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Speaker: David Fisher: The OIA arms race

139 Responses

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  • Sacha, in reply to Idiot Savant,

    ask them if that is their final response, because legally they've responded to an OIA request and you can go straight to the Ombudsman.

    good tip

    Ak • Since May 2008 • 19688 posts Report Reply

  • mark taslov, in reply to nzlemming,

    Yep that's onus.

    Te Ika-a-Māui • Since Mar 2008 • 2281 posts Report Reply

  • Ian Dalziel,

    this parrot is dead!

    ...like a hole in a wall needs Pollyfilla.

    <cough> Polyfilla <cough>
    ;- )

    Christchurch • Since Dec 2006 • 7892 posts Report Reply

  • izogi, in reply to Idiot Savant,

    if you make a polite enquiry and a public servant fobs you off, ask them if that is their final response

    I know it doesn’t always work, especially with many of the situations described here, but if I just want something uncontroversial then I tend to just ask politely before anything else, and with no specific reference to the OIA. Often it’ll be back within a day or two of an email being flicked from the front desk info services of an agency around the most appropriate staff, without anyone even having considered putting it into a formal OIA workflow process and all-but-making-sure that I won’t see a response for 4 weeks as it sits in middle managers’ in-trays for a week at a time waiting for their signatures between other work. As others have noted the Act doesn’t state that a request has to explicitly state it’s under the OIA, so the clock still began when my initial request went in, and that date can still be applied with the rest of the OIA if they don’t seem to be playing nicely for who-knows-what reason.

    Given how intent some NZ agencies seem to be on crippling the process in recent years, I’m surprised we haven’t yet seen more implementation of the OIA’s S15 provisions, to allow charging for processing requests, as an informal deterrent. eg. In Australia (which apparently does also seem to require explicit requesting under their FOI Act for them to care about responding) I found Parks Victoria’s non-refundable $26.50 fee for submitting any Freedom of Information request, plus a possible further $19.90/hour of time for searching their documents, to be a depressingly effective deterrent to actually asking them for information. It’s probably mostly only a deterrent against poor people, though. Be wary of that type of thing appearing on the horizon in NZ. Given the rules that are already being bent or outright broken, I bet it could be seen as a possible tactic to put off some bloggers who might be seen as a “threat”.

    Wellington • Since Jan 2007 • 1139 posts Report Reply

  • Idiot Savant, in reply to izogi,

    I know it doesn’t always work, especially with many of the situations described here, but if I just want something uncontroversial then I tend to just ask politely before anything else, and with no specific reference to the OIA.

    Which works great for uncontroversial queries from uncontroversial people. But if you are media, or a successful requester, any request you make is seen as controversial regardless of content, so its got to be knives out from the start.

    "No Surprises" means that the Minister gets a cover sheet saying you're "politically active" when being "informed" (asked) about your request. It is simply not credible that this does not affect the decision-making process.

    Palmerston North • Since Nov 2006 • 1711 posts Report Reply

  • nzlemming, in reply to izogi,

    I’m surprised we haven’t yet seen more implementation of the OIA’s S15 provisions, to allow charging for processing requests, as an informal deterrent.

    They do. It's just not publicised very often. What tends to happen is they say "it's going to cost you this much", you refer it to the Obmudsman as unreasonable and the Ombudsman tells them not to be idiots and release the material immediately. This has happened to me and others regularly in dealing with NZTA and the former MED.

    If they say "it's going to cost this much to photocopy", I say "send me the electronic files, then. I don't need it in hard copy". In 2010, when NZTA was pushing the Kapiti RoNS along, they would find the material in hard copy (even if it meant printing it out first!), photocopy it, redact the photocopy, scan it as an image and send out PDFs of the images. Which meant I'd have to OCR and correct it myself. They did this after they realised that we were getting too much information from the metadata and that blacking out text on paper with a Sharpie didn't mean it couldn't be read later. Ah, those were the days...

    Waikanae • Since Nov 2006 • 2930 posts Report Reply

  • nzlemming, in reply to Idiot Savant,

    But if you are media, or a successful requester, any request you make is seen as controversial regardless of content, so its got to be knives out from the start.

    I was told by a source that anything with my name on it was flagged to the minister (Joyce) before they would begin to work on the response.

    [edit]

    “No Surprises” means that the Minister gets a cover sheet saying you’re “politically active” when being “informed”

    Wow. I have never seen one of those though I knew something like them must exist.

    Waikanae • Since Nov 2006 • 2930 posts Report Reply

  • Idiot Savant, in reply to nzlemming,

    Wow. I have never seen one of those though I knew something like them must exist.

