Saturday, April 1, 2023

Thomas Cranmer: Hipkins Struggles to Contain Official Information Act Scandal

Whilst it is being portrayed as a one-off innocent mistake by two hardworking and trustworthy civil servants, in truth it reveals a glimpse of the Machiavellian machinations of government.

Former Labour Minister Stuart Nash’s quick succession of missteps now threatens to snowball into something altogether larger and more serious for Prime Minister Hipkins.

The Prime Minister says the case of two staffers not flagging an email from Stuart Nash containing confidential Cabinet matters is more of a “cock-up” than a “conspiracy”.

The two staff members apologised on Thursday after it was revealed they were previously aware of an email sent by Nash to two donors in 2020 discussing Cabinet matters. The emergence of that email earlier this week led to Nash's sacking as a minister as it showed he breached Cabinet confidentiality.

The PMO said the staffers became aware of the email in 2021 as part of consultation with Nash’s office on an Official Information Act (OIA) request.

Senior Labour Minister Michael Wood has attempted to take the focus away from PMO staffers by stating that he didn't like staff being blamed “when these things happen”.

“The reality is here that Stuart Nash is the person who did wrong… He has lost his job,” Wood said.

“I'm a minister and I receive OIA requests multiple times per week. The responsibility is on me. I see them all. I sign them out. I'm responsible for what goes out.”

Wood acknowledged the staffers should have flagged the email when they became aware, but he said ultimately ministers are responsible.

“Something was passed on to the previous Prime Minister's office. Staff should have alerted the Prime Minister in that case and they didn't. But in the end, it comes back to the minister who's in charge of responding to that OIA. That was Stuart in this case.”

Wood is, however, being economical with the facts. OIA requests are typically dealt with by the media teams within each ministry or department. Ministers are kept updated on their status via their weekly briefing report and sign them out as Wood describes. However, particularly sensitive OIAs are elevated to the PMO for further scrutiny. This can result in further delays or redactions to the documents. This was clearly what happened with the Nash email.

The same is true of Written Parliamentary Questions - a very effective mechanism that allows the opposition parties to question relevant ministers on issues within their responsibility. Again, whilst the answers are prepared within the relevant ministry, sensitive answers are elevated to the PMO for final review where answers can be amended before being released.

Some issues are of such public interest that multiple OIAs are submitted by the members of the public, media and / or opposition political parties. There are a number of examples where ‘friendly’ requestors receive their response first, when other requestors with substantially the same OIA are told that further time is required to address the request. It allows the government to manage the flow of information becoming public, and by preferring some requestors over others, it allows them to influence the presentation of the information to the public.

Last year, as part of the Gannin Ormsby government contract investigation, an OIA request was made to Te Puni Kōkiri asking for the TPK funding documentation for an off-site that Ormsby was arranging. The documents were duly provided with redactions, mostly to remove references to individuals. Those redactions included anonymizing the individuals that would receive payment for appearing on two expert panels.

When an unredacted version of the relevant document was (legally) obtained it showed that one of the panelists was Minister Mahuta. When this fact was made public the Minister’s office needed to clarify that whilst the Minister was listed as a panelist she did not in fact appear on the day, nor receive payment. If she had received payment, it would have been a serious breach of the Cabinet Manual.

Whilst it is standard practice to redact the names of individuals, it’s questionable whether it was appropriate to redact the name of a Minister in these circumstances given that public interest should outweigh any privacy concerns. It’s also unclear whether anyone within Te Puni Kōkiri or the PMO checked whether the Minister did actually attend the event when they redacted her name. At that time government officials were obviously aware of the possibility that there was a serious breach of the Cabinet Manual and that fact was obscured from the public by the redaction.

Minister Mahuta confirmed that she first discussed with Chris Hipkins the possibility of asking the Public Service Commissioner to investigate the conduct of ministry officials with regard to government contracts awarded to her husband four days after the revelations that she was named in a document as a paid panelist. Nine days later the Minister publicly announced that the Public Service Commissioner had agreed to open an investigation.

In December, the Chief Ombudsman Peter Boshier announced that he was launching a new investigation into claims agencies were frustratingly slow in responding to requests for information.

“The OIA exists to promote transparency and accountability and to enable the public to participate in government decision-making. It requires agencies to make decisions on requests for information as soon as reasonably practicable.”

“I am worried delays are leading to the perception – especially among journalists – that the Official Information Act (OIA) is being used as a bureaucratic tool to stifle the flow of information. This is not in line with the principle of availability that is the foundation of this law.”

This review is scheduled to be completed by the end of the year.

Now, in light of this latest email scandal, the Chief Ombudsman has also reopened an investigation into former minister Stuart Nash.

Peter Boshier confirmed he has reopened his investigation into an OIA complaint about a decision by Nash.

“The original enquiry was discontinued in May last year in discussion with the complainant. The complainant has now asked me to reopen the case. I have recommenced my investigation,” Boshier said in a statement.

The Nash email omission really serves to highlight the role of the Prime Minister’s Office in managing difficult and sensitive OIA requests and Written Parliamentary Questions across ministries. Whilst it is being portrayed as a one-off innocent mistake by two hardworking and trustworthy civil servants, in truth it reveals a small glimpse of the Machiavellian machinations of government.

Thomas Cranmer, Lawyer with over 25 years experience in some of the world's biggest law firms. This article was published HERE

1 comment:

Anonymous said...

Where there's smoke there's fire. Guarav Sharma was sending smoke signals and was ridiculed by the media generally. Now we are witnessing the burning of Nash and let's see what else goes up in flames. Hint: it's a slow burner.