Worse and worse

Cancer Minister Casey Costello is in trouble again over her secret, magically appearing tobacco policy document. The Ombudsman has already found that she acted contrary to law in refusing requests for it; now she has been referred to the Chief Archivist over a possible breach of the Public Records Act over her claim that it magically appeared on her desk and that she has no idea who wrote it:

Casey Costello has again been reprimanded by the Chief Ombudsman for her handling of a mystery document containing tobacco-industry friendly ideas, which she passed to health officials to develop policy.

[...]

Now Chief Ombudsman Peter Boshier has released a new investigation into Costello's handling of the document.

He says he is "concerned the associate minister was unable to produce any records about the provenance of the notes" and has "taken the rare step of notifying the chief archivist about the record keeping issues in this case".

The chief archivist has a range of powers to examine matters relating to record keeping, under the Public Records Act.

The Ombudsman refers a handful of complaints to the Chief Archivist each year, though referring a Minister is unusual. The penalties for contravening the Act are derisory, but reminding Costello and her staff of their legal obligations might be helpful.

...assuming its allowed to get that far. Because thanks to National's restructuring last time they were in power, the Chief Archivist is now part of the Department of Internal Affairs, and works for a Minister. While they have statutory independence in some areas, this does not seem to cover their investigative functions. Which seems deeply unsatisfactory when they're called upon to investigate Ministers. We will need to watch carefully to ensure there is no Ministerial fuckery from National over this.

Sticking a privacywall on our history

Archives New Zealand is the repository for our public records, the institutional collective memory of the nation. All sorts of people use it: genealogists, historians, policy wonks. I've used it, when digging into the history of sedition, or of the Official Information Act. But the Department of Internal Affairs has just decided to make using the archives much harder: they've introduced a new search engine to replace the old (but quite effective) Archway. This will allow access to some recent digital records online, which is great. But if you want to view older records, either by visiting and looking at them on paper, or by getting the staff to digitise them, you'll need to get a RealMe account:

To book a viewing in one of our reading rooms or to pay for an archive to be digitised you’ll need to login using RealMe.

Why is this a problem? Well, apart from the conceptual problems of an agency which is supposed to be all about enabling public access sticking a privacywall on our history, people absolutely hate RealMe, making it effectively a barrier to access. When people say things like "I hate RealMe with a visceral loathing" about a digital identity system, you probably want to avoid it (which is why NZ businesses generally do).

But it also seems entirely unnecessary. Why do you need a digitally verified identity to visit what is essentially a library? What was wrong with the old system of physically signing up and signing in? Does the government really need to be able to link what you request in the archives with your medical, welfare, and travel records? Or is the real problem here that nobody was using RealMe if they could possibly avoid it, so DIA (which runs the digital ID system as well as the archives) decided to try and forcibly impose it on more people?

The wrong conclusion

Back in September, we learned (thanks to a whistleblower) that the SIS had looked the other way on child abuse. Today, the Inspector-General of Intelligence and Security released their report on the issue. Their verdict is basicly the Scottish one: "not proven". Why? Because there are no records showing the question of passing the information on was ever considered. The SIS's "internal review" took that as somehow exonerating them: effectively a "we have no idea what happened, but we're sure we did the right thing". The IGIS concludes the opposite: that they did not tell the police. But the lack of records of any consideration and the lack of any legal obligation or policy on the issue means they refuse to conclude that it was improper:

At a distance of some decades, with the limited information available, I do not find myself in a position to reach a firm conclusion that the Service acted improperly by not informing the Police of what it learned in this instance. A Service officer proposed, with good reason, that the Police should be contacted. More senior staff in the Service were entitled to make a decision. The information was not passed on. I find that questionable, but in the absence of any recorded reasoning and considering all the circumstances I cannot be sure it lacked a proper foundation.

Nowdays, the Public Records Act means public agencies have a positive obligation to create and maintain records, so if something like this had happened after 2005, the lack of records of a potentially significant decision would imply that it was never considered (or alternatively, that a crime had been committed). Back then, there was no such obligation, so the IGIS is giving them the benefit of the doubt. I'm not sure that they should. They note that this was a serious decision requiring serious consideration, and that at the time such consideration generated a paper trail. The absence of such a paper trail suggests strongly that there was no such consideration. And that is exactly the impropriety complained about.

The good news is that the SIS now has a police on when to pass information to the police, so there's a standard for them to be judged against (even if its one they wrote themselves, in secret). The IGIS will also be reviewing information sharing between the SIS, GCSB, and police. So maybe they'll be stopping this from happening in future.

Yes, the SIS is subject to the Public Records Act

I understand there's some stuff going round about how the SIS "was removed from the list of public offices covered by the Public Records Act in 2017". The context of course being their records derived from US torture, which will be disposed of or sealed.

