'Delay is the killer' – why our OIA watchdog isn't working
Tuesday, 26 July 2022
In 2019, Stuff first published the Redacted series exploring the problems with the Official Information Act (OIA). Three years on, we’re revisiting the OIA to see what’s changed.
Delays and a soft-touch approach make the Ombudsman 'patchily effective' as an Official Information Act watchdog, critics say. Nikki Macdonald investigates the office’s successes and failures and asks, what are the alternatives?
In June 2021, I requested documents from the Corrections Department under the Official Information Act (OIA).
I can’t tell you what I asked for because – more than a year on – I still don’t have them.
The request was refused (late) on July 26, and four days later I complained to the only OIA appeals body – the Office of the Ombudsman.
Four months ticked by. On 25 November, I followed up. An investigator said he had just that day notified Corrections of an investigation.
Another three months later, Corrections said it was reconsidering its response, but was “constrained in our ability to consult” because of Covid-19. On April 11, it advised it was still consulting “as quickly as we can”.
Then silence. At the time of writing, I still had no resolution. And I’m far from alone.
While Chief Ombudsman Peter Boshier has promised a tougher line on government agencies failing to meet the 20-day OIA response deadline, almost half of OIA complaints to his own office take more than three months. Boshier gives his office an 8 out of 10 for performance, but fewer than half of complainants in 2020/21 gave the office a big tick of satisfaction.
Boshier argues the best way to streamline the OIA review process is for government departments to stop delaying the release of information. But maybe the law isn’t being followed because the system set up to police it isn’t working.
Delay is the killer
An appeal system only works if you can get a decision in a reasonable timeframe.
Despite calling for better OIA statistics from government agencies, the Ombudsman’s office only reports OIA complaint response times bundled up with Ombudsman Act complaints, which obscures the longer OIA waits.
In 2020/21, the office completed just over half (54%) of OIA complaints within three months. Almost a third (31%) took more than six months and 13% took more than a year.
In some cases, that might just be annoying. But in others, getting that information is make or break. Former Ombudsman Leo Donnelly has seen the process from both sides, in 32 years working for the Office of the Ombudsman, and the past four years working for people trying to get information. He has complaints that are well over a year old.
Delays have real consequences for people who believe they have been treated unfairly by regulators and need to know how that decision was made, Donnelly says.
“They need the information to be able to argue their case. They can't get it, and therefore they're out of business. They lose their licence; they can't operate.
“If the process takes too long, your ability to actually make use of that gets undermined. Delay is the killer, at every level. Delay in getting the decision in the first place, then delay in getting the review.”
In November 2021, Council of Civil Liberties chairman Thomas Beagle lodged an urgent complaint with the Ombudsman, after Covid-19 Response Minister Chris Hipkins refused his request for the policy papers underpinning the government’s decision to introduce vaccination passes.
After seven months with no resolution, the office then told him it was ditching the investigation, because Hipkins was no longer minister (the Covid-19 portfolio was passed to Ayesha Verrall). They later backtracked and apologised, but Beagle says the confusion raises questions about how the Ombudsman triages and processes complaints.
Beagle says the Ombudsman is “patchily effective' as an OIA watchdog.
“They do achieve results, but there are too many cases where it's either not happening through timely reasons or it's just not happening because they seem to want some sort of conciliatory response. Where it actually probably needs something a bit stronger.”
Boshier argues he prioritises complaints based on urgency and public interest, and the most important are dealt with quickly. He took just six weeks to investigate KiwiRail’s decision not to release a report after consultation with the minister “because I think in the political arena, timeliness is crucial”.
“If I know the public interest is – I’ve got to do this efficiently and quickly – I think I do.”
But that doesn’t help the average Kiwi who needs that information now for their business, or to challenge a decision to exclude their child from school.
Given agencies only get 20 working days to find and assess the relevant information, why does it take so long to reconsider that same information after a complaint?
Boshier says the review process is time-consuming, whether it’s assessing redactions word by word or weighing whether public interest should trump privacy or commercial sensitivity. Some complaints involve thousands of documents. And then you have to give the agency the chance to respond.
“With the OIA, it’s quite a balancing exercise and I get enmeshed in sometimes a plethora of documentation, and I’ve got to read every page, or my staff do…I want to do it as quickly as I can, but sometimes it is just impossible.”
However, Donnelly – after four years away from the office – believes the process could be quicker.
“My perception from the private sector is, actually things can be much faster and still meet natural justice and fairness.”
Asked if he has enough resources to do the job properly, Boshier says: “I think I do”.
Do we need a separate Information Commissioner?
When Donnelly started as an investigator in the Ombudsman’s official information team in 1985, the Official Information Act was just three years old.
Even way back then, the government wasn’t sure whether the Ombudsman’s office was the right body to handle complaints. Donnelly’s team of four used a separate filing system, in case the authorities decided to carve off the OIA responsibilities.
That was before other countries developed a specialised Information Commissioner model.
The trouble with the Ombudsman’s office is they also have myriad other responsibilities that have nothing to do with access to information. They range from monitoring prisons, health and disability services and Oranga Tamariki, to dealing with complaints alleging unfair behaviour in the public service. And then there were the 400 complaints about managed isolation and quarantine.
