Politcised, problematic and outdated: Ex public servant calls for OIA overhaul

Thursday, 29 August 2019

Kurutia Seymour managed Official Information Act responses at ACC for almost 20 years, and provided advice to other agencies on how they set up their OIAs. As part of Stuff's Redacted project exploring the abuses of the act, he tells Nikki Macdonald why it needs an overhaul.

In all my years working with it, everybody had a really big commitment to the intent of the act, to make information available. What I found was the mechanics of it often became a problem. Towards the end of my time, where social media platforms became more and more obvious, and the turnarounds on those platforms are hideously quick, the act really did start to show its age.

Agencies, whilst trying really hard, would often be stuck within a process designed nearly 40 years previously, when the only thing electronic was when they used to turn on the lights. To me it was always indicative that the act needed a refresh, to be more reflective and also more responsive.

In the days of paper files, vast fishing expeditions used to be denied out of hand, because they were such an enormous amount of work. But with computerisation and with things being electronically available, that was no longer necessarily a fair response. So a lot of times now when people make those requests, it's legally difficult for an agency to say no. Because actually, if their processes are well-designed, they should be able to do this.

* Redacted - our official information problems and how to fix them

* Protect the public's right to know: cure the unhealthy Official Information Act

* Hide and Seek: How politicians seek to hide your information away**

They should actually get in front of this. They should be putting all of their processes online - everything their staff uses to make decisions. If all of the ways that you make decisions are available publicly for everybody to scrutinise, you are being held to account.

The Justice Ministry will report back on OIA submissions by September, so Justice Minister Andrew Little can decide whether to overhaul the act.

I haven't actually seen that kind of approach from many agencies yet. Most of them get a bit of a fortress mentality. There are whole bunch of people that are fearful that ministers might get caught in something. In the time that I've been working, I watched what had once been a part of parliamentary services - the people who were supporting ministers - become quite politicised.

Once upon a time, a new minister arrived with a very small cadre of people, who had gone through the election with him. And the vast majority of the rest of his staff was provided by parliamentary services. They understood the act, they understood how parliamentary services worked, what could and couldn't be done.

Then probably in around 2000 a lot of people began distrusting. You'd have one government come in and they would not be happy to pick up the senior public parliamentary services staff, because they'd seen them working in ministers' offices. So what they would do instead is bring people in as advisers. And their advice was always based on 'How do I protect my minister?'.

One of the things I think has been adversely affected by that has been the act, and its ability to be transparent. Every minister wants to know about every sensitive OIA that is going to the department. And that's OK. That's about a minister being aware of what's on their horizon.

What's not OK, is ministers telling people or agencies how to respond. Smart senior ministers didn't do that. They were always really careful. But some of the younger ministers, or their advisers - in trying to protect their ministers - would sometimes say: 'Want to see this; Want to know what you're going to say; Want to see the final draft'. Often I would say to them, 'Do you really want that set of information in your office? Because once it's in your office, you are subject to the OIA.'

I would sometimes sit with ministers and say 'Our response needs to go along these lines because…' You know, it's a really uncomfortable place, when you're having to sit there in front of a minister and say to them 'No, I'm not going to change it'. You never actually say that. I was never placed in a position where a minister instructed me what to do. But I never put one in a position where they would have to. I'm aware that other ministers have felt the need to do that.

Redacted: Why you aren't getting the information you're entitled to.

Some ministers' offices were a dream to deal with, so I think it's possible. But that is dependent on people and the way that they work, as opposed to being structural, which is what the act should supply, which is why the act has to change. Because you need that kind of continuity and consistency to apply across all areas.

People are starting to do things that they shouldn't do, which is have conversations in lieu of meetings. If you've made a decision, there should be a record of that decision.

You need to rework the act. It has to be put in a position where it can foot itself more effectively in a digital environment. Some of it is about onus on the agencies, making information publicly available.

I think agencies can be a bit conservative about how much information they release. From their perspective, it's easier to be conservative and redress that, rather than over-release and then you're stuck. But that leads to a circumstance where people are giving you as little as possible, as opposed to as much as necessary.

I hardly ever charged, because this stuff should be free. But I did seriously contemplate putting a little note at the bottom of a letter saying this is how many hours and how much money it cost us to produce this, that was in dark moments when I sat there and thought 'What the hell are these people trying to do?'.

But there is an element that people need to understand of agencies and how much they eat these costs. Our ministerial unit had seven staff, plus two private secretaries in the minister's office. And ACC is not a big agency in this space. But that's part of what the agencies should be doing.

You have to look at the act and make sure it is able to perform its basic function, which is about transparency, freedom of information, and access to information for the New Zealand public. I think we're at about four out of 10 on that scale. With the way the act is at the moment, it's archaic and designed for a different purpose.

When it was introduced in 1982 it was world-class, ground-breaking stuff. But those things can't be just left like that. You have to continue to keep it up to date, because the world changes around it. And that's probably my biggest criticism of the act, that we haven't done enough to keep it relevant.