Speaker: David Fisher: The OIA arms race
137 Responses
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While I sympathise with the author, a mirror might have been handy for him. The insincerity and distrust has been earned on a two way street and much of paranoia in government and business is of the once bitten twice shy variety the fault for which can squarely be laid at the door of journalists.
We live in age of low-cost, low information yellow journalism, when comms staff are justified in suspecting journalists are not really looking for how many Kauri stumps are exported but rather sifting for a gotcha story that'll generate a headline for that afternoon's website masthead of their paper. A semantic difference in what the minister says vs what the department reveals, or a revelation that minister has allowed his ministry to get on the job and is "exposed" as "incompetent" because he or she is unaware of some aspect of their departments work will be the story - not whether or not the Kauri stump export figures tell the reporter anything interesting. That story will be later, if ever.
One of the reasons Key and government were able to ride out the Dirty Politics revelations is because the public is nowadays inured to screaming red-top scandal headlines. Where once six-inch type was reserved for declarations of war and great disasters, now it rolled out week after week because the mayor has a mistress. Having cried wolf to often and to long on nothing much, the media can no longer convince a sceptical, low information public that a real scandal is important.
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Idiot Savant, in reply to
I don't think fears of lazy "gotcha" journalism in any way justify this sort of erosion of our democracy, and any public servant who thinks it does should resign. They are accountable to us. Anyone afraid of that has no place in the New Zealand public service.
If they are afraid of the media getting the wrong end of the stick, then the answer is to provide more information so that they don't. Defensive secrecy simply means that journalists have to draw their conclusions froma smaller data-set, which encourages the very thing the public servants fear.
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Thanks David, I'm an ordinary citizen, not in the media and this piece helped me to understand what has happened over time and why my own experience with the OIA was what it was.
I don't trust them any more either. I was straight in my OIA requests, clear as to what I wanted but I got responses such as "no document can be found" and ultimately a claim that Needs Assessment and Service Co-ordination Agencies (NASCs) which are contracted to the Ministry of Health to gatekeep resources are not subject to the OIA.
http://www.health.govt.nz/our-work/disability-services/about-disability-support-services/needs-assessment-and-service-coordination-serviceThat claim is now the subject of an Ombudsman investigation, but the tactics were successful in preventing the release of information prior to the election. If I eventually obtain the information, the programme it relates to may have changed as it is currently under review.
The effect is to turn me off. Why should I bother trying to be involved in the way my country looks after its people when it is so difficult?
Government behaviour relating to the OIA is one aspect of several which are collectively eroding democracy in New Zealand. We wear a mask of democracy but the nebulous face beneath is something else.
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giovanni tiso, in reply to
a claim that Needs Assessment and Service Co-ordination Agencies (NASCs) which are contracted to the Ministry of Health to gatekeep resources are not subject to the OIA.
Do you have a link to your OIA request about this anywhere?
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My thanks to Russell, David & his employer for making this available.
Is it not a bit strange that the Herald hasn't made the transcript available themselves on what seems an important & newsworthy matter? -
Russell Brown, in reply to
My thanks to Russell, David & his employer for making this available.
Is it not a bit strange that the Herald hasn’t made the transcript available themselves on what seems an important & newsworthy matter?Tim Murphy was actually the first to retweet the link to yesterday's post, where I mentioned this speech, and I asked him if the Herald would run it, or whether I could. He kindly suggested we both could, so a shorter version may yet turn up on the Herald website.
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Lovely piece, David. As ever.
I'm in the odd position of having made OIA requests myself and having had OIA requests sent my way in my role on a school board.
We went out of our way to find all the information asked for in the time frame allowed, but it's not as straightforward as you might think to find all the information on any given question, especially when you're dealing with something as dispersed as a school.
In our case it took a couple of goes to get all the information wanted but I think we got there in the end.
I find the under-resourcing of the Ombudsman's Office to be as bad for our democracy as the under-resourcing of journalism. Both play a vital role in ensuring the public are informed: or rather, both should play a vital role.
Keep up the good work.
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Meanwhile, we can still get the message heard... (via Action Station)
Sign open letter on dirty politics
Royal Commission into Dirty Politics -
So, up until I left the public service a few months ago, I regularly used to phone people back who had made requests. It was simply easier and less time consuming - you could explore what they were trying to get at and help figure it out with them. It sounds like I was lucky to work in an organisation that truly assumed information should be public unless there was a good reason not to.
