The Official Information Act Doesn’t Work

Over the past few months, I’ve made several Official Information Act requests. Official information is our information, it is data held by government; an institution which is, in principle, beholden to us. However, the standard practice of government departments almost completely disregards the law. It is standard to have requests declined on spurious grounds, to have requests ignored, or to have responses delayed past the maximum limit set in law.

A good case is my first request, asking the Ministry of Social Develpoment for all performance indicators for roles at Work and Income. Under the OIA, a decision must be made on a request within 20 working days following the day of receipt. The initial response I received was days late, and did not meet the standard of being a decision on my request, so I complained to the Ombudsman, our government watchdog.

I am informed your request was received by the Ministry on 1 July 2016. By my calculation, a decision should have been made and communicated to you by 29 July 2016 at the latest.However, no decision was made on your request by that date. While the Ministry did write to you on 1 August 2016, I have found that response did not amount to a ‘decision’ for the purposes of the OIA. A decision must be clear as to whether an information request is to be granted, in full or in part, and, if not, provide reasons why the agency cannot or will not release information, having regard to the public interest. Accordingly, MSD’s failure to make and communicate a decision continued until a substantive response was provided to you on 19 August 2016.

The Ombudsman is not mandated to do ensure compliance with the law, they can only issue statements to government officials requesting that they comply with the law. As such my complaint was upheld, but the Ombudsman was unable to do anything more than inform the Minister that her ministry was not complying with the law.

In these circumstances, although I have found that the Ministry’s actions were in breach of the requirements set out under the OIA, I do not consider it necessary to make a formal recommendation in this case. However in writing to the Chief Executive of the Ministry today, I have reminded him that I regard timeliness, and compliance with OIA, as a fundamental obligation. The Chief Ombudsman is commencing an ongoing programme of proactive investigations into agencies’ OIA compliance and practices, and drawing public attention to cases where there is demonstrable non-compliance. Although it is inevitable that the work that the Ministry is doing at present to improve its processes will take some time to reach its full effect, it must be progressed as a priority.

This sort of response is adequate for a once-off issue; if the government departments were not explicitly violating the OIA on a regular basis. However, these violations are commonplace. A cursory look over my other requests reveals almost every single request has some sort of unlawful behaviour on the part of the government:

I sent an OIA request to Gurpreet Arora following his contribution to Radio New Zealand in which he said Indian students “could be getting involved in crime as well, committing crime, getting involved in activities, prostitution” as a result of debts incurred studying in New Zealand. He has yet to respond at all, despite being far past the legislated deadline.

I also requested from New Zealand Police a set of data requesting the locations of Police checkpoints. This was responded to late, and the response did not address the request I had made.

A watchdog with no teeth works only when those being watched are afraid of its bark. Government departments have long since realised the Ombudsman does not wield the power to really ensure the law is followed, and they’d prefer to break the law than provide potentially embarrassing information.