    Try OIAing one of yours. It might be interesting.

    Palmerston North • Since Nov 2006 • 1711 posts Report Reply

  • Steve Barnes,

    Like I said...

    Surely the need for Ministers to be aware of the release potentially political damaging information is a no brainer? but we should also place a limit on the amount of time a Minister, or their representative can have to acknowledge such releases, because this will always be open to abuse. I would also hold that no Minister should be allowed to block any release unless it can be generally accepted that the information would be damaging to security of the country as a whole and not just a particular party or individual, neither should it be in breach of privacy or other human rights legislation.

    Not worth considering?.

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • Idiot Savant, in reply to Steve Barnes,

    Ministers are already subject to legal time limits, and to laws limiting their ability to withhold information. They routinely ignore both.

    Palmerston North • Since Nov 2006 • 1711 posts Report Reply

  • mark taslov,

    this parrot lives!

    Yes Steve, certainly worth considering. even If it only puts the wind up Herr Dunne enough to distract him from his confounded smartphone tapping for just a couple of minutes each day, it would produce more efficient Ministers and a better shot for the unwashed.

    Correct me if I’m wrong but I’m assuming the implication with your suggestion is that if the Minister were to fail to acknowledge the request in time, the OIA request would simply proceed despite their inactivity?

    Te Ika-a-Māui • Since Mar 2008 • 2281 posts Report Reply

  • Matthew Hooton, in reply to nzlemming,

    I was also told my an MBIE source the same - that every contact I have with the (mega)ministry had to be notified to beehive. (I assume this doesn't mean run of the mill Companies Office stuff)

    Auckland • Since Aug 2007 • 194 posts Report Reply

  • Stephen R, in reply to nzlemming,

    they would find the material in hard copy (even if it meant printing it out first!), photocopy it, redact the photocopy, scan it as an image and send out PDFs of the images. Which meant I'd have to OCR and correct it myself. They did this after they realised that we were getting too much information from the metadata and that blacking out text on paper with a Sharpie didn't mean it couldn't be read later. Ah, those were the days...

    They also do this because of episodes like someone trying to black out an email address in a pdf and failing because the email address was still in the file, just drawn with a black mark over the top. Most people doing these things are smart enough to know that's possible, and not well trained enough to know exactly how to make sure that there are no traces of the material they want to censor still in the document.

    Printing, removing, and scanning produces an air gap where you can be reasonably sure that there isn't a track-changes in the background showing where all the interesting bits are.

    Given the amount of shit public servants can get for getting this stuff wrong, I don't really blame them for the overkill.

    Wellington • Since Jul 2009 • 259 posts Report Reply

  • A S, in reply to izogi,

    I had more of a rant in the other thread, but at the moment I feel that allowing the Ombudsman to invoice agencies for investigations into their OIA handling would go a significant way towards addressing this. On one hand it isolates the Ombudsman’s funding from Parliament, so that it can be funded for its actual workload to uphold the law against shoddy agency interpretations, instead of merely the amount of work the government chooses to restrict it to. It also creates a direct financial incentive for OIA compliance which CEOs will be forced to account for in front of Ministers, Treasury and the public.

    The Ombudsmen should definitely be better funded, I agree entirely on that, but I suspect that invoicing agencies for the cost of investigations wouldn't change much in terms of how the OIA intent is twisted/thwarted.

    I think that most of the worst transgressors against the OIA actually wouldn't mind if their agencies had to pay for the cost of Ombudsmen. Their primary concern is delaying or with-holding, and keeping out of the media spotlight. This makes investigations a good tool for delaying the release of info, sometimes for significant periods. Besides, from their perspective, more money for "ministerial servicing" is generally fairly easy to come by.

    Public accountability would be one mechanism to get compliance with the OIA, but so few actually pay any attention to those public accountability mechanisms that already exist that it would be pretty ineffectual anyway.

    The media could (and sometimes does) focus much more scrutiny on agencies that are breaching their obligations, but I suspect it doesn't really invoke much interest amongst the populace, so doesn't get much of a priority at the editorial level.

    I would say that in my honest opinion, the only way to fix the OIA is to introduce criminal sanctions that can be brought by the Ombudsmen against any minister, or senior public servant (CE's and levels 2 and 3 managers) involved in knowingly avoiding or ignoring their OIA legal obligations. I firmly believe doing this would see a huge change in the transparency of government operations, which would be a very good thing.

    Wellington • Since Nov 2007 • 269 posts Report Reply

  • Angela Hart, in reply to A S,

    Some sort of sanction is certainly needed. At present it's all one way, there are lots of (political) reasons to delay or refuse to provide information, and no penalty at all for failure to comply with the law. Is a law really a law if it cannot be enforced?