Fair to say this is anathema to the private sector - people who have joined the service from business treat OIA's like competitive espionage. They struggle with the idea that the product of public agencies is community property...
David has absolutely nailed this - fear entered the public service towards the end of the Clarke government. I can't put my finger on when the (incorrect) notion that OIA's had to be in writing took hold, but I think that timing sounds about right.
And the fact that senior public servants are very well paid nowadays causes an interesting dilemma: if you are a Deputy {Sec/Com/etc} in Wellington on $250-300k+, where else can you get a job if you screw your public sector reputation? Time was that resignation from the service would eventually lead to a pay rise...
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Apart from incessant OIA delays - sometimes even having simple questions automatically turned into OIAs "for the sake of process" - isn't it marvellous how certain government agencies and departments wait until the last business day before a major public holiday to release information and important decisions?
Excellent post, David.
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Angela Hart, in reply to
I made a series of OIA requests attempting to get at the information. I've copied the last two (which were to different Ministry people because my previous responses came from them) and the final response to dropbox, which you should be able to access via this link.
https://www.dropbox.com/sh/xqjdqsmq1lhclb7/AAAgE7UCzVSKV6XUF70EQCoSa?dl=0The format of these requests is different from the earlier ones because I realised they were not going to release the information. I can dropbox those too if you want.
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It should also be acknowledged that OIAs can be used in a vexatious way as well. Our school board had experience of this.
Vexatious in the sense that the motivation was not about finding out the information - which would have been readily available had the person simply asked for it.
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Idiot Savant, in reply to
It should also be acknowledged that OIAs can also be used in a vexatious way as well. Our school board had experience of this.
Truly vexatious requests can be refused. The barrier is rightly high because those in power tend to see inquiries by citizens or those they are in dispute with as inherently vexatious.
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A S,
Speaking as someone who has had long-term experience on the receiving end of OIA requests, things have definitely changed, and not for the better.
While much of the process remains the same, and any half-way competent official can readily identify and collect in one place all the information that relates to the request, the real changes have been in the way responses are signed out.
You're right that comms staff, and dedicated ministerial servicing teams are much less helpful and more likely to deem information to be 'out of scope' or that it should be with-held.
Partially, it is because they don't have to do the actual donkey work if an Ombudsmens complaint is lodged (which was always a useful tool to motivate junior colleagues to the do the job right the first time), but largely it does come down to not just Ministers but also CEs not wanting anything out there that can make them look bad, or cause bad press.
Another reason, and I suspect this doesn't apply to you, is that so many of the requests I have processed over the years were terribly written, and gave those very same people just the reasons they needed to refuse to supply information.
Of course, the very biggest reason that so many senior public servants and minsters ignore their legal duties, is that the sanction for not complying with the law is all too often less than the impact of supplying information as they are required to by law.
After all, what is being named in a forum no-one listens to (Parliament) compared to being splashed across the front pages of all the major daily papers and on the evening news. When you look at it from the perspective of a CE or minister, it really is a no-brainer.
If the media want to do anything useful to reform the OIA, they really should mount a concerted effort to give real teeth to the Act, by imposing real sanctions for those who abuse it.
Finally, as a former policy official, one of the very first things I was taught 20 odd years ago was that the media was not your friend and anything you said to the media would be mis-quoted and used against you. Sadly the actions of the media over those many years in looking only (or so it felt) at the negative when it came to the public service certainly did give some credence to that view point, and saw far too many promising things killed, while lauding stupid and failed thinking as things that should be advanced.
For me, the most worrying thing is that the treatment of OIAs is only an example of how diminished the public service ethos has become (particularly amongst public sector "leaders") over the last decade or so, particularly when it comes to giving unpopular advice to ministers
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We now use amazing analytical tools.
I would love to know what they are ;-)
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linger, in reply to
Can you give a rough estimate of what proportion of the OIAs made to your school board were vexatious?
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Idiot Savant, in reply to
Another reason, and I suspect this doesn't apply to you, is that so many of the requests I have processed over the years were terribly written, and gave those very same people just the reasons they needed to refuse to supply information.
