Progressive bills and freedom of information

datePosted on 09:22, February 17th, 2009 by Anita

No Right Turn is running a wiki for the development of Progressive bills, it’s a great opportunity to figure out some progressive possibilities and get them happening. So if there’s any way you’d like to make NZ more progressive, and you can imagine it being achieved through a private members bill this is the place for you! :)

I”m currently struggling with how to improve our freedom of information legislation, the Mexican model has some real possibilities, but it’s not as easy as one might hope.

My goal is two fold, firstly to extend the amount of information made available (extending it to Parliament and so on) and secondly to make it harder for agencies to game.

My experience with OIAs is that some agencies are lovely, when others require chasing, more chasing before they provide incomplete and overdue responses (at which point the Ombudsmen can sort it out), but it makes a mockery of the current rules, and is unreasonably time and energy intensive. I’m not sure whether legislative change would fix it, or whether a fundamental cultural change is required

The principle underpinning freedom of information is that it’s our information and our government; and that transparency increases justice, fairness and accountability, yet many agencies behave as if they have a right to secrecy and evasion. What would change the attitude?

8 Responses to “Progressive bills and freedom of information”

  1. Rich on February 17th, 2009 at 09:32

    I think there should possibly be more proactive disclosure. At the moment, most government documents stay hidden unless someone requests them, until after X years they get filed at Archives.

    Maybe there could be an expectation that all documents go on an accessible database unless they have a reasonable expectation of confidentiality.

    The gaping hole in official disclosure involves councils and SOEs, who hide behind “commercial confidentiality”. This is often based around the concept that suppliers to public bodies are entitled to have their commercial discussions kept secret. There isn’t really any reason for this – if suppliers were told that tender bids and the like were going to be made public, they wouldn’t refuse the work. If anything, more transparency would mean that public bodies would get their work done at a better price.

  2. StephenR on February 17th, 2009 at 12:00

    The principle underpinning freedom of information is that it’s our information and our government; and that transparency increases justice, fairness and accountability, yet many agencies behave as if they have a right to secrecy and evasion. What would change the attitude?

    I have little experience of knowledge of this issue, but how about the ‘stick’ approach? e.g. if so many OIA requests are not responded to within ‘x’ time period per year, some sort of penalty is applied to the department? I don’t think it could be financial, as depriving govt departments of cash would be a bit counterproductive, but if the right penalty could be thought of, i’m sure the departments would quickly think of their own ways of making sure OIAs are complied with…

  3. BeShakey on February 17th, 2009 at 12:20

    Maybe there could be an expectation that all documents go on an accessible database unless they have a reasonable expectation of confidentiality.

    I can’t imagine how this could possibly work. The OIA includes emails, meeting notes (not just formal minutes but handwritten notes from attendees etc), all final internal documents (by final I mean that drafts are excluded). I suspect that the amount of time and effort required to make all these available would be prohibitive. Even putting that aside, I suspect that the result would be the release of literally millions of documents every year. The burden would presumably then be on the public to sift through these and find the relevant ones, whereas the burden is now on the OIA request recipient.

    The gaping hole in official disclosure involves councils and SOEs, who hide behind “commercial confidentiality”. This is often based around the concept that suppliers to public bodies are entitled to have their commercial discussions kept secret. There isn’t really any reason for this – if suppliers were told that tender bids and the like were going to be made public, they wouldn’t refuse the work. If anything, more transparency would mean that public bodies would get their work done at a better price.

    Having seen some of the documents that aren’t released because of “commercial confidentiality” I can say that there are good reasons in at least some cases (the sample I’ve seen is very small, and I suspect that, like most OIA exceptions, this one is misused sometimes). For instance, tenderers will often describe parts of their operation that they would utilise if their tender is sucessful that they wouldn’t want their rival to be aware of. Alternatively, if a tenderer knows that their nearest rival tendered at 20% higher price, it’s likely that they would significantly increase their price next time round. I’m sure there are other examples.

  4. Anita on February 17th, 2009 at 12:59

    Rich writes,

    I think there should possibly be more proactive disclosure. At the moment, most government documents stay hidden unless someone requests them, until after X years they get filed at Archives.

