Speaker by Various Artists


David Fisher: The OIA arms race

by David Fisher

Good afternoon everyone. I am David Fisher, a reporter with the New Zealand Herald. I have worked as a journalist for 25 years, mainly in New Zealand but across a number of other countries.

I think there's some value before I start in placing a context around the current situation in relation to the media and the Official Information Act.

In doing so, it should be said each of the following allegations is denied.

At the moment, there is an inquiry underway into whether a blogger gained some advantage in receiving information from the SIS for political purposes. There are also allegations of preferential treatment over the OIA involving the same blogger and the former Justice Minister.

The police are also facing allegations of trying to cover up juked stats by burying an OIA. And a former Customs lawyer has said his organisation preferred to let requests languish in the Ombudsman's office than dealing with them.

In the 25 years I have worked as a journalist, there have never been so many questions, or such a loss of faith, all at once.

So, when thinking of the OIA, I had thought to start in happier times.

The difference between when I started 25 years ago and now is astounding when it comes to dealing with the public service. If I was writing a story then which in any way touched on the public's interaction with government, I would pick up the phone and ring an official. It really was that easy.

Receptionists would direct you to areas in departments, and staff there would know who would be best placed to fill the gaps in my knowledge. That’s what we in the media need - knowledge. We don't need quotes, although they inevitably come with the information. We need information, unvarnished, unspun and in a form in which we can understand what it actually means.

When I started, if I wanted to know about something, I would ring and ask. For example, if I want to know about how Kauri stumps were exported, I would ring up the equivalent of the MPI and ask how Kauri stumps get exported. I would then spend half an hour on the phone to the guy who oversaw the exporting – often the guy who was physically down at the docks – and I would be informed.

It seems a novel idea now. I can barely convey to you now what a wonderful feeling that is, to be a man with a question the public wants answering connecting with the public servant who has the information.

I remember exactly when I sent my first OIA request. It was in 1993 to a crown health enterprise, the structure which managed health at the time. I remember why I turned to the OIA. There was a communications manager there who was difficult, obstructive. He was risk averse, complicated in his evasiveness. He was, in short, ahead of his time. In a decade many others would be as he was then. And, in a decade, this communications manager would be working for a giant tobacco company.

When I returned from working in the UK, in 2002, I found the public service still open and accessible but there were many more communications managers than there had been previously.

Then, it was the flow of communication they tried to manage – not the content or nature or it.

And this is how it worked. I would ring up to find out about exportation of kauri stumps. Reception would ask where I was from, and hearing I was from the media, would put me onto the communications department. The comms person there would listen closely and then go away and work out who had the answers for me. When they found the right person, that person would ring me – or I would be given their number to ring them.

Interviews would happen, which they generally do not now, and they would typically be about the most mundane matters. How does government work? Explain the machinery to me? And what came out the end?

It was process stuff – because, basically, that's what we do. We find out how the world works, and we explain it to our readers.

I would speak with those who were able to explain the machinery to me. Having taken that onboard, if it worked – then it worked. If it didn't, then it didn't. There was very little spin. It was a lot more honest than what it became.

It was, when you think about it, the OIA in action. My questions were verbal requests and the responses were the official information coming back.

The shift really began after the 2005 election, when Helen Clark's third term threatened to get away from her. I believe what happened then perverted all that has come since, when it comes to media and the public service.

The "no surprises" policy had been a feature of coalition agreements since 1996, and part of the SOE model.

It did what it said on the box – meant there would be no surprises for the government. Initially, it was a safety valve put into an agreement – a chance for someone to ask, is it a good idea to sell half of Transpower without telling the Prime Minister. Big things. Really big.

But before long, it crept out of SOEs and political agreements and spread its grip through the public service.

Ministers realised they had a device through which they could reduce the surprises they suffered. And, as it went on, the surprises ministers no longer wanted to experience became greater in number and smaller in significance.

Increasingly, it placed on the public service a political imperative which it had never had to shoulder. It had to think about what it might be that would surprise a minister. Decisions were made with the minister's discomfort in mind. Decisions were being made which were political in nature.

The answer to the question "what would surprise a minister" is pretty much anything. Damned journalists, you never know what they're going to do with information. Best not to give them any.

Interviews became fewer. Comms staff became distant and difficult.

Suddenly, to get information about how kauri stumps were exported, I went from ringing and asking and interviewing to ringing and then being told to put my request in writing.

The email would zip off and I would sit and wait. I know now, from the sources I have developed inside your agencies, that people would look at those questions and wonder what I was really after. A day later, I would get an email back answering my questions in the most unhelpful way you might imagine. They are cowardly answers, with a flinch in every sentence, as if they might be surrending the nugget I was really after – apparently the tool I can use to undo the machinery of government and bring it all crashing down.

What I would be sent would be lines to fill a hole. There's an impression among some that we need "talent", or lines in a story – like a hole in a wall needs Pollyfilla. The “lines” would arrive at 5pm, as the person who sent it to me ran out the door.

Such idiocy.

Now, the interviews are gone. We speak to public servants when they have something really good to boast about, or really bad to apologise for. There is no in between. We meet only at weddings and funerals, and that's no way to build a relationship.

The rest of the time, we don't really know what the other party is doing. We still need information, so we find other ways to get it.

Increasingly, as interviews fell away, we would send OIA requests. The less you spoke to us, the more we asked for. When civility was gone, we turned to the law and expected that to give us the answers we needed. I send more than a hundred every year.

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. It astonishes me that any minister would think they have any business reviewing OIAs before they get sent out.

