HOW MINISTERIAL ADVISERS THWART THE OFFICIAL INFORMATION ACT
By Richard Harman (author)
The Chief Ombudsman’s report into the operation of the Official Information Act is a revealing insight into the way the current Government keeps a tight grip on the face it presents to the public.
Dame Bev Wakem’s first conclusion will not surprise many people who make OIA requests from Ministers.
She found that government agencies were receiving mixed messages from Ministers “as to their expectations in terms of compliance with the OIA and more generally with the promotion of openness and accountability and enhanced public engagement.”
She said this had enabled doubt and suspicion to grow amongst the public as to whether their requests for access to official information would be treated appropriately and in accordance with the law by Ministers and their agencies.
“It is important that this is corrected,” she said.
But the problem goes further than just Ministers’ offices.
She said over 40% of the current and former government workers who responded to her survey said they did not know whether their chief executive or senior managers had a ‘pro-disclosure’ attitude towards the release of information.
“While many believed that the internal culture of openness and access to information had improved within their agency, there was a distinct lack of bold, visible messaging by agencies’ senior leaders to their staff,” she said.
“I also found many agencies did not have basic information on their websites as to how the public could make a request and the types of information they can ask for.”
She did find some positive things happening within the public sector.
Many agencies were routinely publishing a lot of their corporate information, statistics and data voluntarily, although this was quite variable.
“Some agencies were deliberately choosing to provide more information to requesters than had been asked for.
“A number of agencies were publishing their responses to OIA requests on their website so that others could also read them.
“This was primarily done to provide the requester (and the public) with context and prevent misunderstanding or misinterpretation of the information and/or the agency’s activities.
“These steps were often taken on the advice of the ministerial/political advisor.”
But not all the interventions of Ministerial advisors were so benign and as a consequence the Ombudsman is now going to start monitoring the way they handle OIA requests.
“I found evidence that suggested a small number of ministerial officials were attempting to limit the scope of requests for official information or change an agency’s proposed decision for unwarranted reasons.” she said.
“I have alerted the Prime Minister’s office to this type of engagement occurring, and have received an assurance that all Ministers and their staff are reminded regularly of their obligations under the OIA.
“While I cannot investigate the actions of ministerial/political advisors under the OA, I have strengthened my Office’s investigation processes to ensure that such instances are identified and reported and my Office intends to develop a model protocol for all agencies that will govern their consultations and briefings on OIA requests.
“Its application in practice will be monitored and reported on publicly by my Office.”
But Ms Wakem, who last week described journalists as often behaving like Rottweilers on heat when they sought information has also been critical of some actions of requesters.
“Officials in agencies reported that they have experienced what they consider to be unfair attacks and inappropriate, misleading reporting by media after responses and official information have been provided,” she said.
“As a result, there was a general perception that many media requests are not driven by a desire to inform the public properly on the activities of the government but rather on obtaining a ‘gotcha’ headline and sensationalising information. “
So, she said, agencies had become extremely careful as to how the information should be released, with great consideration often being given as what additional information should be included to provide context and to enable understanding and informed reporting.
Perhaps the most revealing part of her report deals with the activities of Ministerial advisers, generally young people, often members of the National Party, who have varying degrees of influence within both their offices and over the departments their Ministers preside over.
“Ministers now have ministerial/political advisors, whose role is focused on serving the particular Minister and their priorities and agenda,” she said.
“The Cabinet Manual requires agencies to ‘be guided by a “no surprises” principle’ when briefing their Minister on their operations.”
The consequence of this was that departments were often advising Ministerial advisers of OIA requests.
“While many requesters find this ability of chief executives to consult their Minister on proposed decisions to be unpalatable, I do not think it is unreasonable for a Minister to want (and expect) to be made aware of requests that could result in them having to deal with a controversial or sensitive issue, such as by way of questions in the House or from the media, if information is released by an agency for which they are responsible.”
The picture that emerges from the Report is that of the Official Information Act being adhered too in a strictly legal sense but with a parallel political process going on which is designed to either prevent some information from becoming public or alternatively to mitigate any political impact when it does.