Andrew Ecclestone
Wellington, February 28, 2022
It hardly needs saying to readers of Transparency Times but upholding high standards of integrity rests on our right to seek, receive and impart information.
This right is critical to ensuring public authorities, government ministers and private organisations know that any poor conduct is likely to be exposed to the public.
Sadly, this right is being undermined regularly by new legislation, introduced not just by the current government, but by previous governments too.
Internationally, the right to information can be found in the International Covenant on Civil and Political Rights (ICCPR). Locally, it is embodied in section 14 of the New Zealand Bill of Rights Act. It underpins both the official information legislation and the whistleblower protection law – key tools for information to flow in order to enable public participation and accountability.
Positive steps but with vulnerabilities
The current government has taken several positive steps over the last four years about access to information. These have focused on the proactive publication of information.
Some cabinet papers are now published 30 business days after they were considered. Ministers are publishing some of the briefings they’ve received from departments, and their ministerial diaries. Although they could be improved these are good measures. We should not lose sight of how advanced this is compared to almost all other countries.
But these initiatives are vulnerable to changes in political commitment because there is no law underpinning them. As a result, they can be suspended whenever ministers feel like it.
We saw this last August-November when the policy on publication of Cabinet papers was unceremoniously – and without announcement – suspended while we faced the outbreak of the Delta variant. Similarly, the flow of departments’ briefings to ministers being published on websites dried up. This happened while the government was developing policy and legislation on fundamental issues such as vaccine passes and mandates.
The New Zealand Council for Civil Liberties (NZCCL) has provided advice to Chris Hipkins the Minister responsible for open government, on how to address these vulnerabilities.
Retreats into secrecy
Worse however is that our right to information is seriously undermined by the all-too-frequent introduction of legislation that contains secrecy provisions.
These clauses are sometimes formulated as confidentiality provisions that apply to too much information, or that only permit disclosure in limited circumstances. They can mean requests for information made using the Official Information Act (OIA) have to be refused as being ‘contrary to the provisions of a specified enactment’ – to which no public interest test applies.
On other occasions, Bills have amended the definition of ‘official information’ in the OIA, in order to place certain kinds of information outside the scope of that Act, even though the organisation is still covered by it. The table published on the NZCCL website sets out some of the provisions introduced in the last four years. There are many more, enacted previously. Some of these date from an era when ideas around the balance between secrecy and openness were very different.
In each case, the department seems to think it has a ‘special case’ why the issue of disclosure or non-disclosure should not be dealt with under the OIA’s regime for weighing competing public interests. Often clauses seem to be intended to reassure people or organisations that required information will not be disclosed.
Some examples
In 2019, the Climate Change Response Act was amended to require the Climate Change Commission to keep secret all information disclosed to it by another government agency, the Environmental Protection Authority. Another amendment to the same Act prohibits the Emissions Trading Scheme auction monitor from disclosing information.
The Venture Capital Fund Act 2019 removes from the scope of the OIA any ‘investment vehicle’ created by the Fund.
A 2020 amendment to the Land Transport Management Act prohibits NZTA from publishing information acquired by the agency except in limited circumstances.
The Civil Aviation Bill both allows a Minister to make an order temporarily prohibiting disclosure of information about applications for cooperation on air services and prohibits the Civil Aviation Authority from publishing or disclosing information it has acquired, except in limited circumstances.
Given the very serious problems exposed over many years in our child protection agencies, the secrecy clauses in the Oversight of Oranga Tamariki Bill are deeply worrying. Clause 59 removes from the OIA all communications between the Ombudsman and child support agencies – including non-investigation communications and guidance – while clause 109 imposes a secrecy clause on all matters that come to the knowledge of the Young People’s Commission in the course of any inquiry.
In addition to the concerns people should have about the Data and Statistics Bill enabling sharing of personal data on a massive scale, The Bill sets up entire parallel access to information regime, outside the OIA, with the Government Statistician also determining who is eligible to access data.
Steps to gain information
How are we to know?
A basic question for readers: how are we to know about any integrity or performance issues if we have no right to the relevant information?
These clauses send several negative signals that we should pay attention to and act on:
The department introducing legislation with new secrecy provisions does not trust or understand how the OIA works. There is a broad range of reasons for withholding information in the OIA, and the fact that they have not been substantially amended since 1987 indicates not only that they have covered the concerns departments have but there is political consensus that they are adequate.
Even more significantly, secrecy clauses indicate that the government does not trust the Ombudsmen to make the right decision on disclosure or withholding if they receive a complaint about an OIA request being refused.
From the perspective of judging a government’s commitment to openness, these clauses convey a signal that no government would choose: that there is no policy coherence between its stated claims of wanting to be more open and transparent and the reality of its actions.
The NZCCL does not believe that this is a message that the government wishes to convey, but it is the signal that is being sent!
Need for changes
NZCCL believes one reason these clauses are being included in Bills is that the Ministry of Justice and Crown Law don’t think that restricting the OIA is a limitation on our right to information under the Bill of Rights Act. We have not seen a single compliance assessment that mentions this.
There need to be changed to procedures for all future proposals for secrecy clauses, and amendments to the OIA to tackle the existing ones. There is an opportunity here for the government to strengthen its credentials regarding openness. NZCCL has made suggestions for how to proceed on both issues in its briefing to Chris Hipkins.
The government is developing its fourth National Action Plan as a member of the Open Government Partnership. Commitments to work with civil society to strengthen proactive disclosure and tackle secrecy clauses should be prime candidates for inclusion by any government serious about demonstrating its values integrity through trust in our right to information.
Andrew Ecclestone is Deputy Chair, New Zealand Council for Civil Liberties and Senior Associate at the Institute for Governance and Policy Studies, Victoria University of Wellington. The above article appeared in Transparency Times of Transparency International, February 2022 Edition.