    If the Directory of Official Information was done well it would solve some of this, in that it should provide an accessible list of what information is held by whom so that people know what exists and how to get it. In practice it’s an unnavigable mire which is just about impossible to find unless you know what it’s called.

    Maybe there could be an expectation that all documents go on an accessible database unless they have a reasonable expectation of confidentiality.

    The Public Records Act, at some level, provides for this for non-current documents. Current documents however…

    One of the challenges is that OIAs are often for documents other than the “formal documents”, for example all the correspondence (including email) about a particular topic. So aggregating it would be a bit horrid.

    Another challenge is that a lot of OIAs are for information which requires some interpretation, for example the numbers of something broken down by region and financial quarter.

    But in principle yes, if there was an established place to find many current documents it would help a lot, providing that it didn’t prevent people accessing other material held in other places.

  5. Anita on February 17th, 2009 at 13:05

    StephenR writes,

    I have little experience of knowledge of this issue, but how about the ’stick’ approach? e.g. if so many OIA requests are not responded to within ‘x’ time period per year, some sort of penalty is applied to the department? I don’t think it could be financial, as depriving govt departments of cash would be a bit counterproductive, but if the right penalty could be thought of, i’m sure the departments would quickly think of their own ways of making sure OIAs are complied with…

    One of the parts of the Mexican law is that if an agency doesn’t respond within the timeframe they are deemed to have agreed.

    In a NZ context that would mean that if the agency doesn’t either respond or tell the requester that it has granted itself an extension within 20 days they would not be able to withhold anything. I kinda like that, although it might increase the number of spurious extensions.

  6. BeShakey on February 17th, 2009 at 13:20

    Another challenge is that a lot of OIAs are for information which requires some interpretation, for example the numbers of something broken down by region and financial quarter.

    Not sure what you mean here, but the OIA only covers existing documents. So, for instance, if you requested something broken down by region, and such a document didn’t exist then the agency could respond that they had no document that met the requirements, even if they did possess the necessary information to produce such a document.

    One reason, I suspect, for the delays is that the OIA isn’t being used quite as intended. The idea was to allow the public to gain access to official documents. The reality is that most requests are from politicians (or research units, party staff etc). The volume of these can make it hard to meet the deadlines. The other factor affecting deadlines is that, even when it isn’t the Minister that has been OIAed most Ministers are very keen to at least see OIA requests that are likely to be sensitive. In many cases if they don’t like what is being released they will take steps to prevent the release, which will often mean the deadline is missed.

  7. Anita on February 17th, 2009 at 13:53

    BeShakey writes,

    Not sure what you mean here, but the OIA only covers existing documents.

    Nope, it covers existing information whether it is in document form or not.

    So, for instance, if you requested something broken down by region, and such a document didn’t exist then the agency could respond that they had no document that met the requirements, even if they did possess the necessary information to produce such a document.

    If such information existed within a dataset then they would be required to collate and provide the information. If the effort was too great they could us 18(f) to refuse the request, although 18A is usually interpreted to say that they should offer the requester the opportunity to pay for the collation or research.

    One reason, I suspect, for the delays is that the OIA isn’t being used quite as intended. The idea was to allow the public to gain access to official documents. The reality is that most requests are from politicians (or research units, party staff etc).

    It might not be what was initially intended (although I think it was), but it’s how it has always been, and it’s still about openness, transparency and accountability – so agencies should expect and staff for it.

    The volume of these can make it hard to meet the deadlines.

    Volume doesn’t make it hard to meet deadlines, peaks and troughs and inflexible staffing allocations do. Only once in my public sector experience was a peak so high that we failed to meet an information request deadline (we were swamped in written PQs and we missed by one day), but that branch was pretty committed to openness.

    If agencies truly wanted to meet deadlines then they would provide the resource to do it.

    The other factor affecting deadlines is that, even when it isn’t the Minister that has been OIAed most Ministers are very keen to at least see OIA requests that are likely to be sensitive. In many cases if they don’t like what is being released they will take steps to prevent the release, which will often mean the deadline is missed.

    Yeah, and that’s part of the culture problem. It should be unacceptable (both legally and in terms of expectation) for Ministers to do that.

  8. Rich on February 17th, 2009 at 14:02

    The reality is that most requests are from politicians (or research units, party staff etc).

    Who are also members of the public, surely.

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