New Chief Ombudsman presses Key on OIA

New Chief Ombudsman Peter Boshier is putting government agencies on notice over releasing official information.

Mr Boshier – a former Principal Family Court judge who served as Law Commissioner before stepping into his new role – promises to release league tables ranking the time it takes ministries to respond to requests made by journalists and others under the Official Information Act (OIA).

OIA advocates say delaying tactics are undermining transparency and democracy, and aiding big government and back-room decision making.

Government agencies have 20 working days to respond to an OIA request. Many have developed a track record of leaving it to the last minute to supply information, or use one of the Act's provisions to claim an extension. Heavily-redacted (blacked out) documents are also common, while Reserve Bank introduced a new obstruction gambit this year by charging a journalist a $651 fee. Sometimes requests are outright denied. 

An exception has been the Prime Minister's office and SIS, which responded to OIA requests from Whaleoil blogger Cameron Slater with remarkable speed, supplying him with documents embarrassing to (then) Labour leader Phil Goff.

Mr Boshier says he has  begun meeting with political parties and will meet with the Prime Minister’s chief of staff about speeding up release of information

“We’ll be assessing in a very clinical fashion indeed and, I may as well say this, whether a refusal by a minister stacks up, and I’ll be fairly robust about this," says the Chief Ombudsman.

He says he opposes government departments charging for OIA requests unless there’s “a whole world of research that needs to be done”.

He says he will introduce new targets to have 70% of complaint cases to his office will be dealt with in three months and no cases will be older than 12 months

He says more money for his office is possible in this year's Budget to clear a backlog of 650 cases.

RAW DATA: Lisa Owen interviews new Chief Ombudsman Peter Boshier on The Nation

Lisa Owen: In terms of culture, you recently commented that there are lawyers and personnel within government departments that, you know, they know how the act work,  and you’ve said, and I’m quoting you here, you’d like them to be increasingly assertive with agencies and the ministers they work for just to get the thing working. Why do they need to get more assertive, and what’s not working?

Peter Boshier: Well, I think that there should be a premise that why don’t we make information available? Let’s start with the default position of ‘why not?’ instead of ‘why should we?’ And I just think that there’s a certain risk adversity. There’s the likelihood of certain political management of just seeing how things go in case the story goes away and the longer we leave something, the less relevant it may become. So I think that it’s important for those that can influence to get to grips with the principle, which is freedom of information. So I’d like to that to be the cultural message that I most want to give.

But it sounds like the message that there is now is political management. That sounds like interference.

I don’t think it’s interference. I think, though, that the ability for agencies who are responsible to get that information out should be done without influence of political advisors. So we found in the report we did in the end of last year the ‘no surprises’ policy, and we all know what that is, can mean that an agency says to a minister, and that often means a political advisor, ‘Look, we’ve had a request. This is what we’re thinking of doing.’ I don’t think it’s right that that request should be visited with a, ‘Well, let’s think about this and decide what we release.’ I don’t want that happening. I don’t mind ministers knowing, but I think the true purpose and implementation of the act is for chief executives and agencies if they feel they should release, to do it.

But when you talk about political advisors having a say, trying to slow things down, that is political interference. That is an attempt to stop information that may not have a good spin on it for the government of the day.

And I think that that’s almost inevitable. Other countries have called this a freedom of information act and the premise is that it’s a right. Here it’s often seen, I think, as an inconvenience, and I want to get back to my cultural message that it’s not an inconvenience. Parliament passed this act. There is an assumption that people are to release this information. It should be a core activity. So part of my answer to your question is I don’t want this sidelined to be a ‘let’s get around dealing with this request if we’ve got time’. I want it to be right up there in terms of core responsibility.

Well, your predecessor said to us in October that as a result of the report, you were going to be having words with a few people, meaning people who weren’t playing by the rules. Given the problems that you’ve identified there, have you spoken to a few people yet and who?

Yes, we’ve started. Well, already we had a public sector communications ministerial advisors forum attended by 57 people last Friday. The two messages we’ve given on that are first of all— and if I can let you know, because it’s quite important, the first is how we’re going to deal with timeframes. We’ve been too forgiving in the expectation of when people would get back to us, so we’ve started to cut down on time expectations. The other is that as the—

What do you mean exactly by that? When people complain to your office?

No, when we get a complaint or an official information request and we ask an agency’s view, we will give them 28 days. I think it’s too long, so I’ve started to a) cut down that down to something like 14 and b) started to work more electronically so that we are getting things moving much more quickly. The second thing I want to say is as of the 1st of July, we intend to move towards publishing what I’ll call league tables. We pretty much know who are really good compliers with the act and those who are not, and probably it will be good for the public to know that as well.

So who are the ones who aren’t so good?

No, I don’t know that I need to elucidate that—

If you’re going to publish them and your policy is ‘why not’, why not tell me now?

Because I think that what I’d like everyone to do— I don’t want to be a scare merchant. What I want people to understand is this is the direction in which we’re heading, and I want to give people a gracious period of knowledge that we are going to start doing this so that people can realign the way they want to deal with this act.

So it will be a league table of government agencies, how they respond to OIAs, whether they’re great or whether they’re bad?

Yes, and you know and I know at the moment that some are really good and some are not good. And rather than now use this as an opportunity to get in boots and all, I’d rather not do that. I’d rather say, ‘This is your period of warning. This is the direction in which we’re going.’