Before long, it seemed nobody wanted to surprise the minister. I've been told of officials deciding to remove surprising material before it went to the Beehive.

I know of ministers who have received the results of mundane requests, going through the “sign off” process but sending the OIA late because they are hunched over the response searching for "what that bastard Fisher is really after".

Where does that leave us?

In a dark place. I have a fairly kinetic relationship with many in the public service, largely because of the type of story I do. I was concerned I had a view which was too dark, to harsh, so I canvassed widely among colleagues before coming here. I was wrong.

There are far darker, grimmer views out there than mine. Simply, we don't trust you. By commission or ommission, we think many of those who handle our OIA requests don't have the public interest at heart. We don't trust the responses we get.

Of course, we may be completely wrong. We may have made a terrible mistake. But how would we know otherwise? You don't talk to us anymore. You're too scared to. Caught between the Beehive and the media, you don't know which to face.

Or at least, that's the impression we have.

And again, we might be completely wrong.

The publication of Dirty Politics told us much of what we thought we knew. The examples in there are from ministerial offices – but they are so familiar to what we experience from government departments.

I spoke with a public service staff member in the four months before the election to ask after an OIA. She said to me "I'm really sorry, you're not getting as much as you normally would because the election is really close."

I have had OIAs stalled in the run up to the election. If anything, they are meant to come faster. But the two months leading into the election were a drought. Since September 20, it's been chucking it down. Right now, long-delayed OIAs are turning up on a daily basis.

Or they are not. A colleague of mine, came to see me yesterday. "Have you given your talk yet?" he wanted to know. "I've got to get this off my chest."

There was a report he had sought which existed in a "draft" form until the minister's signature made it final. The OIA was filed months ago, the delaying tactics used to push it off. The response sent to the reporter gave an express written assurance that, when it was signed off, it would be released.

The election came and went. The reporter has chased it up, only to be told there will be a "general dump" of information in a few weeks or a month or so. The report will be released then, among that material, buried in a mass of information.

If you think about how that happened, it can be matched up with the law. The delay for another 20 working days, the extension for consultation, then the indefinite put-off because the information is going to be released publicly.

But it's not the spirit of the law.

The "general dump", or the soon-to-be-released-publicly, is a good example of what we see as evasions, and how we develop work-arounds. Again, I say these are what we as media see. The public service might see it differently.

The general dump started to emerge a few years ago. They push off release of information outside the timeliness of the news. Rather than talking about an issue within the time frame in which the event is happening, it gets shunted out into the future where it is less relevant. It comes, usually, late in the day, often late in the week. Thousands of pages of material dumped online. Always dumped in a form that cannot be text-searched.

Now, there may be a perception among those who handle these things that it's a good way to bury bad news. That's what we think you're doing. The number of people who will trawl through documentation looking for that single line, or match facts over long timelines, is relatively few.

It turns into a bizarre arms race.

We now use amazing analytical tools. They will take scanned PDFs and turn them into a searchable format. What's more, they will categorise, timeline, entity-match characters, dates and other players throughout the thousands and thousands of pages. It becomes a library of information which we revisit time and again.

The Ministry of Business Innovation and Employment has gifted me such a tool with the SkyCity dump. When I got a tip a few weeks back that the SkyCity contract had changed, I could search every document publicly released and build a timeline of every reference which had been made to identify the change.

The other workarounds we are turning to are much worse than technology-enabled journalism. Sources have always been a key part of what I do, what journalists do. They are more important than ever now. I find myself talking to people about taking photographs of documents with their iPhones, sending me pictures of papers so I know what exists when I'm asking for it. I'm often less interested in getting what I've already got than I am in seeing what gets withheld.

I talk to public servants about copying papers, getting thumbdrives onto work systems, uploading files onto cloud servers – and how to do it without getting caught.

When I turned to my colleagues about this, I asked a range of questions, but there are three which really matter, because they are based on the three guiding principles of the legislation.

Does the way the public service handles your requests achieve the following:

a) Does it enable more effective participation by the public in the making and administration of laws and policies?


b) promote the accountability of Ministers of the Crown and officials?


c) enhance respect for the law and promote the good government of New Zealand?


A very experienced political journalist told me:

"The whole culture of the Wellington public service towards the OIA is governed by two things - the need not to embarrass your minister or your department (putting your chances of promotion or even your job at risk ) and the need to uphold the law, which public servants are more conscious of than you might think. The result is that public servants block requests for as long as they can and delete as much as they can using whatever section of the OIA that they can."

I'll tell you an exception, or an example of doing it right. It is not an exception which governs the entire agency, because there's always headquarters. There are about 9000 uniformed police staff. They are all in a position where their general orders mean they are able to respond to questions from the media on issues in which they are involved.

Police comms staff can be difficult like any other government department - although I personally think they are better.

But with so many public-facing staff, there is an acceptance staff will speak. Trying to stop them all from speaking on matters in which they are involved would be like trying to catch rain drops.

The best advertisement the police have is a constable or sergeant telling the public what they did for a living that day.

It's openness, honesty and having the courage to have back your staff on the job.

It's not always possible when the Beehive comes calling.

It's 2014 – 30 years since the OIA began working in practice, 32 years since it was passed.

There is so much that we ask for which is standard, it's hard to understand why it is not classified as people go.

Surely after 30 years of dealing with largely the same type of information, it should be known what can be withheld and what can be released.

There should be no surprises, for anyone.


This guest post is based on a speech given by David Fisher to an audience of public officials in Wellington on October 15. Thanks to David and his employer, the New Zealand Herald, for permission to use it here.

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