Drawn

A ballot for three member's bills was held this morning, and the following bills were drawn:

• Local Government (Port Companies Accountability) Amendment Bill (Lemauga Lydia Sosene)
• Financial Markets (International Money Transfers) Amendment Bill (Arena Williams)
• Military Decorations and Distinctive Badges (Modernisation) Amendment Bill (Tim van de Molen)

The first would extend some (but not all) of the provisions covering council controlled organisations to port companies and their subsidiaries (which are excluded from the definition of CCO by s6(4)(c) and (ca) of the Local Government Act 2002). This would include the principal objective statement - setting up a legal clash with the principal objective clause of the Port Companies Act 1988 - and (most importantly) the LGOIMA and Ombudsmen Acts. If passed, it would be the biggest statutory expansion of transparency since the OIA was extended to cover Parliamentary Undersecretaries in 2016, but why its being done in this convoluted way rather than simply repeal the exemption isn't clear. Rachel Brooking, the original sponsor of the bill, told me there were "other consequences involving more moving parts" when she first put it in the ballot in 2021. Possibly there are worries about guarantees and lending, but it does also create direct conflicts of law, and set up problems for future (or past?) privatisations, in that all port companies would be subject to LGOIMA, regardless of whether they would be CCOs if not for the exemption. But that's what happens if you try and unravel a nearly 40 year old failed privatisation campaign, I guess.

The other bills are just basic consumer protection, and weirdo flagshagging (increasing the penalty for wearing medals you're not entitled to to $10,000, which seems wildly disproportionate - the penalty for equivalent offences under the Flags, Emblems, and Names Protection Act 1981 is $5000. But flagshaggers gonna shag flags, I guess). Given what else was in the ballot, it could have been much, much worse.

Unlawful secrecy in Rotorua II

Last year, in an effort to improve Māori representation, the Rotorua Lakes District Council attempted to advance the Rotorua District Council (Representation Arrangements) Bill. The bill was controversial, violating the Bill of Rights Act, and the mayor’s efforts to have a secret discussion about it caused one councillor to resign. I blogged about that meeting at the time, pointing out that mayor Steve Chadwick's decision to move into secret session appeared to be unlawful. And today, the Ombudsman agreed with me, finding that the decision was unreasonable and appears to have been contrary to law. Highlights:

• s7(2)(f)(i) (free and frank discussion) is not a valid reason to exclude the public from a meeting;
• the council's post-hoc justification on the basis of preventing "improper gain or... advantage" because opponents of the bill might use it to "promulgate misinformation" was not a good reason to withhold the information;
• "the real reason the Council elected to exclude the public was to avoid public scrutiny of a controversial political topic";
• councils must consider the public interest when deciding to exclude the public, including the permanent public interests in understanding how decisions are made and participating in decision-making;
• councils must follow the correct procedure when excluding the public from a meeting. The council did not do this, and the decision was effectively made by the (former) mayor alone (allowing the Ombudsman to review it). The council's minutes were "not an accurate reflection of what in fact occurred".

Because the mayor has been de-elected and the Ombudsman is already running an inquiry into public-excluded council "workshops", there's no recommendations. But its a useful ruling, and will hopefully influence the latter.

Labour attacks LGOIMA - in secret

Today the government used urgency to introduce a new Local Government Official Information and Meetings Amendment Bill. The bulk of the bill deals with land information memorandums (LIMs), requiring local authorities to notify of natural hazards and granting them immunity for doing so in good faith (hopefully forestalling lawsuits by coastal property owners worried about the effect of such notification on their property values). That bit's fine. But part 2 of the bill amends the disclosure regime, adding national security to the withholding grounds, and introducing a Prime Ministerial veto on release. This aligns LGOIMA withholding grounds with those in the OIA,and according to the explanatory note is being done as

The lack of these conclusive grounds for withholding information may inhibit the ability of local authorities to seek or receive advice on security risks and increase the risk of disclosure of information that could prejudice New Zealand’s security or defence or the international relations of the Government of New Zealand.

Of course, the reason they aren't in the LGOIMA at present is because councils don't do that shit, and nor should they. The Ministers promoting the bill need to be asked for specific examples of such inhibition, or what foreign governments or intelligence agencies our councils are cooperating with, whether information has been released, and what harm it has actually caused. And if they have no such examples, if this is just an arse-covering exercise "just in case" or to enable such cooperation, this part of the bill should be rejected.

According to the bill's departmental disclosure statement DIA "did not engage with local authorities or speak to local government sector organisations about the withholding grounds due to time constraints" (the thought of consulting the real stakeholders - the public - seems not to have occured to them). And yet, they supposedly produced a regulatory impact statement on it in June, which still isn't online and has been kept secret for the last five months. There is also apparently a BORA vet, but its also secret, and likely won't be released until after the bill's first reading. Sadly, given Ministry of Justice's track record, I doubt they'll engage with the freedom of expression issues raised by expanding withholding grounds, let alone the rule-of-law problems of allowing the Prime Minister to over-rule the Ombudsman. But it is highly disturbing that a bill restricting freedom of information rights and expanding secrecy was developed in total secrecy, without consulting those primarily affected: the public.

