Time to place public interest at the heart of decision-making

Friday, 4 March 2022

OPINION: The Official Information Act (OIA) came into being in 1982, and allows the public to ask government or any public body for information.

Before the OIA, information held by the g​overnment was covered by the Official Secrets Act, presuming a need for withholding information and maintaining secrecy.

The OIA was designed to ensure that official information is made available to those who request it, and applies to all government departments, ministers and most of the now hundreds of government entities.

The New Zealand OIA allows us to ask for information about decisions made by government departments which can impact on us through implementation of policies made by them on our behalf.

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**

It was once assumed that official information belonged to the government. The OIA reframes that view – official information belongs to us; it ought to be made public unless there is a very good declared reason for secrecy.

Section 4 of the act states that its purpose is to “increase progressively the availability of official information to the people of New Zealand in order to enable their more effective participation in the making and administration of laws and policies”.

However, progressive increases in availability are not evident to those of us attempting to make use of it.

The recently announced rating of New Zealand as the world’s second most democratic country by the Economist Intelligence Unit (EIU,) as a result of improvement in the ‘’political participation’’ category, is jarringly at odds with the experiences of many journalists, researchers and information-seeking citizens in the last decade.

Journalists have reported, with increasing frequency, that requests for information are often subject to a variety of tactics to avoid responding within mandated time frames; indeed, the requested information is often withheld using a variety of tactics such as: redaction of content well beyond protection of privacy or commercially sensitive information; requests are deliberately misinterpreted; pages of data are provided without headings; documents are renamed so that they can be protected from disclosure under the act; meetings are recast as casual encounters to avoid appearing in ministerial diaries; requests are transferred at the last possible minute to other departments in order to introduce delay by restarting the OIA clock; spurious reasons for refusing to release information are common, as in the story of the never-was-data which the Ministry of Health wanted to declare “commercially sensitive”, despite the fact that the data didn’t actually exist, because the ministry wanted to avoid the embarrassment of being caught making things up.

For us and other advocates for better patient access to publicly funded healthcare, the OIA is the only way we have to source data required to inform our activities, motivated by concerns of inequitable access to colonoscopy within Southern District Health Board.

These concerns have been reiterated in three separate reviews of the endoscopy service there, and it has been shown that patients suffered harm, and some died, as a result of rationing colonoscopies.

Our own experiences in using the OIA reflect the same themes as those reported by journalists – obstruction, delay, refusal because the data were held in several electronic repositories and would require collation, refusal on grounds of volume of documents, refusal again even after refining the request, suggesting that we would need to be charged for the costs involved in providing the information requested, involvement of the Ombudsman on public interest grounds, eventual release of the information after almost a year, and receipt of 3500 pages of printed documents including many that were not relevant to the request made.

Furthermore, some decisions result in abandoning collection of any data in some contentious areas; recommended progress becomes impossible to trace. We conclude from these collective experiences that there is a culture of arrogance and contempt towards the act within the public service.

Sir Geoffrey Palmer, a former justice minister, wrote in 2007 that “We should retain the basic framework of the act because it is sound. However, the act needs some adjustment at the edges”.

However, by 2017 he had come to see that “that redrafting the whole act is essential if real progress is to be made in improving access to official information.”

With regard to the public service Palmer said, “The current state of the New Zealand public service is not satisfactory. The public service should not be seen as a tool of the government of the day used to justify policy decisions; rather, an independent service working for the good of the country as a whole.”

We agree. Forty years since its enactment it is clear the OIA is not fit for purpose, and is often subject to misuse and abuse by those with the power to do so. It has failed in its current form to provide the necessary protection of democratic process.

It is time for a complete reimagining of freedom of information, one that truly places ownership of information in the hands of the citizens, and which places the public interest at the heart of decision-making.

The role of the Ombudsman must be strengthened, so that he or she can compel compliance rather than merely recommend it.

And our public servants must be held to higher standards, which must reflect the nature of their roles – servants of the public.

Authors: Phil Bagshaw, general surgeon; Emeritus Professor Gil Barbezat; Associate Professor Brian Cox; Paula Goodman; Dave McKay, General Practitioner; Murray Pfeifer, general surgeon (Retired).

As a result of issues facing many New Zealanders with unmet healthcare needs, the authors have formed Access to Healthcare Advocates (AHANZ). AHANZ is a group of healthcare professionals and community members united in the purpose of advocating for better and equitable access to publicly provided healthcare services for all New Zealanders.