The Official Information Act, pictured here in a forest. Image: Getty

Bluster, waste and delay: the new reality of a rotten OIA

Even what should be straightforward requests under the Official Information Act now risk getting kicked into the long and prickly grass. Sam Warburton recounts his latest painful experience.

How many public servants does it take to change a lightbulb? Hopefully fewer than the 50 it takes to process an Official Information Act request.

Researchers and journalists (we aren’t that different) rely on the Act to access information and to encourage departments to be open with their data. For journalists, access helps them hold governments and their agencies to account. For organisations like The New Zealand Initiative, access helps inform our policy work and lift the standard of policy debate.

My first encounter with the OIA was as a first-year student in 1999. I’d asked the then-Ministry of Commerce for some information for an essay. The initial response came within two days, mostly pointing me to the ministry’s website for several reports. When I explained that my economic situation meant I had limited internet access and couldn’t afford the printing, the staffer mailed me everything with the big red RELEASED UNDER THE OFFICIAL INFORMATION ACT watermark. It was slightly thrilling, as if receiving stolen files during the Cold War.

That speed of response, proactive publication, and general helpfulness is almost extinct today. Though Clare Curran, in her role as associate minister of state services (open government), has talked of the need for OIA reform, it’ll be a hard slog. Newsroom’s Shane Cowlishaw recently outlined the massive scale of the task in front of Curran.

For this reason, The New Zealand Initiative is joining the coalition to fix the Official Information Act initiated by Bryce Edwards – so far only a loose collection of researchers, lobbyists, journalists and academics, but one which will help accelerate needed reform.

Here’s the story of my latest encounter with the OIA, and perhaps the first action under the coalition banner.

The request

When I left the Ministry of Transport in July, I asked the two managers I reported to for a bunch of spreadsheets and background documents in areas I expected to continue working on at The New Zealand Initiative.

Most of these were documents I had authored. Some included analysis of the rising road toll back in 2016 which failed to find much interest at the ministry, but more with the public in the past few weeks. Others included technical models I said I’d be developing further and would be happy to share back with the ministry.

I specifically excluded anything that was advice to the minister, partly because of the ministry’s history or non-compliance with the OIA when it comes to particularly sensitive material. After all, two recent high-profile examples demonstrated the difficulty of getting sensitive material out of the ministry:

During the Joanne Harrison fraud saga, former MP Sue Moroney requested information about a finance team restructure that saw three staff who’d raised concerns about Harrison lose their jobs. Moroney got the year of the finance restructure wrong, and the ministry used that to propose refusing the request on the grounds that no such information existed.

The minister’s office repeatedly asking KiwiRail to withhold a document on multiple bogus grounds. The ministry advised the office about one of these grounds, saying that the office had correctly applied the grounds and that it was standard ministry practice. The ombudsman disagreed, preferring the approach set down in ombudsman guidelines for years.

The response and a second request

In short, the ministry’s response to my request was late and full of potentially – ombudsman ruling pending – unlawful redactions including of material that was previously publicly available.

The Ministry even password protected the spreadsheets, thus preventing copying, pasting and editing.

Frustrated by the response, I made an OIA request about my OIA request:

Please send me all information regarding my OIA that the Ministry replied to me on 4 September 2017.

Please exclude any information already sent to me in that reply.

Please include any information not already committed to writing such as verbal conversations and any thoughts any person had on the OIA that doesn’t appear in written material, particularly concerns about how the OIA was being handled/responded to.

The second response

The Ministry replied by mail, rather than electronically providing searchable documents – a common technique often designed to frustrate requesters who forget to specify how they want the information provided.

That 249? That’s the number of pages generated responding to my initial request.

I won’t go through every aspect of the Ministry’s treatment of my OIA request. That’s what Twitter’s for.

But here’s a summary…

This is a chart I’m dubbing the Paper Stack. It shows the number of pages of documents and email chains by day. Maybe this will become a regular publication of the Bryce’s Coalition to help improve agency responsiveness.

The black parts are redacted legal advice.

Days 0 to 7: ‘I don’t see anything to be withheld’

I make my request to the two Ministry managers, Peter Carr (Funding & Infrastructure team) and Helen White (Government Policy Statement team).

Things start off promisingly before the 20-day maximum clock even starts with Carr telling policy adviser Andrew de Montalk: “I expect we can release it all in full, but do test that assumption if you feel it is wrong in any particular regard.”

