Improving official information practices (NZ0006)
Improving official information practices We will improve government agency practices around requests for official information under the Official Information Act (OIA). Objective: To make government information more accessible by adopting a consistent set of agency practices in response to requests for official information. Status quo: Practice around how agencies handle requests for official information is not uniform, agencies are burdened by increasing administrative load around official information requests, and people find it hard to navigate the systems. Ambition: We are committed to improving how government responds to requests for official information.
IRM Midterm Status Summary
•Ensure information about the OIA (how to make requests, etc.) and responses to requests are easy to access on agency websites. This could include development of single OIA web pages for agencies
•Publish OIA statistics (how many requests, time taken to respond, etc.)
•Develop a clear statement of government policy on proactive release of Cabinet papers and related material
•Develop a suite of consistent measures about OIA performance
•Improve access to official information by publishing responses to requests on government websites and developing principles for more proactive release
•Agencies will be supported to deliver through the development of appropriate guidance and training.
Responsible institution: State Services Commission
Supporting institution(s): Ministry of Justice
Start date: October 2016 .
End date: June 2018
Context and Objectives
The New Zealand Official Information Act 1982 (OIA) and the Local Government Official Information Amendment Act 1987 (LGOIMA) each established a regime of openness in central and local government.[Note102: Official Information Act 1982, New Zealand Parliamentary Counsel Office, http://www.legislation.govt.nz/act/public/1982/0156/latest/DLM64785.html?src=qs; Local Government Official Information and Meetings Act 1987, New Zealand Parliamentary Counsel Office, http://www.legislation.govt.nz/act/public/1987/0174/latest/DLM122242.html?src=qs.] They changed government practice from withholding to disclosing official information unless there are good reasons not to do so, and citizens have benefited for thirty years from this ground-breaking change toward openness. Government agencies have standard practices for complying with these Acts. Over this period, the internet and technology have made information much more readily available. New Zealanders now have increased public expectations of openness; they seek proactive release of information without the necessity of anyone asking for it and many state agencies and local authority entities now operate in the marketplace where they deal with, or are in competition with, private organisations.[Note103: The Public's Right To Know: Review of the Official Information Legislation, Law Commission, June 2012, www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20R125.pdf, 8.]
Proposed changes by the independent New Zealand Law Commission in 2012 to update the legislation and its administration were not adopted by the then Government. These included enhancing guidance about the legislation, simplifying unclear withholding grounds, better protecting commercially sensitive information, encouraging proactive release of public information, improving operational processes, establishing statutory oversight functions, and clarifying the reach of the legislation.[Note104: Id, p377.]
The role of Ministers and their offices in agencies’ decisions to release requested information under the OIA is an issue of public comment. The Press noted on 17 June 2017 that ‘OIA abuses and delays have unfortunately become almost routine.[Note105: Philip Matthews, ‘Editorial: There is no excuse for delaying official information,’ Stuff, 17 June 2017, https://www.stuff.co.nz/the-press/opinion/93759469/Editorial-There-is-no-excuse-for-delaying-official-information.] Former Prime Minister John Key admitted in 2014 that the Government likes to wait the full 20 working days if it is in its interests to do so’.[Note106: https://www.radionz.co.nz/news/political/257009/pm-admits-govt-uses-delaying-tactics.] Preliminary results from 640 responses to a public administration survey by Massey University and Victoria University of Wellington state that ‘it is also clear from our initial analysis that the Official Information Act is influencing behaviour in some departments or agencies and in some Beehive [Ministerial] offices.’ [Note107: Dr Chris Eichbaum, Reader in Government at Victoria University of Wellington; Dominion Post, 8 August 2017, https://www.victoria.ac.nz/news/2017/08/free-and-frank-advice-fast-disappearing.] The researchers comment that ‘to the extent that some actions by ‘political advisers’ are part of the problem, action could be taken to rein in those of a cavalier disposition and ensure those who occupy these privileged positions are aware of their responsibilities, which include not compromising the capacity of others to discharge theirs’.[Note108: Id.]