OTOH, it is a pattern sadly typical for Labour. And when they're currently wanking internationally about their participation in the Open Government partnership, while expanding secrecy at home, it just looks two-faced.

Unlawful secrecy in Rotorua

RNZ has a story today about fireworks at today's Rotorua lakes Council meeting, where a motion to move into confidential session over the controversial Rotorua District Council (Representation Arrangements) Bill caused a councillor to resign. The actual events can be viewed on the council livestream here (from 4:15 to 8:15). RNZ's focus is on the resignation, but meanwhile, something has been missed. Let's look at the report of that secrecy motion:

At a full council meeting today, Chadwick moved to include a discussion about the Rotorua District Council (Representation Arrangements) Bill into a confidential section of the meeting.

She said it was to "enable us all as council, together, to have a free and frank discussion in response to the attorney general's request for further information needed to develop policy work".

The problem: "free and frank discussion" is not a lawful reason to exclude the public from a local authority meeting. In fact, it is specifically excluded by s48(1)(a)(i) of the Local Government Official Information and Meetings Act 1987 (s7(2)(f)(i) is the LGOIMA's "free and frank" withholding ground).

The mayor should know this. The councillors should know it. The council staff responsible for running the meeting should know it. The fact that none of them did, or saw fit to mention it raises serious doubts about the competence of the council, and their knowledge of the laws they operate under. Its also concerning that RNZ's local democracy reporter failed to pick up on this, since you'd expect them to be familiar with LGOIMA. But I guess "councillor resigns" was a bigger story than "mayor illegally seeks secrecy and unaccountability".

Incompatible regimes

The Official Information Act is our core transparency legislation. But its only covers central government. Local authorities are covered by the parallel Local Government Official Information and Meetings Act 1987, which duplicates most of the OIA's provisions, and adds in some stuff about local authority meetings as well. Since the government has been talking about (but not doing) OIA reform, I asked the Department of Internal Affairs whether there'd been any advice on reforming LGOIMA. Their response is here (released docs are here. The short answer is "not really", but its still interesting.

First there's some advice on changes in the 2015 Statutes Amendment Bill, including a change to the Act's purpose clause from "provide for" to "increase progressively" (as used in the OIA). Interestingly, the advice claims that "increase progressively" includes and is stronger than "provide for". Which is interesting in light of the "provided for" language of some older secrecy clauses.

Second, there's the embarrassing incident of the Local Government Regulatory Systems Amendment Act 2019, which changed the defintiion of "working day" in LGOIMA to make it inconsistent with the OIA. Astonishingly, the Department did not bother to consult the Ombudsman about this, who learned of the changes after the fact and was not happy about it. You could see this as a problem with DIA - who on past evidence just don't seem to think about transparency very much at all - but its also symptomatic of a wider problem within the public service, where each agency works within its own little silo, and doesn't stop to think about whether they should be fiddling with quasi-constitutional legislation. One document on the upcoming Statutes Amendment Bill has been withheld, and I'm wondering if they're planning to fix this, or if there are other alignments they need to make.

Thirdly, as part of the above, Local Government Minister Nanaia Mahuta met with the Chief Ombudsman in July 2019 to discuss the issue. Also on her agenda was the Law Commission's 2012 recommendation to merge the OIA and LGOIMA, which Internal Affairs seemed keen to progress. While they did not provide any notes from the meeting, the cover letter for the request says "no decisions were made on these options and this work was not progressed". Which given that the Ministry of Justice had at the time just finished consulting on whether to have an OIA review and what shoudl be in it, suggests a huge missed opportunity for real reform.

A hole in the OIA

Back in 2016, the then-National government did a dodgy deal in which NZ Post - a state-owned enterprise - sold 45% of Kiwibank to the Superannuation fund and ACC, both crown entities. The effect of the deal was to "allow the state-owned enterprise to repay debt [and] pay a special dividend to the government" - effectively plundering the savings of those crown entities for some quick cash. But it had another effect as well: to remove Kiwbank from the coverage of the Official Information Act.

Previously, Kiwibank had been covered by the OIA as a related company of a state enterprise. But the definition of this in s2(1A) of the Act is very specific: to be included, a company must be wholly controlled by one or more state-owned enterprises. If there is any ownership by non-SOEs, then it is no longer covered, even if the other owners are also government entities or wholly government-owned.

