Action Point 4: Strengthen Transparency Legislation
The Official Information Act (OIA) is 42 years old. The legislation is in urgent need of reform to bring it into line with international best practice.
A more level playing field doesn’t just mean reducing the power of well-connected outside interests. It also means boosting the voices of the public, and those without vested commercial interests. In a modern open democracy, all citizens have the right to access information that shapes public policy-making and the ability to participate in the decisions that affect us all.
The Official Information Act (the OIA) has a crucial role to play in enhancing transparency and participation, since the law says its purpose includes making information available to the public to ‘enable their more effective participation in the making and administration of laws and policies’.
New lobbying regulations, including an online and publicly accessible register and a lobbying or integrity commission, would increase transparency and accountability around public policy-making. The OIA needs to be strengthened to support these measures and provide a ‘backstop’ as protection against those who will seek to circumvent any regulation of lobbying and conflicts of interests.
The OIA promotes transparency and public participation, and helps expose political and policy decisions to public scrutiny by making it possible for people in New Zealand to request official government information. Anyone can use the OIA to access information, including journalists, NGOs and researchers who use it in order to scrutinise decision making and hold decisionmakers to account.
The OIA has been widely criticised as ‘broken’ due to:
- Withholding grounds that are too broad and result in excessive deletions from released information.
- The fact that it does not apply to parliamentary institutions.
- Long delays by both government departments and the Ombudsmen.
- The ability of agencies to withhold information.
- The inability of the Ombudsmen to make binding orders that information should be disclosed, and to prosecute those who break the law means a new institution is needed to strengthen the operation of the law.
Only minor changes have been made to the OIA since it was enacted in 1982 and the legislation is no longer meeting international standards for best practice – not least because it does not regulate proactive disclosure of information. A major review is long overdue and has been promised by political parties but never achieved.
What we are asking for
- An additional part of the OIA (Part 3A) is needed to specify the types of information which need to be proactively released , subject to any justified withholding at the time the information is published (e.g. Cabinet papers, lists of ministerial briefings, government contracts).
- A public interest test needs to be added to Section 6 so that where the public interest in disclosure outweighs the need for confidentiality, the information is disclosed
- The OIA needs to be extended to cover the Officers of Parliament (Ombudsman, Auditor-General) and departments of parliament such as the Office of the Clerk and Office of the Speaker.
- Aotearoa New Zealand needs to shift to having an Information Commissioner to oversee the implementation of the OIA with powers to issue orders to enforce the legislation.
What these measures will achieve
Pro-actively publishing more information will create greater efficiency and transparency, by avoiding the delays and added costs of having to go through OIA processes.
Defining the classes of proactively published information to include external advice to government on policy issues would give the public much greater clarity about who is providing what advice to government and would make it clearer when decisions go against official advice.
The oversight of the OIA needs to sit with an officer who has the power to enforce the law and issue orders with the appropriate authority. Currently the oversight of the OIA sits with the Ombudsman who only has ‘persuasion and recommendation’ authority, and whose jurisdiction is limited in respect of government ministers.
For greater openness, transparency and accountability the OIA should be extended both to Officers of Parliament such as the Ombudsman and the Auditor-General, as well as to parliamentary offices, such as the Office of the Clerk and Office of the Speaker. Individual MPs with no ministerial responsibilities should remain exempt outside of the law as they are advocates on behalf of the public rather than the decision-makers on policies. (MPs who are government ministers are already subject to the OIA in relation to their ministerial roles.)
Why action is needed
The Official Information Act (OIA) is 42 years old. The legislation is in urgent need of reform to bring it into line with international best practice.
who leaked confidential cabinet information and then attempted to cover it up by withholding emails related to the leaked information, despite an Official Information Act (OIA) request. The Ombudsman found that Nash breached the OIA by improperly withholding emails in which he discussed confidential Cabinet discussions with two of his political donors.
The investigation found that:
- Government ministers frequently interfere to delay OIA responses
- Details are often unjustifiably redacted (deleted)
- Information is often released well beyond the expected 20 day response time
- Complaints to the Ombudsman’s Office can take months to resolve.
An update by Stuff in 2022 found the situation had only become worse.
In 2023 National committed to review the Official Information Act if elected and the Act Party called for OIA reform, yet still nothing has happened.