The good news is that its wrong. Yes, a clause in consequential amendments schedule of the Intelligence and Security Act 2017 repealed the explicit reference to the SIS from the list of public offices in the Public Records Act 2005. But that was because another clause in the Act itself added it to schedule 1 of the State sector Act 1988, making it a department of the Public Service. Which of course are the very first thing in the list of types of bodies that are public offices covered by the Public Records Act. So, they're covered. It might be next-to-impossible to ever see anything they have ever held, but at least it will be kept so historians in a hundred years can look it.

A convenient information gap

Last week, Christchurch turned into an armed police state after the Christchurch police paniced over an armed offender and decided to carry guns at all times until they were caught. How often does this happen? As The Press points out in an editorial this morning, we don't know, because the police don't bother to keep records of it:

We don't know how often every frontline police officer carries a gun, largely because these orders are not usually announced and because police headquarters does not keep records of this sort. Why not?

Its a good question. Whether to arm police is an important policy decision and one which requires the highest level of public scrutiny. A refusal to keep records (or the keeping of records in a haphazard, distributed fashion so they cannot be recovered) frustrates this scrutiny. Which is, I suspect, the point. But while it is convenient for the police, it does not appear consistent with the duty under the Public Records Act for public offices (explicitly including the police) to "create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice" is left as an exercise for the reader. Failing to obey this requirement is a criminal offence. So maybe someone should lodge a criminal complaint and see whether the police actually obey the law, or place themselves above it?

The law means nothing

Disposing of public records without authorisation is a crime. Destroying them to prevent their release under the OIA is an aggravating factor in that crime. But when push comes to shove, it seems that the Chief Archivist isn't actually interested in enforcing the law:

Archives New Zealand has decided not to prosecute the former chairman of RNZ Richard Griffin over a voicemail left on his phone by former government minister Clare Curran a year ago.

Ms Curran called Mr Griffin after it was revealed he and the RNZ chief executive Paul Thompson had misled the committee over the nature of a meeting between the former head of news Carol Hirschfeld and Ms Curran.

In the voicemail, she urged Mr Griffin to write to the committee to correct the record as soon as possible but Mr Griffin took that to mean she would rather he wrote than turned up in person.

He subsequently refused to hand over the voicemail despite formal requests for it.

Chief Archivist Richard Foy said the matter did not meet the threshold for prosecution.

I guess it was all just too hard. But with this decision, the Chief Archivist has sent a clear message to Ministers and officials that its perfectly OK to illegally dispose of or even destroy public records to thwart an OIA request, and that they will face no penalty for doing so - undermining our entire system of transparency. And from the public servant responsible for protecting that system, that is simply unacceptable.

As for Griffin, with this sort of approach to public records and accountability to parliament, he is unfit to ever work in government again.

A convenient failure

How many children in state care have mental health issues or have attempted suicide? Conveniently, CYFS doesn't know:

A psychiatrist says it's a "failing of the system" that Oranga Tamariki, the Ministry for Children, does not know how many children in state care have mental health issues or have attempted suicide.

RNZ asked for the figures and was told the ministry did not collate that information, and that it would not provide the data as it would be too much work.

They do record the information on people's individual files, but they don't bother keeping aggregate statistics. Which seems like a basic failure of both their core duty to care for children, and of their legal duties under the Public Records Act. On the first, you can't manage what you don't measure, and refusing to compile statistics prevents them from seeing trends and big picture problems and solutions. On the second, every government agency has a legal duty to create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice. Any competent agency dealing with children in care would collect statistics on their mental health. CYFS' refusal to do so is thus a mark of incompetence, and also a criminal offence. But when are government agencies ever held to account for those?

Contractors, public records, and the OIA

One of the big shifts in government over the last 30 years has been the move to contracting out of services. Budget cuts, staff caps, and the pressure to "do more with less" has seen agencies contract out core operations, sometimes to low-cost providers, sometimes to the very people they've just sacked. But this raises issues around official information, public records, and our right to access them. Are agencies protecting our rights and complying with their statutory obligations?

The answer, according to an OIA filed through FYI, the public OIA system, is "partly". The requester asked for information on MPI's contractor email records policy, and specifically how Public Records Act compliance is managed. MPI's response includes the relevant contract templates for each of the three types of arrangement contractors are hired under. Contractors employed under a Work Authorization agree to turn over all information and intellectual property to MPI at termination. Those employed under an all-of-government recruitment agreement are merely required to conform to New Zealand law and to MPI policies (which includes adhering to the OIA). Only the government's Model Contract for Services includes a specific OIA / Public Records Act clause, requiring contractors to keep records, turn them over immediately if required to perform a statutory duty (and in a reasonable timeframe otherwise), and store them for seven years after termination. Which neatly covers OIA responsibilities during the contract, but unless MPI and other agencies demand a full turnover at the end of a contract, means this official information effectively disappears from government control (and public access) the moment a contract ends.