Former Prime Minister, Sir Geoffrey Palmer, expressed his view on 24 August 2017 that ‘there are blocks against getting information that in a modern democracy is really quite dangerous’,[Note109: 1 News at 6, TVNZ, 24 August 2017.] and expanded on this in a discussion with the IRM researcher on 1 September 2017, stating that ‘the system is broken’ and that ‘the OIA is a playground for Ministers, that this was not constitutional, and that this had been the case for more than nine years’. He proposed that the OIA should be extended to include Parliamentary Services and the Office of the Clerk, exclude the constituency process, and that an Information Authority should be set up to administer the OIA, endorsing the New Zealand Law Commission’s 2012 administrative recommendation. With the exception of Members of Parliament’s work on behalf of their constituents, the operations of Parliamentary Services and the Office of the Clerk would be covered by the OIA. This would include Ministerial offices and was also raised by others, endorsing the submissions presented by the public when this action plan was developed which also sought improved OIA processes, performance data, proactive release of official information and strengthened OIA training.
This commitment meets the OGP values of access to information and public accountability. It addresses all requests for information under the OIA, it covers both proactive and reactive releases of information and it aims to strengthen the right to information. It is relevant to public accountability because the government will be publishing information that calls upon specific agencies to justify their actions, including how many requests each receives and the time it takes the agency to respond. The IRM researcher notes that government updated this commitment’s ambition in its 2017 mid-term self-assessment document to include ‘enhancing public participation in decision-making’ but did not include any participatory actions to progress this.
Planned activities under this commitment are clear, objectively verifiable and are directly relevant to the stated objective. The commitment’s objective is supported by the development and supply of common OIA and proactive release policy, principles, resources, guidance and training. Clear policy and consistent practices are likely to reduce agencies’ administrative burden around official information requests and make it easier for the public to navigate agencies’ individual OIA systems. Each activity contains clear deliverables; however, the commitment does not identify how the government will measure agency uptake of these changes, nor does it include a process to seek feedback from the public. Furthermore, the commitment does not pick up on the wider OIA scope, Ministerial role, or cultural issues that citizens (and the earlier review) had raised. A more transformative change would also include technological opportunities such as providing a single government website where the public can make OIA requests easily and find agencies’ responses in one place.
If fully implemented this commitment would have a moderate potential impact. It could be argued that this work is only updating existing OIA training, processes and resources, and, therefore, of minor impact. The IRM researcher, however, sees regular reporting on agencies’ OIA response rates, proactive release of Cabinet Papers and related material, and promoting the proactive release of responses to OIA requests as essential. The strong and active executive leadership by the State Services Commissioner and the Ombudsman, as indicated in their public statements and their inclusion of statutory Crown entities to which the OIA applies, suggests they regard this as a major commitment.[Note110: ‘Editorial: officials are ratting on the Official Information Act,’ The Dominion Post, 7 February 2017, https://www.stuff.co.nz/dominion-post/comment/editorials/89075405/editorial-officials-are-ratting-on-the-official-information-act. ]. Not including the Office of the Ombudsman as a Supporting Institution is an omission.
The commitment is limited in scope. Transformative change would be achieved with a Ministerial and executive commitment to amend the legislation to encompass Parliamentary Services and the Office of the Clerk, whilst protecting parliamentary privilege, and the concomitant encouragement of cultural change to open government across the public sector. This would be assisted by the provision of a cross-government OIA request and response website, or other virtual process..
At the end of the first year, implementation of the commitment is substantially completed and on schedule. The role of the Ombudsman in this work has been clarified. Of the listed activities, three are fully completed: agencies were supplied with information about the OIA and responses to requests made easily accessible on their websites; OIA statistics were published; and policy developed for proactive release of information. In particular:
•The State Services Commission (SSC) and the Office of the Ombudsman announced joint work to improve OIA responsiveness on 20 October 2016.[Note111: ‘Media Statement: Joint work to improve OIA responsiveness,’ State Services Commission, 20 October 2016, www.ssc.govt.nz/media-statement-joint-work-improve-oia-responsiveness.] On 29 June 2017, the SSC released guiding information for government agencies to place on their own websites. This guide included tips for those requesting official information. The SSC provided all agencies an .html template to ensure easy access.[Note112: http://www.ogp.org.nz/our-progress/publications-reports/supporting-materials/.]