This shouldn't be the case. Where local government is concerned, we apply a strict principle: (local) government control means transparency. With a few exceptions, if something is majority controlled by one or more local governments, it is a "council-controlled organisation", and CCOs are subject to the LGOIMA. But for some reason we don't apply this scheme to companies with an identical ownership structure, but a central rather than local government owner. That needs to change. Kiwibank is government-controlled, and so should be subject to the OIA. And so should every other government-controlled company or organisation.

How to complain about MDC's unreasonable LGOIMA charging regime

Back in February, the Marlborough District Council increased the mount it charges for LGOIMA requests. I used the LGOIMA to poke into this, and it seems the case for increased charges is unjustified: the supposed increase in request volumes it rests on is an artefact of the Council suddenly deciding to count media requests (which previously had not been counted). Today, I found the Council minute ratifying the increase, so I've prepared a how-to guide on how to complain if this agency tries to charge you. You can read it here.

An unjustified policy

On Monday, we learned that the Marlborough District Council wanted to charge more for LGOIMA requests. The proposed policy violates OIA charging guidelines, so I asked them for the advice justifying it. MDC provided a rapid response pointing me at the relevant committee agenda item [p38 - 39]. According to that,

Requests for information received are increasing on a daily basis. Often, for example, requesters will go on a ‘fishing expedition’ against an expectation that the ratepayers should fund the costs involved in retrieval of information thought to be of interest by the media or others.

Sadly, they did not provide any statistics to back up those claims, so I asked them for those. I received the response by email yesterday:

The formal requests received through January to November 2019 are as follows:

• January – 7
  
• February – 7
  
• March – 2
  
• April – 13
  
• May – 20
  
• June – 8
  
• July – 39
  
• August – 48
  
• September – 32
  
• October – 28
  
• November 20
  

We note that a separate history of media requests only started from July 2019 and this accounts for the difference between January/June and July/November.

Older statistics "would require compilation which would take considerable time and could trigger the application of our Costs Policy." So looking at this, it appears that the claim that "Requests for information received are increasing on a daily basis" - the justification for increased charges - is because they started counting requests which they had been handling all along. But its not actually clear that anything has really changed, or that higher charges are needed. As for the claim about "fishing expeditions", MDC sadly does not publish a disclosure log, so we can't easily tell how many of their requests would fall into this somewhat nebulous category. So, I'll just have to request some (and along the way make a judgement about how often is "often"). Because otherwise the natural conclusion is that they're objecting to this:

In the last six months, media requests in Marlborough have uncovered council representatives went a decade without a pay rise, 7000 plastic cups were purchased by the council last financial year, and $2.1 million was spent on councillor wages over the last three years.

None of these questions are very exciting, but its the ordinary business of media oversight. And it is exactly what the LGOIMA is supposed to enable. Marlborough District Council's charging regime should not be altered to discourage it.

An unreasonable charging regime

The Marlborough District Council, tired of public scrutiny, wants to increase the amount it charges for LGOIMA requests:

The cost of requesting official information from Marlborough's government agency could almost double after a jump in "fishing expeditions".

Charges could be raised from $60 to $100 an hour for information supplied by the Marlborough District Council, and from $60 to $100 for "assurance" deposits on bigger jobs, to "avoid [a] waste of resources".

The issue was raised at a planning, finance and community meeting last week.

The problem: these proposed charges are higher than the official OIA charging guidelines. While these strictly do not apply to local government, the Ombudsman has repeatedly found that they are reasonable charges for local government to use, and that

the application of an internal charging policy that is inconsistent with the Charging Guidelines, for example, by charging higher rates for staff time or photocopying, risks an Ombudsman’s finding on review that the charge in question was unreasonable.

So, if Marlborough District Council, or any other body, attempts to charge you for a request and the charges are not according to the guidelines, complain immediately to the Ombudsman. This will cost them a lot more time, and they will soon learn that it is cheaper to not try charging.

Today's secrecy legislation

Introducing legislation which shits on the public's right to know seems to have become a daily occurrence for this government. Today's example is the Infrastructure Funding and Financing Bill. The bill establishes a framework for the establishment of "special purpose vehicles" (SPVs) to hide debt from local government balance sheets fund infrastructure such as roads and sewers in "high-growth" councils. SPVs will collect and spend public money in the form of an "infrastructure levy" collected through the local rating system, and will exercise local government powers in their specific areas to enable construction. But they will not be subject to the Official Information Act or LGOIMA, instead having minimal "bespoke disclosure and reporting obligations" which basicly amount to publishing an annual report.

(There's also a statutory Monitor to keep an eye on such entities, but as they must be a government agency, they should be covered).

Local bodies collecting rates and exercising statutory powers to acquire land and construct infrastructure are rightly subject to the transparency provisions of the LGOIMA. The same should apply to these "special purpose vehicles". Otherwise we're effectively seeing a transfer of local government powers into some secret, unaccountable netherworld. And that should not be acceptable to anyone.