions inquiring about the OGP, including these ones:

• What lessons have been learnt from the first interim report and independent review mechanism, if any, and how will these lessons to inform the 2016-18 Open Government Partnership Action Plan?
  
• What action has the minister taken, if any, to address issues raised in the New Zealand interim self-assessment OGP report and independent review mechanism report to ensure that the 2014-16 action plan implementation improves?
  
• What instructions has the Minister given, if any, to ensure that the 2016-18 Open Government Partnership Action Plan does not reproduce the identified lack of civil society consultation noted by both the January 2016 self-assessment report and the independent review mechanism report?
  

The best way to get a Minister paying attention to something is for the opposition or journalists to start asking about it. Unfortunately, its rather too late for this action plan - its three months until the deadline, so even with the best will in the world, there is simply not enough time to properly co-create an action plan with civil society, let alone get it improved by Cabinet; in order for that to happen, SSC would have had to start six months ago. So, instead, we're going to get the usual bullshit of a two week "consultation period" on decisions which have already been made, for unambitious "commitments" which are really just rebranding existing programmes. But maybe this time the Minister will actually get angry about it and force change for the future.

A welcome apology

The other day, Labour's Clare Curran stuck her foot in her mouth, complaining about "white anting" by the Greens. It was an unpleasant sight, which drew criticism from across the left, both for the ugly sense of entitlement it displayed, and because it did damage to her party that it could really have done without.

To her credit, Curran has now apologised:

Another is that it’s important to acknowledge mistakes. I made one this week. For that I apologise. It was never my intention to argue entitlement to a share of the votes.

I have to earn votes. Whether it be personally or for the Party. And I’ll be judged, along with everyone else standing on November 26.

This is good to see. Its phenomenally easy to make a dick of yourself on the internet. Its harder to admit that you've done so. Especially when you're a politician, and the media sees such admissions as a weakness rather than a strength. But I'd rather have politicians who admit when they've screwed up, rather than ones who arrogantly insist they are infallible.