    Christchurch • Since Apr 2014 • 614 posts Report Reply

  • Bart Janssen,

    While the discussion here and David's post have rightly focused on the way our government is abusing the OIA act I do think there is a case to be made that the media have to bear some blame for the current state of the relationship.

    David describes a past that was open, where he could ask a direct question of the person who actually knew the answer and expect a full and helpful answer.

    But one reason those people are less inclined to answer now is that they simply don't trust the media to use that open honest answer fairly.

    Quite simply if Russell (and perhaps David) asks me a question I'll give him the fullest answer possible, if Mike Hosking asks the same question I'd choose my words very very carefully, expecting each possible sound bite or quote will be used in the worst possible way.

    It's about trust.

    Auckland • Since Nov 2006 • 4451 posts Report Reply

  • A S, in reply to Angela Hart,

    It is all one way, and it really shouldn't be. Just tacking an offence with a 2 year max sentence on it would introduce the spectre of transgressing ministers being kicked out of parliament for good, and it would spell career death for public servants too.

    Houses would be cleaned very quickly, and I think you would see every single final document produced by public servants everywhere publicly available in very short order. It might even help to weed some of the new crop of political public servants out and return us to more apolitical days, but that might be hoping for too much.

    Wellington • Since Nov 2007 • 269 posts Report Reply

  • Steve Barnes, in reply to mark taslov,

    if the Minister were to fail to acknowledge the request in time, the OIA request would simply proceed despite their inactivity?

    Yes. The only reason for informing the Minister is to avoid the "ambush" of Ministers who, like in the case of Helen Clark, are not actually hiding anything, just ignorant of the facts, rather than allowing them to be prepared to spin like a top..

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • Angela Hart, in reply to Bart Janssen,

    But one reason those people are less inclined to answer now is that they simply don't trust the media to use that open honest answer fairly.

    A valid point. I wish I could see something effective we could do to promote fair and honest reporting.

    Christchurch • Since Apr 2014 • 614 posts Report Reply

  • Steve Barnes, in reply to A S,

    I think that most of the worst transgressors against the OIA actually wouldn't mind if their agencies had to pay for the cost of Ombudsmen.

    The other side of that is the excuse that the OIA is expensive and should be curtailed.

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • Jan Rivers, in reply to giovanni tiso,

    Needs

    The kind of additional outsourcing the government appears to be planning using in the first place the Productivity Commission to investigate the 'market in social care' makes for an urgent need that not only government but those delivering government contracts should be funded (as well as mandated) to respond to OIA requests when using government funds to deliver public services.
    (Bill English has said that he wants to see public services outsourced to private actors using a kind of Dragon's Den approach to cut costs and to 'target' delivery. )

    I'm confused here though because I have heard it said that in the care home sector that there is no transparency between DHB funding and care home costs (allowing care homes to plead poverty & get off the hook on paying above minimum wages) even though DHB's are in the register of organisations expected to comply.

    Since Apr 2011 • 18 posts Report Reply

  • Steve Barnes, in reply to A S,

    Just tacking an offence with a 2 year max sentence on it would introduce the spectre of transgressing ministers being kicked out of parliament for good,

    And turkeys will vote to have Christmas and Thanksgiving twice a year.
    Now, where's my fucking pony?

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • Steve Barnes, in reply to Jan Rivers,

    there is no transparency between DHB funding and care home costs (allowing care homes to plead poverty & get off the hook on paying above minimum wages)

    Indeed and all the while the little shareholder runs gleefully giggling to the bank.
    Aged care is becoming the RTZ of the modern world.

    Peria • Since Dec 2006 • 5521 posts Report Reply

  • A S, in reply to Steve Barnes,

    The other side of that is the excuse that the OIA is expensive and should be curtailed.

    That is commonly claimed, but I don’t personally put much value on those statements. Heatlh and Safety is expensive too, more so than the OIA, but we don’t hear as many complaints about that.

    And turkeys will vote to have Christmas and Thanksgiving twice a year.

    Therein lies the rub. The turkeys in question will only do so if the public overwhelmingly demands that they do. That will only happen if the media collectively make OIA reform an enduring issue and create an environment where the status quo is untenable.

    Wellington • Since Nov 2007 • 269 posts Report Reply

  • nzlemming, in reply to Matthew Hooton,

    (I assume this doesn’t mean run of the mill Companies Office stuff)

    Joyce is so petty that nothing would surprise me.

    Waikanae • Since Nov 2006 • 2930 posts Report Reply

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