Official Information Act review deferred because of justice ministry policy work overload
Tuesday, 16 March 2021
The promised review of the Official Information Act (OIA) is one of eight projects deferred by an overloaded Ministry of Justice policy team, documents show.
The papers show ministry officials recommended in September 2019 that the government review the law that governs Kiwis’ access to official information.
The officials noted a “problem with how the OIA is perceived as working” and recommended nine areas for review, including considering new enforcement tools and a new oversight role, such as an information commissioner.
The documents were released under the act by Justice Minister Kris Faafoi – two weeks outside the timeframe required by the law. No explanation was given for the delay.
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The 2019 advice said an effective official information law was vital to a functioning democracy and reviewing the 39-year-old law would provide “an opportunity to consider improving the openness, transparency and accessibility of government information”.
The review’s suggested scope also included:
rewriting the OIA to make it clearer and reinforce the starting principle that information should be made available;
clarifying who is subject to the OIA, including state-owned enterprises and parliamentary agencies
re-examining withholding grounds, especially the free and frank advice ground which protects officials’ advice to government, and rejections based on privacy or commercial sensitivity.
management of vexatious requests
Māori access to information
the relationship between the OIA and other laws, such as the Privacy and Public Records Acts
whether agencies should have to proactively release information.
Former justice minister Andrew Little told Stuff in July 2020 that the act would be reviewed. However, in December 2020, Justice Ministry officials asked new minister Faafoi about his policy priorities.
“The Justice Policy Group's constrained capacity is at the core of our need to heavily prioritise our work,” a briefing document said.
Somewhere in that prioritisation process, the OIA review moved from promise to “potential project” and it was not included in the policy work programme for 2021-2023.
Instead, it was listed as one of eight projects “paused or deferred until resources become available”. The other seven affected projects were redacted.
Asked what those projects were, Justice Ministry Deputy Secretary for Policy Rajesh Chhana provided a seven-line response that did not answer the question.
Asked why its policy team was so overloaded, Chhana said the ministry was responsible for 52 regulatory systems, involving 154 pieces of legislation.
“All our work is important and every day we need to make choices about where to best focus our time.”
Asked what the ministry was doing about its “constrained capacity”, Chhana failed to answer the question.
Faafoi said there was a significant workload in the justice portfolio, including relating to counter-terrorism laws and protections from incitement to hatred. The government had also made election commitments to ban gay conversion practices, repeal three strikes legislation, and investigate adoption and family law reform. He was likely to consider a potential review later in the parliamentary cycle.
Open government advocate Andrew Ecclestone was pleased the ministry’s OIA review advice had finally been released. However, he advocated calling in external reviewers, which would be more independent and would reduce the pressure on the ministry’s policy team.