Comment: Freedom of Information laws around the world are, and will always be, under pressure. This is because they cut to the heart of political power: access to information and control over how it is shared with others. They affect people’s ability to participate in policy and law making, and how well we can hold government to account.
These laws often emerge from collapses in the legitimacy of government—in New Zealand’s case, the Official Information Act (OIA) was a reaction to the secrecy of Muldoon’s ‘Think Big’ infrastructure projects.
For most of the time, this pressure plays out in the tussle over individual requests for information: the timeliness of the response, the extent to which withholding grounds were applied properly, or whether it was inappropriately transferred to a minister.
But from time to time, the political part of the government, often egged on by the administrative part, elevates the matter and turns it into an overt attempt to limit people’s right to information (guaranteed by Article 19 of the International Covenant on Civil and Political Rights).
We’ve recently seen this in Australia with a government bill that would have weakened the Freedom of Information Act. The UK government has started anonymously spinning to the Financial Times that the country's Freedom of Information Act is not only aiding Chinese intelligence gathering, but that it costs too much, so the amount of time people can expect departments to search for information will be reduced.
And now the New Zealand government has said it is, behind closed doors, reviewing this country’s Official Information Act.
The existence of this review was not shared with the public through an act of openness—despite government agencies having a legal duty to "foster a culture of open government"—but because I was told about it and then revealed it to attendees at a recent parliamentary Forum on Democratic Resilience and Transparency. Newsroom followed up with an article with comment from the minister and the Ministry of Justice.
The government claims the review has been prompted by an increase in the numbers of reported OIA requests. It has commissioned a firm of consultants to research this and the costs to agencies of processing requests. Hopefully, the consultants will tease out the fact that the claimed 394 percent increase in requests over 10 years is because of better counting and reporting of work already being done by agencies.
New Zealand’s OIA does not require people to specify that they are making a request under the act for the duties on public authorities to kick in. This means that it can be difficult for agencies to know what to count as an OIA request and what is just responding to a public inquiry. Technically, a call to a department to ask, "What time does the Work & Income office open?" would count as a request under the law.
The advice given to agencies by the Public Service Commission is only to count requests for information when “it requires considered application of the provisions of the OIA”.
The evidence suggests agencies have been expanding what they count. The Ombudsman has said media inquiries to departments are OIA requests (unless they only ask for an opinion), so these will have been added to the tally on top of requests processed centrally.
Some agencies (Customs, Ministry for Social Development) are now counting requests from finance companies seeking information to track down debtors. The Police has been counting requests from insurance companies after traffic accidents and from people challenging speeding tickets by seeking speed camera images.
And then we have the effects of government cost-saving measures: cuts to public servant numbers mean that those departmental experts who may have informally answered an inquiry about a topic are no longer employed or have been required to log these inquiries as OIA requests.
An adversarial welfare system can also prompt people to seek information about operation of benefits processes. More secretive consultations of hand-picked stakeholders lead others to seek information that should be public.
But the minister’s comments to Newsroom about the review of the OIA were not limited to the costs of processing requests. He also indicated substantive parts of the act, the grounds for withholding information from the public, were also being scrutinised. Justice Minister Paul Goldsmith said he was concerned that “every different little element of communication has been included”. We should be deeply concerned by this as it indicates the government will seek to limit our access to the advice public servants provide to ministers, an area where New Zealand leads the world.
In Australia the media, civil society, and politicians successfully combined to stop the government’s bill, which was recently withdrawn from the Senate. In the UK, the News Media Association and the Society of Editors have written to the government expressing their concern about restricting the Freedom of Information Act.
In New Zealand, we have yet to see whether the Media Freedom Committee of the Newspaper Publishers’ Association will follow its UK counterparts and stand up for strengthening, not weakening, the OIA. This committee, non-governmental organisations, and politicians from all parties need to do so soon: the false narrative about a massive increase in requests needs to be debunked, and we should be talking about how we strengthen the OIA instead. Two Law Commission reviews have been largely ignored.
There are three key areas where New Zealand’s law lags behind: there is no public interest override for section 6 withholding grounds; there is no framework in the law to govern and encourage proactive publication of information; and we need a stronger regulatory system of an information commissioner and tribunal, with powers to issue binding orders, lay charges for obstruction, and build up a body of binding precedent.
The big picture is that our democracy is under pressure and it’s going to get worse unless we act intentionally. Our long-term survival will require short-term pain as we transition to a more sustainable and future-focused society. This will require governance that prioritises people’s wellbeing over an economy driven by extraction and excess profits.
Our politics will be more volatile during this period. We need to de-escalate things and seek agreement on the way forward. Not through false claims to de-politicise issues, but by empowering the public’s voice and participation in policy deliberations through stronger rights to the information held in our name.
This article was originally published on Newsroom.
Andrew Ecclestone is an adjunct research fellow in the School of Government at Te Herenga Waka—Victoria University of Wellington.