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Official information law is a horse and cart on a Formula One race track – former ombudsman

In 2019, stuff first published the Redacted series exploring the problems with the Official Information Act (OIA). Three years on, we’re revisiting the OIA to see what’s changed.

The law governing access to official information is as outdated as a horse and cart on a Formula One racetrack, a former information watchdog says.

The Official Information Act (OIA) is “out of time” and needs a “deep review”, according to Leo Donnelly, who worked for 32 years at OIA watchdog the Office of the Ombudsmen and has spent the past four years helping people extract information .

“The OIA has done well for 40 years, but it’s fundamentally a tool for a different age,” Donnelly said. “The legislation is now a horse and cart on a Formula One racetrack.”

In July 2020, former justice minister Andrew Little promised to rewrite the law, following submissions to the Justice Ministry revealing problems with delays, refusals and excessive deletions.

Ministry officials said an effective official information law was vital to a functioning democracy, and reviewing the law would provide “an opportunity to consider improving the openness, transparency and accessibility of government information”.

Two years on, Little’s promise remains unfulfilled.

The review was kicked down the road after the justice portfolio was passed to Kris Faafoi, who said it was likely to be done “later in this parliamentary term”. However, Faafoi left parliament in June and the responsibility passed to new Justice Minister Kiri Allan.

A spokesperson for Allan said she was working through her priorities, “with a focus on making the system more fair and equitable”.

“Commitments by former ministers will be looked at as part of that work-through, alongside other issues such as criminal justice, electoral law and victim support.”

In October 2020, advocacy organizations the Child Poverty Action Group, Greenpeace, Forest and Bird, JustSpeak, New Zealand Council for Civil Liberties and Amnesty International called for a comprehensive, independent review of the OIA “following growing concern that it’s not fit for purpose” .

All those organizations have reiterated the need for reform.

Council for Civil Liberties chairman Thomas Beagle said a review was needed to reduce delays and political interference and increase accessibility and accountability. The law should also be extended to more government agencies.

Has anything about the public's access to official information improved?

Sungmi Kim/Stuff

Has anything about the public’s access to official information improved?

“We very strongly believe there needs to be a review. I think the shortcomings of the OIA are becoming more and more obvious, rather than less, unfortunately.”

Greenpeace spokesman Adam Currie said a review was “urgently required”. The organization had been waiting a year for a single historical document, about the Rainbow Warrior bombing and Currie recently received an OIA response from Climate Change Minister James Shaw that refused or withheld 14 out of 15 documents and redacted all comments from the one document released.

“Transparency is everything,” Currie said. “How are we supposed to hold the government to account when massive brick walls are erected between the public, minister’s decisions and advice from officials?

“The government needs to rebalance the OIA in favor of transparency and the public’s right to information about these decisions that impact us, the environment and future generations.”

Amnesty International Aotearoa campaigns director, Lisa Woods, said Amnesty strongly believed a “comprehensive, independent” review was needed.

Her organization used the OIA to hold decision-makers to account, but that was hampered by long delays, excessive deletions and a failure to keep up with massive technology changes. One 2020 request to Corrections about lockdown hours in prisons was extended by 40 days – a delay the Ombudsman later found to be unjustified, Woods said.

“The OIA is far too important to let flounder. All of this shows why there must be a review of the OIA, rather than relying on an ad hoc approach to practice improvements.”

An OIA request by the Council for Civil Liberties for policy documents underpinning the government's decision to introduce vaccine passes was rejected on the basis it would be “proactively released” – in three months' time.

An OIA request by the Council for Civil Liberties for policy documents underpinning the government’s decision to introduce vaccine passes was rejected on the basis it would be “proactively released” – in three months’ time.

Is proactive release the answer to OIA problems?

Government agencies releasing information before they’re asked – known as proactive release – is often touted as a solution to the problems of overloaded officials and OIA delays.

Beagle said getting information without undergoing a lengthy OIA request process was preferable. However, proactive release could also be used to game the system.

When he made an OIA request in October 2021 for the policy papers underpinning the government’s decision to introduce vaccine certificates, his request was refused, on the basis the information would be proactively released, “by late January”.

“That’s just ridiculous,” Beagle said. “You can’t proactively release something in a few months’ time, after someone has already asked for it. It just doesn’t make sense.

“Proactive release is a real win. But, it’s not the be-all and end-all…and it can’t be used just as a way to hide and delay.”

Donnelly warned proactive release could also present a distorted view. While responses to OIA requests had to disclose what information was being held, proactive releases did not.

“If I want to change your perception or interpretation, I can change the base information. I reorder it so you see something different. And the way you do that is by what you disclose, or the timing, or the context.

“That’s the danger of proactive release. I release a lot of stuff, but I don’t release other stuff that colors how you would interpret what’s in front of you.”

In 2019, stuff first published the Redacted series exploring the problems with the Official Information Act (OIA). Three years on, we’re revisiting the OIA to see what’s changed.

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