By day 7, De Montalk had tested his views with at least one other policy advisor and a legal advisor and prepared a draft memo recommending full release of every requested document. While the legal advice has been withheld as privileged, it’s highly likely to have supported release, otherwise De Montalk would presumably have noted this.

Days 8 to 17

Nothing happens. The ministry has forgotten that the Official Information Act requires agencies to respond “as soon as reasonably practical”.

Day 18

There’s a suggestion that the Government Policy Statement team should be consulted. Why this only happens on day 18 is unclear, particularly as the original request went to White.

De Montalk stands by his initial assessment: “I don’t see anything to be withheld”.

Days 19 to 20

Nothing happens. The deadline for the ministry to respond passes.

Day 21 to 22

Discussion about needing an extension. Deadline extended.

Legal advice is withheld, but likely concerns the unlawfulness of extending the deadline after the deadline has expired.

Days 23 to 26

The questioning and redactions begin.

There’s also some questioning of my analysis showing the road toll was increasing.

For example: “The analysis is simplistic …” and “To say we’ve got serious concerns is an understatement, both in relation to the methodologies used, the conclusions reached and some of the language/terminology utilised.”

The briefing to the then-minister will later say it is “unlikely to cause wide public comment”.

Six weeks later and the ministry is on Radio NZ saying the road toll is up and they have no idea how effective their interventions are.

Days 27 to 29

An email notes that Van der Lem has asked the State Services Commission about “possible probity issues” around a former employee requesting information.

The State Services Acting Deputy Commissioner of Integrity, Ethics and Standards advises, rightly and obviously, that there are no issues.

Another email noting that Ministry lawyers have agreed to provide “a list of robust legal options”. These options and the discussion around them have been withheld.

Another still, from van der Lem, observes: “Lots of drama on this OIA”.

De Montalk, the adviser who recommended full release and, for his sins, is tasked with administering the increasing farce: “This is the largest meeting room available at this time.”

Ten public officials are invited to discuss what should be a straightforward information request. The room’s capacity is six.

Data is withheld on the grounds that it was provided to the Ministry by the NZ Transport Agency, and to the NZ Transport Agency by councils, under an obligation of confidence.

Most of the data is public or has been in the past. The rest of it would be subject to request from NZ Transport Agency or councils individually.

There can be no obligation of confidence here, and suggesting that agencies can share non-personal information with each other and label it “confidential” to hide it from the public is somewhat sinister.

Manager Helen White and principal adviser David Eyre are proposing to withhold financial modelling that would show that the then-government was considering fuel tax increases because the minister is “actively considering tax options and potential 10-year funding ranges”.

The ombudsman has made multiple rulings on this: there is no right for ministers to consider options uninterrupted, only that they be afforded enough time to consider the advice so they can comment in an informed way if needed. Indeed, there is a big public interest in giving the public the opportunity to influence those decisions.

Days 30 to 31

The ministry briefs the minister. The minister’s private secretary replies “We have no comments on this OIA response”.

The briefing notes the ministry’s intention to provide the “Excel spreadsheets as locked spreadsheets”.

The briefing notes that the ministry is developing a communications plan including key messages (but fails to release this in my second request).

Day 32

De Montalk emails me to say the ministry’s response is available for collection, and maintains the professionalism he started and continued with throughout:

“Hope things are going good for you.”

At no point in all of this did any staff member refer to the Ombudsman’s guidelines, or even the Ministry’s own internal guidelines. (De Montalk can be perhaps excused because of how obvious it was that all the information should have been released.)

Similarly, there’s zero discussion of the public interest in releasing the information. If not for the release of the information, the ministry might still be saying the road toll’s trending down.

At least 50 people were involved in this request, 42 of those ministry staff.

Despite my request for details of any verbal conversations or thoughts staff had particularly about the treatment of the OIA request, and despite there being “lots of drama on this OIA”, not a single staff member raised a concern about the redactions or misuse of the OIA. Not a single discussion or thought.

Either this is true and at least a third of the Ministry of Transport are grossly unaware of the law, or information about concerns has been accidentally unreleased or purposefully hidden.

There’s a lot that’s rotten here, and sadly it’s not much different from what other researchers and journalists experience daily. The New Zealand Initiative looks forward to joining with other researchers and journalists in the Coalition to lift OIA performance by our agencies.


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