Whether they do in fact ask for such a turnover seems like a good subject for a followup request, perhaps to multiple agencies. But if they don't, then with increasing use of contractors, we run the risk of an increasing chunk of our public records disappearing from the public record.

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.

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.

NZ's history is secure

Over the xmas break, we learned that the British government was conveniently "misplacing" documents from its national archives - documents which detailed the crimes of empire or which might be inconvenient or embarrassing for the establishment in the future. The mechanism for this crude coverup is temporary loan back to the originating agency, which then somehow "loses" the embarrassing file (or in some cases, only the embarrassing pages).

(That's of course the stuff that makes it into the archive. The British government has also had systematic processes to stop records of their crimes being archived in the first place)

When I read this, I was curious: New Zealand has a statutory process for temporary return of archive material, so does anything similar happen here? I used the OIA to ask Archives New Zealand some questions about temporary returns and missing documents, and the response I think is one that can give us confidence that our history is secure:

The number of items temporarily returned to originating or controlling public offices differs each year based on demand. The Government Loans service processed 3,482 files for offsite loan during the 2017 calendar year. For 2016, a total of 3,408 items were issued; 4,166 items were issued in 2015. These numbers cover all of our offices (Auckland, Wellington, Christchurch and Dunedin).

[...]

We find that our government loans clients take the security of the items they borrow very seriously. There are 22 items listed as ‘Missing – Government Loans’ in our system.

I've asked for a list of those files, but the overall picture appears to be good. You'd expect a small rate of loss as part of the bureaucratic process, but this appears to be extremely small indeed. Unlike the UK, we don't appear to have systematic government destruction of our history. But I guess we have far less to be ashamed of...

Hoist by their own petard

Back in 2009 Parliament passed a new Immigration Act. One of the "features" of the new Act was a massive increase in what the Act terms "absolute discretion" - the power to make a decision without having to give reasons. Immigration New Zealand loved this, and promptly went beyond the law by instructing their staff not just to not give reasons to their victims in such cases, but to not even record them in the first place. Now, that instruction and attitude has come back to bite them in the arse.

In a case note released today, the Ombudsman has ruled that the absence of recorded reasons for an immigration decision makes it unreasonable:

The Chief Ombudsman formed the provisional opinion that because the DDMs had failed to record reasons, it could not be determined that all relevant considerations had been addressed and that therefore the Ministry’s decisions were unreasonable. The Chief Ombudsman considered that the case notes prepared for consideration of the complainant’s requests were insufficient to demonstrate that the decision was properly
reached, and that any process omitting to record reasons for a decision was administratively unsound.

Whoops! Especially when you remember that the decision not to record reasons in the first place was made explicitly in an attempt to thwart such review. Instead, its made all such decisions instantly overturnable. The good news is that Immigration has since rescinded the instruction not to record reasons, and now requires that they be "briefly" recorded. But we're still looking at nearly two years of decisions being prima facie unreasonable. Heckuva job they're doing there. Great use of public money. But somehow, I doubt that the muppets who came up with this idea will face any consequences whatsoever for their incompetence.

Something fishy in Christchurch II

Back in May I highlighted something fishy going on at Otakaro Ltd. Otakaro is the government's delivery vehicle for the Christchurch rebuild. But in May, Christchurch reconstrution Minister Gerry Brownlee allowed it to change its constitution, removing a requirement that its board keep "full and accurate minutes are kept of all proceedings" and explicitly allowing it to repudiate its own minutes. More recently, I've been made aware that Otakaro, a government-owned company responsible for billions of dollars of government assets and expenditure on a major government project - has been exempted from the Public Records Act. Which means that it is no longer required to

create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice...

[From the documents I've OIA'd from the Chief Archivist, it seems that this exemption has caused a bit of a headache, since it means that Otakaro cannot legally be transferred public records formerly held by CERA. Its enough of a headache that they are apparently investigating "amending [the] PRA 2005 by order in council". Its not clear whether that is to bring Otakaro and similar crown-owned companies under the Public Records Act regime, or whether it is to legalise the at-present unlawful destruction of public records. I'm poking into that further...]

The problem? As a company named in Schedule 4A of the Public Finance Act 1989, Otakaro is subject to the Official Information Act. Obviously, that's pretty meaningless if it is not required to retain official information so it can be requested.

And the kicker: I asked Otakaro if they have a document retention / archives policy. Their answer? Of course not.

So, just to make that clear, a government-owned company responsible for billions of dollars of government assets and expenditure on a major government project and subject to the OIA is not required to create and retain proper records and has no policy for doing so. You'd almost think they didn't want people to look at what they were doing...