•In January 2017, the SSC published OIA statistics from 110 government agencies,[Note113: http://www.ssc.govt.nz/official-information-statistics. Note that this site only lists the most recent release.] and the Ombudsman published OIA complaints received against Ministers and agencies.[Note114: http://www.ombudsman.parliament.nz/resources-and-publications/oia-complaints-data. Six-monthly report] These statistics, which will be updated every six months, are an accountability league table—the public can see how well each agency is applying the OIA, and which agencies are making information increasingly accessible.
· The Department of Prime Minister and Cabinet (DPMC) updated the Cabinet Manual to include government policy on the proactive release of Cabinet papers[Note115: Cabinet Manual: 2017, Cabinet Office, https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, paras 8.14-8.19.] and the SSC and DPMC released guidance on proactive release of official information on their websites.[Note116: ‘CabGuide: Proactive release of Cabinet material,’ Department of the Prime Minister and Cabinet, 11 August 2017, https://dpmc.govt.nz/publications/proactive-release-cabinet-material; ‘Proactive Release of Official Information: Agency Guidance,’ State Services Commission, https://www.ssc.govt.nz/sites/all/files/OIA%20PROACTIVE%20GUIDANCE.pdf.]
•DPMC released Cabinet Office Notice (15)3 on the proactive release of Cabinet papers on the internal government website, but not publicly. These policy statements are clear but not mandatory, meaning that agencies can choose not to apply them. They state that Cabinet papers and minutes may be released proactively with the approval of the relevant portfolio minister. All Cabinet papers are deemed within scope, except for those on Ministerial overseas travel, appointments, and legislation (draft Bills and regulations).
There is progress toward a suite of consistent measures about OIA performance and support, such as development of appropriate guidance and training to agencies. The SSC assured the IRM researcher that it has worked on definitions with agencies and is currently completing the development of an agency self-assessment tool on official information capability. The SSC is piloting this self-assessment tool with agencies and has developed a prototype self-assessment tool. The IRM researcher suggests it would be helpful if these self-assessment tools were piloted with the public.
While this commitment’s milestones do not include the Ombudsman’s work, the Office’s work programme over the period of this review is relevant. Of particular note is the July 2017 Model protocol on dealing with OIA requests involving ministers[Note117: Office of the Ombudsman. Model protocol on dealing with OIA requests involving ministers, http://www.ombudsman.parliament.nz/system/paperclip/document_files/document_files/2395/original/model_protocol_july_2017.pdf?1509069063.] to be read with the updated guidance on Dealing with OIA requests involving Ministers.[Note118: Office of the Ombudsman. Dealing with OIA requests involving Ministers, http://www.ombudsman.parliament.nz/system/paperclip/document_files/document_files/2285/original/oia_requests_involving_ministers_july_2017.pdf?1501125635.] The Ombudsman advises that this guidance was developed as a consequence of the issues identified in his predecessor’s report Not a Game of Hide and Seek.[Note119: Office of the Ombudsman, Not a Game of Hide and Seek, December 2015, http://www.ombudsman.parliament.nz/ckeditor_assets/attachments/399/oia_report_not_a_game_of_hide_and_seek.pdf?1449533820.] The Office also instigated an investigation of an agency’s processing of an OIA request in response to public concern following media suggestion of improper interference of the Minister’s office on the decision to refuse the request.[Note120: http://www.ombudsman.parliament.nz/system/paperclip/document_files/document_files/2403/original/456080_-_kiwirail_s_processing_of_a_request_for_official_information__v2_.pdf?1510089478.] It regularly reviews and updates its OIA guidance, provides advice and training and publishes case notes and full opinions.[Note121: Office of the Ombudsman. Submission to the OGP on the OGP IRM New Zealand Progress Report 2016-2018 Version for Public Comment.]
Government has made significant progress on its ambition to improve agencies’ OIA practices. There is ongoing media coverage about the OIA statistics proposals,[Note122: ‘Editorial: Will a new plan to rescue freedom of information really work?,’ The Dominion Post, 24 October 2016, https://www.stuff.co.nz/dominion-post/comment/editorials/85627024/editorial-will-a-new-plan-to-rescue-freedom-of-information-really-work.] but the other activities have had little publicity beyond reports to the EAP and media statements on SSC’s website.[Note123: How agencies will respond to information requests,’ State Services Commission, 29 June 2017, https://www.ssc.govt.nz/how-agencies-will-respond-information-requests; ‘Tips for requesting official information,’ State Services Commission, 29 June 2017, https://www.ssc.govt.nz/tips-requesting-official-information.] By the end of the 30 June 2017 evaluation period, the IRM researcher had assessed the early impact of the completed commitment activities two, three, and five:
Activity two: The OIA statistics were released by the SSC and the Ombudsman in January 2017 and included information like logged requests completed during the period (including requests subsequently transferred to another agency), the extent to which responses were provided within legislated timeframe, and more. Further information on differences among agencies was also released with the statistics. Released OIA statistics were reported in metropolitan newspapers and interviewed stakeholders had positive responses.
