Official information disclosure needs a new champion – lawyer

A media lawyer wants the government to rethink the need for an information commissioner.

It was something mooted in July last year by the Law Commission when then-commissioner Professor John Burrows released a review of the Official Information Act.

This week justice minister Judith Collins responded to the review with the government’s plans to move on some of the key recommendations.

Those plans do not include an information commissioner to oversee the Act.

But Wellington media lawyer and academic Steven Price says a statutory body can only be a positive thing.

“This would provide policy advice, keep the law’s operation under review, promote best practice, investigate systemic issues and oversee training, guidelines and annual reporting. My research found that when things go awry, it’s more often through misunderstanding than game-playing," Mr Price says.

“The re-establishment of such an office is in keeping with overseas information commissioner offices.”

He says that while the Law Commission admitted the fiscal environment at the moment may not lend itself to a whole new office, perhaps a commissioner or office could have been set up within another department – the State Services Commission, for example.

“What strikes me is the government is saying the Ombudsman can do that and they don’t appear to be giving any extra funding despite the fact the Ombudsman has been stretched for years,” he told NBR ONLINE.

The idea of introducing an information commissioner was perhaps the most important of the Law Commission’s 100 recommendations on the OIA.

“When the OIA was first passed in 1982, there was a body called the official information authority. It had a very useful oversight function and its job was to review the way the act was working; make recommendations to government for its reform; recommend agencies change their practices to conform to the act, and see how it integrated with other pieces of legislation.

When that agency was wound up in 1988 it wasn’t replaced with anything. So currently the OIA has no champion,” Dr Burrows told NBR ONLINE last July.

Ms Collins has instead recommended:

• Extending the OIA to the administrative functions of the courts, including information about expenditure, resources and statistical information about court cases.

• Supporting improved education and guidance from the Office of the Ombudsman – the independent authority which provides advice to government agencies and helps people in their dealings with the state sector.

• Introducing new protections for commercial information and clarifying how the legislation applies to commercially sensitive information.

• Protections for third-party information and other issues related to the Privacy Act.

“The Law Commission found the legislation’s underlying principles are sound and are fundamentally working well,” Ms Collins says.

“Last year, New Zealand was ranked first equal in Transparency International’s corruption perception index for having one of the least corrupt, most transparent governments in the world.

“This is good news and reassures the public that we have good practices.”

Mr Price says overhauling the OIA will be sensitive and somewhat of a juggling act with both the requester and the requested wanting a change.

Any reforms have the potential to “shatter” what he describes as a world-leading official information regime.

Too much transparency, he argues, and important interests such as privacy, commercial confidentiality and legal professional privilege are undermined. The mechanics of government can also be brought to a halt by the resources consumed responding to requests.

“Too little, and the law’s laudable aims of promoting accountability, good law-making, public participation and trust are frustrated.”

He says requesters would like to see an end to “game playing” when they make politically sensitive requests. They would also like deadlines better adhered to and officials to be a little less ready to invoke withholding grounds whenever there is a mere sliver of justification.

“Officials and ministers on the receiving end of requests would like a few more withholding grounds. They’d like requesters to tailor their requests better and then use the information more accurately.

"They would like to be able to more easily reject requests that called for a massive trawl through thousands of files, emails, drafts and memos.”

Mr Price doubts the government’s announced changes will make much difference to the OIA, but he says it is a missed opportunity to make the system, which remains very relevant, even better.

bcunningham@nbr.co.nz