The NZ Herald has an editorial today about the proposed Watchdog on open government.
Since its introduction by the Muldoon government in 1982, the Official Information Act has been a powerful force for transparency and accountability.
The public, as well as journalists, have benefited from the release of information detailing the inner workings of central and local government. But, as a just-released Law Commission issues paper makes clear, the legislation is due for an overhaul. Updating is essential, given the manner in which the digital revolution has driven social and culture change, including a greater expectation of openness and availability of information.
Bloggers are also increasingly using the OIA to go digging.
Equally, the law has not been free of flaws. Some public servants have been reluctant to apply it in both letter and spirit, choosing to stall or thwart public access to documents. Almost a decade ago, the Ombudsman’s alarm over this tendency sparked a call for the development of an “official information” culture that acknowledged both bureaucrats’ responsibility and the public’s ultimate ownership of information.
The Law Commission paper, entitled The Public’s Right to Know, treads a similar path but takes a different tack. Agencies, it says, should take “all reasonable steps” to make information proactively available, taking account of factors such as the information they held and the public interest in it.
This is important. In order to hold politicians to account you need to ask questions, but the hardest part is asking the right question so that you get the information you are really after. My experience with the OIA is a mixed bag. Currently I have two requests that have passed the 20 days months ago. The Police haven’t even acknowledged that they received one of the requests.
The issue paper also tackles the vexed issue of the withholding of information. The act is based on the principle that information should be made available unless there is good reason for refusing it. Commercially sensitive material or privacy issues offers such grounds, but this has always been a subject of confusion. Usefully, the paper suggests clearer guidelines could be prepared from the body of precedent, based on case notes of the Ombudsmen, who handle appeals if government departments refuse to release information.
The Office of the Ombudsman has to some degree already taken over this guidance function. But this has come about by default, rather than design.
The issues paper notes that no body is, in fact, responsible for championing open government or acting as a watchdog of underlying open government principles. It asks whether a separate body, an Information Commission, should be charged with this role. It would operate along the same lines as, and be a counterpoint to, the Privacy Commission.
That is easily solved, and this blogger has constantly called for the establishment of just such an independent institution. In Australia they have the Independent Commission Against Corruption. We should similarly have one here. There have been many examples where a truly Independent Commission Against Corruption would have been able to act and get better answers than the faux investigations intimated at the time.
An ICAC could have looked into things like the pledge card and the Owen Glenn donations, Taito Philip Field, like inappropriate use of computers and using parliamentary services staff to campaign, as well as the scandals like in NSW.
As is usual these days with the Law Commission, they made a good start, but lacked the bottle to further where needed. One such extension would be to apply the OIA to parliamentary services spending. The politicians will never let that open as long as their troughing arses are pointing at the ground. Labour especially, but all parties want OIA requests on their spending like they want to catch cancer. Yet there really is no other way to hold them to account and waiting 3 years to toss them out is far too long.
Coupled with the extensions to the OIA and the establishment of an ICAC the next step to improve accountability of politicians at all levels from local body to parliament would be the power of recall.