Activity three: An external stakeholder noted that the government unilaterally created the government policy on the proactive release of Cabinet papers (and related material) and it is not binding. Because the policy’s language seems weighted toward protection rather than release, the same stakeholder sought specific guidelines to promote the proactive release in agencies.[Note124: Steven Price, 21 August 2017, interview with IRM researcher.] Similarly, another stakeholder proposed a regular process and timetable for Cabinet Paper release..
Activity five: Nine (27%) of the 33 departments surveyed are publishing OIA request responses on their websites. The Treasury and Statistics New Zealand have been doing so since 2015.
In sum, stakeholders generally saw this commitment as a commendable first step forward in developing common OIA compliance practice across government. Some saw it merely as a token gesture and wanted stronger government action committing to the purpose of the OIA. Others felt the proposed policy changes strengthened the OIA and sought actions in the next action plan to implement them. Internet New Zealand noted the age of the OIA legislation, commenting that it was written before the Internet came into existence, and recommended a ‘look at its intent, beef up the presumption of disclosure, then let the technology work’.[Note125: Internet NZ, 6 September 2017, interview with IRM researcher.]
The IRM researcher recommends that a clear statement of government policy on the proactive release of Cabinet papers (and related material) is confirmed by the new government, as the policy only applies to the pre-23 September 2017 government. The IRM researcher recommends that the next action plan prioritise three key aspects: it should specify steps for monitoring agencies’ adoption of these actions, it should test whether this commitment has met its ambition by seeking public feedback, and it should address the broader outstanding OIA issues raised by stakeholders. The following activities are recommended:
•include in future OIA compliance statistics the numbers of requests withheld, actual time taken to respond (including applying a 20-day response process), and the number transferred to Ministers’ offices;
•initiate work to amend the OIA legislation to encompass Parliamentary Services and the Office of the Clerk, whilst retaining parliamentary privilege, in line with the recommendations by the Law Commission report in 2012[Note126: The Public's Right To Know: Review of the Official Information Legislation, Law Commission, Recommendations, www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20R125.pdf, 124-129.] and others, and building on administrative and legislative developments since then such as the Parliamentary Privilege Act 2014;
•add proactive release to the intent of the OIA and LGOIMA, simplifying unclear withholding grounds, and better protecting commercially sensitive information;
•address the ongoing machinery of government question raised in the Law Commission reports, and by others, which asks whether there is a need for an Information Authority with statutory oversight functions, and considers whether the Office of the Ombudsman and the SSC have taken on those roles, and the impact of this;
•review and provide a cross-government (including local government) OIA request and response website or a virtual process to achieve that; and
•create a cultural change programme which encourages government officials to apply the new guidance and adopt the open government principles in the OIA and LGOIMA.
IRM End of Term Status Summary
2. Improving official information practices
The forums and workshops, intended for all Crown entities and government department subject to the OIA, were well attended, as were induction events on the OIA for ministerial staff after the September 2017 general election. [Note23: Email from the State Services Commission on 15 November 2018 that 60 staff attended the January 2017 Official Information Act (OIA) Forum, 42 attended the May 2017 forum, 42 attended the December 2017 workshops on proactive release policy, 35 registered for the December 2017 workshop, 84 attended the August 2017 OIA Forum for Leaders on proactive release, 150 attended the August 2018 Practitioners Forum, and 99 attended the October 2018 Forum for Leaders on proactive release of Cabinet papers.]
Did It Open Government?
Commitment 7 in the 2018–2020 national action plan could lead to advice for the government on whether to initiate a formal review of official information legislation. It would also progressively increase the proactive release of information. Commitment 7 would implement government policy to publish Cabinet papers proactively within 30 days of final decisions (unless there are good reasons to withhold specific papers).
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