Sure (and you only have to look at the average request to ACC lodged via FYI to see examples). But there's a legal duty to assist, and if a request is unclear, its a public servant's job to pick up the phone or put forehead to keyboard and seek clarification.
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A S, in reply to
Yep, I agree entirely. My point was that for those who ignored that legal duty, the structure of those requests gave them extra latitude to do so.
You also have to remember that in practice, your average public servant is not permitted to pick up the phone and call media, lobbyists, etc. to seek clarification.
You have to write up what you want clarity on, it then goes to the comms or ministerials team, possibly then onto the ministers office, who then ask the question, and who also often slant the answers to those questions as it comes back down the chain. OIA by Chinese whispers is the result and that just adds to the overall headaches.
Funnily enough, the majority of public servants want to do a good job, and believe that they are genuinely helping the public, but the tenor of leadership over the last decade feels distinctly at odds with why many of us originally went into that line of work.
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Idiot Savant, in reply to
Which gets us back to the central problem: too much interference by Ministers and their hacks in what should be a public service process.
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A S,
Indeed, but when your senior public service leaders seem to be increasingly indistinguishable from political hacks (in behavioural terms, if not in ideology), you have a real problem. That is the crux of the problem as I see it. The OIA issue is a symptom of a wider and deeper-rooted problem.
ETA. That isn’t to say that fixing the OIA isn’t a key mechanism to fix the deeper problem, but that is harder to do if you don’t identify the root cause.
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Thanks for this David. It's such an important issue, and you're in a position to give a big-picture summary of change over time. Valuable.
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I suspect part of the change is due to that way our public service has been remodeled and restructured to match private enterprise. The business model, complete with highly paid managers and complex layered structures is inwardly focused. The goal is to benefit the business/department/SOE and that has very little to do with serving the public.
I consider myself a public servant (albeit with a wider view of public then merely NZ) heck most of my salary derives from tax dollars. How could I consider myself anything else. But the Institute I work for considers itself a business, we don't work for the public, not even for the funding agencies, but instead we are focused tightly on serving the industries our work tries to benefit and that relationship is a strictly business one.
We are managed by professional managers with no interest or connection to the work we do, no interest in serving the public, only an interest in meeting their KPIs. Little wonder they see requests for information as at best a distraction and at worst as a threat. And their attitude is passed down the pyramid to those with actual knowledge.
All that makes your job harder and results in you resorting to OIAs which in turn are treated as if they are live hand grenades.
But to be fair, there is not much confidence in the media. That loss of confidence makes it easier to dismiss or distrust requests for help. When the media are more interested in the latest fad diet than the latest health science why would you bother helping them, I mean they are only interested in the story that sells the most.
TLDR No trust in either direction any more, but that's just business.
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Felix_felix, in reply to
Thanks Angela, I was about to say that seemed iffy. But I see that you've pointed this out in your final letter: Entities not in the OIA register are deemed to be holding Official Information if they act for/are contracted by entities that are in the register.
No way is the MoH able to push this off because the Needs Assessment and Service Co-ordination Agencies (NASCs) aren't OIA-able. Where they're holding OI, they are.
Not that you should need it, good luck.
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It’s a safe bet who the mystery sender is, and thankfully it’s not David Fisher. (HT Giovanni Tiso)
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Gradually, we began to suspect we were being screwed in this way as well. Ministers don't like being surprised by anything. OIA requests would be processed – then sent to the Beehive for sign off. I have the flow charts. I see the processes. They require OIAs which are being sent to the media to be sent to the minister for sign off.
This harks back to the Helen Clark/John Campbell interview, which was at the time described as an "Ambush".
The "No Surprises" expectation that followed came, I believe, directly from this.
The "Corngate" scandal came about by the release of Hagers book "Seeds of Distrust" the information contained in that book, even though damaging to Clark (it is quite possible she knew nothing about the GE modified corn), could have been made available to Hager without her knowledge under the act at the time so the opportunity of political embarrassment so close to the election was almost inevitable.
I still believe the actions of Campbell were, at least, a little disingenuous but hey, that's what "Sensationalist" journalism is all about, eh?
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.
I think this would go a long way in allowing the people of New Zealand to have some trust in its Government, however, I doubt if we will see anything along these lines under the current Dictatorship.
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