This is the upshot of an investigation by the Chief Ombudsman’s Office into the performance of government departments in releasing public information under the Official Information Act (OIA). The Chief Ombudsman, Peter Boshier, found that although there are some things to celebrate about how agencies are fulfilling their obligations under the OIA, there are also very concerning ways information is being illegally buried or constrained.
Boshier’s report, titled “Ready or Not”, says public sector bosses are failing to ensure their own agencies follow the law when it comes to allowing the public and media to scrutinise what they are doing. Bureaucracies are essentially abusing the OIA by keeping public information secret, or at least delaying its release, and manipulating the process to suit authorities and politicians.
The report examined the compliance of 12 government agencies and found breaches of the law were common. The Ombudsman said the practices of some agencies had “little or nothing to do with the law itself”.
He was highly critical of the time it takes government agencies to deliver information that should be public. The routine wait of 20 working days for information to be supplied is unnecessarily long, and the processes are overly-complicated. In fact, an earlier report showed that 31 government departments have average response times that exceed the 20 day limit.
Part of the problem identified by Boshier is that agencies have not invested in adequate record keeping and information management. Many don’t have proper OIA training for the relevant staff who deal with the requests.
Here’s a summary from the Ombudsman about the problems: “I am growing increasingly concerned about the experiences journalists are reporting and the apparent dismissal by some agency media teams of the OIA legislation which underpins their work. In fact, the processes adopted by the agencies have little or nothing to do with the law itself and I intend to consider this matter further.”
He says there is now growing mistrust and suspicion amongst journalists and others who need to use the OIA for their jobs.
The Nefarious role of government spin doctors
Government spin doctors get much of the blame for undermining transparency in the new report. Communications staff who work in the Beehive and government agencies are growing in numbers and power. And according to the report they appear to be flouting the law. The Ombudsman says government spin doctors need “a fundamental cultural change” in order to make politics more transparent.
Boshier found that many government media teams didn’t even seem to understand the law that they are charged with fulfilling. For example, Boshier says: “There appears to be a widespread misapprehension that many media information requests don’t fall under the OIA, and that applying the law is difficult and complicated. These perceptions are false.”
For example, his investigation found “multiple examples of media teams” breaching the section of the law which requires a reason to be given when declining OIA requests. Boshier says: “Media teams are failing to give journalists a reason when they refuse to provide information or inform them of their right to complain to me.”
According to the report, Beehive staff are also playing a particularly problematic role in stifling the provision of information that is given by the different government agencies. Reporting on the Ombudsman’s investigation, Herald journalist David Fisher says: “It identified occasions in which ministerial officials tried to limit the scope of information released or tried to change an agency’s decision about what was to be released.”
Furthermore, Boshier is concerned that government departments are delaying the release of information and giving Government ministers three to five days of advance warning that such information is going out. According to Boshier the “no surprises” policy is being abused, and generally ministers should only be given the information at the same time that it is released or, at most, the day before.
The Solution is more accountability for public sector CEOs
Although government communications staff are undermining transparency in the way they deal with OIA requests, there’s an increasing call for bosses of each agency to be held accountable for their operations – or even with the Public Service Commission, which oversees all the agencies. As Boshier points out, in terms of the OIA, “There is a lack of appreciation of leadership of how fundamentally important this act is.”
Political commentator Liam Hehir argued yesterday: “The simple solution is to hold public sector CEOs personally accountable for their agencies in the same way that company directors are. If they aren’t proactively ensuring compliance then they should be personally fined.”
The Chief Ombudsman hasn’t directly put forward such a controversial solution himself, but he is pointing the finger at the public service bosses as the ones that need to be held accountable for the OIA failings. In fact, Boshier has recommended that OIA metrics be included as part of the performance criteria of public service bosses’ annual reviews. Their salaries, bonuses, and continued employment should be predicated on the basis of performance objectives that include how well their agency is delivering information to the public. And Boshier has stressed that public sector bosses need to ensure that their organisations have the systems in place – and the resources – to adequately handle their OIA obligations.
With the average public sector boss earning $485,000 in 2020/21, this could be an effective way to bring about improvements. Docking the pay of those at the top of poorly performing agencies might see OIA requests suddenly get processed faster and with more openness.
Of course, the Public Service Commission is unlikely to be keen on such changes. The head of the PSC, Peter Hughes, has come out to suggest change is already occurring and the expectations for chief executives are already clear enough. And in terms of OIA compliance, he said yesterday: “We want to get it right, but where that is not happening, I want to know about it, and I will make sure it is fixed.” And he is already very positive about how his agencies are delivering in this regard, concluding earlier this month that the public sector is “performing well on its OIA obligations”.
Unfortunately, the Public Service Commission is also refusing to release the current performance objectives and assessments for its agency bosses.
Is Labour the most transparent government ever?
In the wake of this report, which suggests that there are some big problems in terms of core transparency in government agencies, the Public Services Minister Chris Hipkins has reiterated claims that his administration is better than any previous ones: “I think we’re more transparent than previous governments have been.”
The Prime Minister has also been questioned about the performance of OIA requests under her administration, and claims there is not such a problem, explaining that some requests for information from the media just get “lost in the post”.
Perhaps it’s time for the Prime Minister to take those transparency lapses a bit more seriously. She could start by insisting that government department bosses lift their game or face financial penalty.
Dr Bryce Edwards is a politics lecturer at Victoria University and director of Critical Politics, a project focused on researching New Zealand politics and society. This article was first published HERE