Opening the government -- the Official Information Act in New Zealand

Colin James for The Australian on the Official Information Act, 4 October 2006

The act has made the government much more open which keeps it more on its toes. Moreover, "free and frank advice" from officials to ministers seems still largely to be alive and well even though some frank disagreement now reaches the media thanks to the act.

But not all advice is fair game for the media. Highly sensitive advice and information is now often not committed to paper or email or anything discoverable or it is carefully coded.

And, says Nicola White, a senior research fellow at Victoria University's Institute of Policy Studies, some "seemingly sensible initiatives" do not go ahead because of "potential information consequences".

Nevertheless, White has concluded after an extensive study of the OIA which included many interviews with both "requesters" for and providers (or non-providers) of official information, the culture of government has changed "fundamentally". It is much more open and people expect it to be.

White has been on both sides of the fence, as an official adviser to Prime Minister Helen Clark, now an academic and shortly to join the Audit Office, an independent body answerable to Parliament and not the government -- and at present embroiled in a row with the governing Labour party over election spending rules.

In a brief summary of her work to the Australasian Study of Parliament Group's annual conference on September 29, White noted many criticisms of the act on both sides -- journalists, opposition politicians and pressure groups versus public servants. But generally the act has freed up a great deal of information and embedded the idea that government information is "our" (the public's) information, she says.

One problem is the sheer volume, which makes processing requests sometimes very difficult: "A simple search on a key term for a request produced 7000 hits," White says. That can complicate defining what material meets a request which in turn leads requesters to complain of "obfuscation and political gamesmanship" in decisions on what information to supply.

Critics also complain of delays -- 20 working days are allowed to process a request and in most cases the whole of that time is taken up. Information delayed is information denied, critics say.

And there are arguments over what is in or out under the rules. The act allows information to be refused on grounds of national security, trade or international relations interests, "maintenance of the law", commercial confidentiality and trade secrets, personal privacy, legal and parliamentary privilege, health and safety of the public, effective conduct of decision-making and "the administrative capacity of the organisation concerned to process a request".

An earlier study by a legal academic, Steven Price, reported requesters saying that time limits were ignored, that there were misuses of the grounds for withholding information, that consultation and transfer (to other departments) were used to delay information -- and that charges for processing, supposed to be "reasonable" under the act were set prohibitively high.

Requesters can appeal to the Ombudsman to overrule public servants who withhold information. An Ombudsman's ruling is in effect binding since it can be overturned only by a formal cabinet decision, which has never happened -- departments grin and bare it when the Ombudsman's office tells them to. But that delays the request, often beyond the point of use to a journalist or politician.

Public servants for their part complain about "fishing" expeditions that tie them up, often adding little value to what was already publicly available. And attempts to clarify what exactly was wanted sometimes were quoted in the media as delaying tactics. Sometimes OIA requests, coupled with parliamentary questions, are used to "snow a department in the hope it might 'drop the ball' or at least slow down on the substantive issue", public servants told White.

All of that will be familiar to those battling both sides of Australia's freedom of information procedures.

But there is another side to the coin.

First, the OIA covers not just the core government, but state-owned enterprises (except for commercially sensitive material), educational institutions and public hospitals. A sister act covers local government and a Privacy Act deals with information held about individuals.

Second, its presumption of openness has given rise to other legislation, including legislation covering government finances and forecasting and a current bill dealing with pre-trial disclosures in criminal trials.

Third, public servants publish a lot more of what they do and write. Departments and agencies routinely publish or put on their websites reports and research papers, including internal and external think-pieces. Ministers frequently include cabinet papers and background reports when a policy or initiative is announced -- and those sometimes include recommendations or comments at odds with the ministers' position.

Some departments include candid and controversial material in their published post-election briefings to incoming ministers. Treasurer Michael Cullen described the Treasury's recommendation of tax cuts after the 2005 election as an "ideological burp".

This openness, White reckons, has removed "a tranche of unprofessional or unfounded commentary É from the system". And several people told her that the OIA, combined with wider use of judicial review of decision-making, has "combined to drastically improve decision-making processes on all sorts of matters across the government".

Public servants are now wary about what they commit to paper or email but the sky does not appear to have fallen in as they feared 10 or 15 years ago and as some Australian public servants fear now.

In fact, some New Zealand departmental chief executives have argued that all relevant material that is within the act's rules should be posted on the department's website once a cabinet decision is made or after a certain period of time if a cabinet decision has not been made.

Journalists, politicians and pressure groups would then just wade through the material rather than having to go through an official to get it.

Are there pointers for Australia in the New Zealand experience? Maybe three.

One is that even after 25 years there is still tension, suspicion and in some cases serious misunderstanding between those seeking information and those required to supply it (or not).

Another is that New Zealand's law operates case by case and, given the volumes of material handled, systematic guidelines are now needed to reduce delays and inconsistencies.

A third is that open government does not necessarily impede the flow of advice from officials to ministers. Officials are by and large as free and frank as they were. But now some of that frankness turns up in the public domain. And the sky hasn't fallen in.