Boshier said the office’s record 2020/21 complaints tally was “frankly astonishing”. But it wasn’t official information complaints at fault, it was Ombudsman Act complaints, which increased by more than a third, to 3862.
So would a dedicated Information Commissioner work better?
A comparison of different European information oversight models by British organisation mySociety concluded 'specialist information commissioners are preferable to general ombudsmen”.
The 2012 Law Commission OIA review found an information commissioner was the “most robust and effective option” to oversee policy, operational support and performance review. But they recommended leaving the Ombudsman to deal with complaints.
New South Wales replaced ombudsman oversight with an information commissioner in 2010, on the basis it would raise the profile of official information and incentivise agencies to give it a higher priority. Their commissioner provides guidance and training to agencies and deals with complaints about access to information.
Open government advocate and former Ombudsman’s Office investigator, Andrew Ecclestone, says a separate Information Commissioner is preferable, as it “shifts power from government to an institution with the power to make and enforce binding decisions upholding people's legal right to information”.
“The ombudsman model by its nature leaves the power of the final decision with a government or council that can choose to ignore a recommendation, if they’re willing to ride out the political debate for doing so.'
Ecclestone also advocates adding a tribunal as an extra appeal step.
Donnelly says there’s no perfect oversight model, and adding a tribunal would only help if it was properly resourced. Just look at the delays at the Human Rights Review Tribunal.
The risk in having the Ombudsman deciding OIA complaints is they can get distracted by their other powers, Donnelly says. So rather than just focusing on getting the information the complainant needs, they might embark on an investigation into the agency’s culture, or obstructive behaviour.
“You’re wanting improved systems, but you’ve got to actually be looking at the individual complaints.”
What’s really needed is a deep review of the Official Information Act, Donnelly says.
“The OIA has done well for 40 years, but it's fundamentally a tool for a different age. Because information and how it's used has changed and that's got ahead of the rules.”
Boshier sees his dual roles as arbiter of both information and behaviour as a help rather than a hindrance.
“The Ombudsmen Act powers, which are very broad, in combination with the OIA, means I have quite a lot of agility and flexibility.”
However, in a 2019 submission on a potential OIA review, Boshier did support setting up an oversight body to handle things like training and guidance.
When the OIA was introduced, that role was initially filled by an Information Authority. Its responsibilities expired after five years, as it was assumed the law would then run itself. That didn’t happen, so the Ombudsman filled the void.
All bark and no bite?
Imagine if cops could only scold thieves and ask them nicely to please give that stuff back.
A fundamental element of any policing regime is enforcement. But the Ombudsman can only make recommendations, not binding orders, and there are no penalties for failing to comply.
In my Corrections complaint example, the agency can simply say it’s too busy to respond promptly, and nothing happens.
Adding a penalty regime was the most common reform recommendation in submissions about a potential OIA review. Ecclestone also supports creating OIA offences and giving the complaints body enforcement powers.
Even Public Service Minister Chris Hipkins has said the act needs more teeth.
Boshier’s 2019 submission also suggested that introducing offences such as failing to include known information, intentionally providing misleading records or concealing or destroying records “would send a strong signal that people cannot wilfully interfere with the lawful operation of the OIA, with impunity”.
However, he appears to have changed his mind.
“The problem with penalties is enforcement. I've been a judge and sometimes penalties don’t produce much result at all…I don't particularly want to get into prosecuting and enforcing.”
He now says he would prefer better accountability measures for public service chief executives and ministers, such as more detailed statistics about OIA compliance.
The 2020 Public Service Act requires chief executives to “foster a culture of open government”. Asked how this is measured, Public Service Commissioner Peter Hughes says transparency is tracked, by the number of OIA responses published online, OIA compliance statistics and trust and confidence surveys.
“I think we have a good record…But I’m always up for doing more, and we are,” Hughes says.
Boshier says he’s written to 165 core agencies and ministers to signal a tougher approach on delays. While he previously considered it case closed when the information was eventually delivered, if the delay was a legal breach, he will now report it as such.
“That's a major, major change from what my policy has been.”
Both Boshier and Donnelly say the Ombudsman’s office is less toothless than it might appear. Boshier says he’s only once had a recommendation ignored, when Christchurch City Council refused to release costings for its digital touch wall. When Boshier wrote to the solicitor-general to ask for a prosecution, the information was magically released.
Donnelly says in his 32 years with the office, OIA offenders fell into three camps. About 70% related to lack of training and education. Another 20-25% knew what they should have been doing, but didn’t want to do it, possibly because of pressure from someone senior or someone in a minister’s office. The hope was that training and guidelines could help that segment push back.
Then there were “that top 5-10% who don’t care”.
“The political advisers or the PR people – they are only concerned with a particular outcome, but generally they have the power, so they have a disproportionate influence.”
Donnelly still believes the best way to fix OIA problems is a full review of the law, similar to what was done with the Privacy Act.
“The principle of availability and the purposes are sound, but the legislation is now a horse and cart on a Formula One racetrack. It's well-intentioned, but in truth it's a mechanism out of time.”
In 2019, Stuff first published the Redacted series exploring the problems with the Official Information Act (OIA). Three years on, we’re revisiting the OIA to see what’s changed.