So you’re putting them on notice?

Yes.

So in terms of talking to people, how far up the food chain have you spoken to people? Because John Key was last year saying things like that they hold onto information for the maximum of 20 days if it suits their political means. Have you had a chat to our prime minister about that?

What I’ve started doing is this – I have decided to meet with all political parties, so I’ve met with three so far, the Greens, New Zealand First and United Future. And I have all the other parties lined up, and I’m going through my expectations of what they’ll do and my expectations of my new timeframes where I want to make our office leaner and better in terms of answering information.

So in the course of that, you will be speaking to the Prime Minister?

I’m speaking to his chief of staff.

Okay. Let’s talk about act response times, because agencies have 20 working days. That’s the maximum, but the spirit of the act is that if information is going to be released, it should be released as soon as possible. But, you know, you talk to journalists or members of the public,  that hardly ever happens. They’ll take the maximum amount of time. So how are you going to stop that happening? How are you going to turn that around?

I can’t do much more than have a clear cultural expectation that this is what the act requires, and, Lisa, I do want to use the gravitas of my office and of my background to say that we’re not going to tolerate an attitude to this act which is not fulsome and incorporates the real spirit of it. So, look, I can’t go out and convict and fine people who leave things till the last minute, but it won’t hurt for them to know in a public sense that we’re unimpressed.

Okay, because the thing is one of the reasons for delay are reputation management and spin. How is this going to look for the government? Would it be better if it comes out at a later time? Those things shouldn’t be a concern at all, should they?

But they’re realistic. Look, I’m not naïve. I think that under this act there is always going to be that and there always has been an aspect of management. What I’m saying to you is—

But that’s not permitted under the act. That’s not one of the reasons for withholding information, so it’s law-breaking, isn’t it?

I think that we can lever people up to see that we mean business, and I want to give you this undertaking that we do mean business, and it may take us a while to get to where I want to be, but we will get there.

Now, let’s say you have a scenario where you don’t get the information that you want and you take a complaint to the ombudsman. 37%, I think, of complaints that come to the ombudsman’s office, they’re still waiting for an outcome in a year, so what are you going to do about that?

We have a substantial difficulty in our office in delay. You know that, I know that, everyone knows it, so we’re being fairly bold and courageous about how we want the office to be managed. I have requested some assistance from Parliament, which is the subject of their consideration at the moment.

What do you mean by assistance?

Budget. Budget improvements to achieve specific positions in the office. For instance, I want to get a backlog team in to remove the backlog and get rid of it. I can then move to business as usual, which is the new work, and I want to get new timelines in place as to when we’re going to do what and in what time.

So what target? Because at the moment 37% a year out, no decision. What’s your target going to be?

My target is going to be you might think altogether heretical and bold, but it’s going to look like this – 70% of cases will be dealt with in three months, no cases will be older than 12 months. So it will look like a pyramid, and we will do many more cases in the bottom tier of the pyramid by alternative dispute resolution and working in real time. Now, I don’t want to go on and on and overstay my welcome on this, but we’ve just got to get processes which are more modern, which have a better sense of time, and that means more use of electronics.

Well, those are ambitious targets. Are you going to meet them this year? How much more money are you going to need to do it?

I don’t think we’re going to meet them straight away because we have a backlog of about 650 cases which are more than 12 months old, so let’s just repeat that. More than 650 cases of 12 months or more, that’s a heavy diet for me to knock off, but I think once we’ve done that and once we get new processes, a new era underway, we can achieve new targets. And, look, can I say we’ve got to. There is no point in you as a journalist with a story that you’re pursuing getting us to deal with it in over 12 months’ time.

So to date, then, has your office been failing?

We haven’t met objectives which I think are acceptable.

I want to talk about a couple of things that have been in the news – the Reserve Bank decision to charge for OIA requests as a standard for what they say are large, complex or frequent requests. Do you need to put your foot down over that? They were going to charge one journalist 600-and-something dollars for a request.

Can I deal with what I think we should do over charging? First of all, if we were to call this a freedom of information act and not an official information act, it gives the right tone. There should be an assumption that you can get information in a freedom way – that is without cost. That’s my starting point. I would like to say to you and all requesters that if we can get requests defined over both time and content, I think we can move more quickly. And in those requests, unless there’s a whole world of research that needs to be done, there should not be charging. I think where charging will come in is where some people go at it time and time again and when the request covers a huge period of time. So, look, it’s going—

But as a general rule, you do not support charging?

I do not support charging as a general rule.

Okay. The other thing is High Court decisions relating to official information. There was one in relation to the then Trade Minister Tim Groser and TPP documents. There’s also been a recent one with respect to a Northland environmental group that is— they’re now getting access to documents. And in the case of Tim Groser, they have been told to rethink their decision to decline the information. In both those cases, has the court done your job for you?

I think the court has drawn attention to the fact that when— Don’t forget that I’m a judge. I’m going to come at this a bit differently, and, look, this is just the way life is. We’ll be assessing in a very clinical fashion indeed and, I may as well say this, whether a refusal by an minister stacks up, and I’ll be fairly robust about this.

All right. Thank you very much, Judge Boshier, for joining us, and we’d love to check in with you again to see if you’re meeting those targets.

Thank you very much.

Thank you.