Shane Cowlishaw: The OIA is broken, but is unlikely to be fixed

Heavy-handed redactions have become more common under the Official Information Act. Photo: Shane Cowlishaw

The Official Information Act was supposed to make Government more transparent. Instead, Governments from both sides have used and abused the Act to obstruct and deflect requests for public information. Shane Cowlishaw doubts the new Labour Government will follow through on its pre-election rhetoric on the need for reform.

COMMENT:  When you’re in opposition, it’s easy to criticise.

The DHBs are underfunded. High house prices are a scourge on society. Homelessness is rife.

But when there’s a change of government and the shoe sits on the other foot, those once rambunctious politicians have a tendency to go eerily quiet.

To unlock their lips, and the adjoining public service’s, sits a wonderful tool called the Official Information Act (OIA).

It may sound boring, but the OIA is profoundly important.

In 1982 when it came into being it was radical for New Zealand, a surprise introduction by the sour-faced then-Prime Minister Rob Muldoon.

Replacing the Official Secrets Act, under which the release of government information was a crime, the OIA went in the opposite direction by adopting the stance that all information should be public unless there was good reason for it not to be.

Without the OIA, countless important stories would have likely remained buried or unseen.

The sheer scale and danger of our terrible housing stock would be hidden. A man who bribed his way out of prison after killing a New Zealander (see the details of the Robert Hollick case here ) may have escaped justice. The fact John Key is not a shape-shifting reptilian would still be open for discussion.

Unfortunately, the spirit of this law has dissolved in an air of contempt that has spread, like a stain, from the top down.

Under the Jim Bolger/Jenny Shipley Government of the 1990s, the ‘no surprises’ policy was introduced, aimed at making Ministers aware when information was about to be released that they may be questioned on.

In principle, that’s fair enough. Minister’s should know what is happening in their areas.

But over the decades the essence of this policy has warped and morphed into something corrosive.

It has led to a country today where public servants quake in their boots whenever a journalist calls without first going through the communications team, no matter how innocuous the question. This ever-growing mighty wall of 'comms staff' has seemingly forgotten its obligation to the public in a desire to protect its Ministers from embarrassment.

The effect on the OIA has been chilling.

I started my first journalism job in 2008, the same year that the John-Key led National stormed to power. Since then I have witnessed the slow erosion of good-faith as more and more information is withheld, for more and more dubious reasons.

By all accounts, this problem had begun escalating before 2008 under the previous Labour government, but it gathered steam under National.

Fantastic users of the OIA such as Kirsty Johnston and Nikki Macdonald have also noticed the Act’s slippery slide into oblivion.

Just recently the three of us realised a recent trend to withhold information in requested reports as “out of scope”, despite the request asking for the full report itself. How can a section be “out of scope” when no scope has been given? We’ll have to wait and see what the Ombudsman says there.

I have even been contacted by public servants themselves aghast at the spurious reasons their departments were redacting or refusing my information requests.

Tales of Ministerial pressure and gaming the system were numerous. One example? Refusing copies of weekly reports because, officially, they were named ‘weekly bullets’. Out of scope, sorry.

A perfect illustration of how the real truth is often hidden is the Todd Barclay recording scandal.

Newsroom may have broken the full story, which led to the young MP's resignation, but the NZ Herald’s David Fisher had half the yarn first.

His OIA of the police file revealed Barclay had refused to co-operate, but key parts, including the involvement of then-Prime Minister Bill English, were redacted.

Recently, a particularly loathsome example was on show.

Newsroom's Sam Sachdeva had requested information regarding the citizenship application of National MP Dr Jian Yang.

On 17 October, the end of the 20 working day period, the request was extended until 3 November.

But two days later, at about noon, the response arrived.

The problem? Winston Peters was due to make his announcement on who he would form a Government with.

Releasing the OIA at this time, when the media would be preoccupied, was a calculated gaming of the OIA by the Government of the day.

Labour and the Greens have both campaigned for a more transparent government, to fix the problems described above.

Earlier this year a long-languishing piece of legislation was drawn from the Private Member’s cookie tin.

Called the Ombudsmen (Cost Recovery) Amendment Bill, it was drafted by former Labour-MP Shane Jones and suggested charging government departments when the Ombudsman found they had wrongly withheld information requested under the OIA.

It was, predictably, defeated in its first reading, but here’s a quote from the House worth mulling over from Labour MP David Parker, now Attorney General:

“Government departments ought not to be seeking permission from their Minister’s office to release something; they should be doing their duty," Parker said at the time.

“They might tell their Minister that it is happening, but they should not be seeking approval to do it, or negotiating through ministerial advisers and Government departments for that to happen. I know that is happening, we all know that that is happening, and it needs to be stamped out.”

Strong words indeed.

Associate State Services Minister Claire Curran now holds responsibility for “Open Government” and recently told the ODT she was not promising an overhaul to the OIA.

She was “half-hearted” when asked if she agreed the OIA was being manipulated for political purposes, but did say she would dust off a 2012 Law Commission review that was ignored by the previous Government in an attempt to improve the OIA.

Sunlight may be the best disinfectant, but it needs a willing participant to open those curtains.

History has shown that we can’t rely on politicians, and more recently, the public sector to tell the public all that is going on.

Without that transparency, we're asking for trouble. Let's hope I'm wrong, and Labour make things right.