Guest Post: PPTA on the OIA and Charter Schools

March 12th, 2013 at 2:00 pm by David Farrar

A guest post by Tom Haig of the on the issue of whether should be covered by the Official Information Act:

Funny how history turns out eh? Back in 1977 a young Labour MP took on Muldoon, promoting a ‘Freedom of Information Bill’ to challenge the principle of the ‘Official Secrets Act’ which meant that, unless otherwise specified, all state information was kept secret. That Labour MP was Richard Prebble, and in 1982, following his first attempt five years before, the Official Information Act overturned the Official Secrets Act. Fast-forward 36 years, and Prebble’s parliamentary heir is hastily scrabbling for reasons why the should be undermined to promote the politically expedient project of charter schools. 

One of the aspects of the Bill introducing charter schools that attracted a lot of attention at Select Committee was section 158X which would grant them exemption from the Official Information Act and Act. Three justifications are put forward for this, and I don’t believe the Richard Prebble of 1977 would have had a bar of any of them.

The first reason, advanced in the Cabinet papers describing the establishment of charter schools is to ‘avoid vexatious and costly complaints’. This is a terrible argument. Firstly on the practical side – yes, addressing OIA requests can take time and effort, but organisations are allowed to bill for their reasonable costs. Secondly, if this is allowed to stand, shouldn’t every government department mired in scandal be allowed to opt out for just this reason? Finally, charter schools would be within their rights to refuse to answer frivolous or vexatious requests, and if the Ombudsman agreed it was a worthless request then they’d be able to throw it out.

The second justification is that exemption is consistent with the status of the sponsor as a community organisation. This is problematic, as it’s about the type of organisation providing the service, rather than what the service is. By extension, this could mean that if the government was to contract out all variety of services to community or private organisations the extension of OIA coverage would shrink. Locking up core state services in contractual agreements with private providers is risky for numerous reasons; this is certainly one of them.

The third justification is that charter schools are analogous to early childhood or private training providers, which are not subject to these acts. However, there’s a glaring difference between these sort of providers and schools – and that is the aspect of compulsion.  As a ‘classic liberal’ party, Act should be well aware of this distinction – protecting citizens from the power of the state is after all one of their main concerns. Students have to go to school, while going to early childhood education or tertiary is a choice, and as such the role of consumer is quite different from that of a child at school.

So what would it mean for students and families at charter schools if they’re not covered? For one thing, the OIA and Ombudsman Act provide important protection in regards to decisions made about them, by giving them access to the reasons for those decisions, which the Privacy Act does not. Similarly, students and their families, or teachers at the school, or the wider public, will have no automatic right of access to the school’s policies, which could lead to decisions made by school managers seeming arbitrary and unfair.

This issue of making school policies public had some coverage recently following cases of schools not allowing students to take same-sex partners to their balls. In 2011 Blogger Matthew Taylor wrote to secondary schools around the country asking for their policies on this, a request which threw a number of school principals into a fluster.  As they do in such situations, some brought this concern to the PPTA, and we advised them that they should give the information – it’s a perfectly reasonable request and there’s no good reason not to make it public.

I’ll finish with a quote from the Ombudsman’s submission to the Select Committee:

“Clause 158X of the Education Bill runs the risk of creating a state funded schooling regime which is shrouded in secrecy and is unaccountable. This is likely to hamper the ability of partnership schools to achieve their central goal of achieving better outcomes for students. Applying the Official Information Act and Ombudsmen Act to partnership schools will assist partnership schools in exercising their statutory functions, enhance transparency and accountability, bring New Zealand into line with international models and avoid the constitutional anomaly inherent in the current Bill.”

Removing this clause won’t make me support charter schools. But if they’re going to exist there’s no good reason that they should be shrouded in secrecy. And if the more ideologically consistent members of the Act party were to search their scruples carefully, I suspect that they would agree.

Personally I’m not convinced by the arguments for charter schools to be excluded from the Official Information Act and Ombudsmen Act, and think that as they are primarily taxpayer funded they should be included in both Acts. I hope the select committee recommends changes to that effect.

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16 Responses to “Guest Post: PPTA on the OIA and Charter Schools”

  1. Pete George (21,831 comments) says:

    Get with the new name – Partnership Schools.

    Critic John O’Neill described them as “patronising”, “immoral” and exhibiting “wilful neglect of the Government’s social contract”.

    Chairwoman of the Partnership Schools/Kura Hourua working group Catherine Isaac says this shows a woeful neglect of the facts.

    Fact 1: The many undoubtedly positive features of regular state schools that he cites, such as parent representation on school boards, and the requirement of schools to produce detailed annual plans with targets and employ teachers registered with the Teachers Council, have not saved 52 per cent of Maori students and 41 per cent of Pasifika students from failing to achieve NCEA level 2.

    Fact 2: Communities around the country want this initiative. It has the “total and unequivocal support” of Te Maru o Nga Kura a Iwi o Aotearoa , the Iwi Education Authority, comprising 23 Kura a iwi and their respective iwi. They are specifically attracted to the Kura Hourua model because it combines freedom to innovate with a high focus on accountability and achievement of results.

    Fact 3: At the heart of this model of school is a binding, legally enforceable contract with the Crown that will require any organisation seeking to establish a school to meet specific, measurable performance goals including student academic achievement, student engagement indicators and financial, legal, health and safety and organisational performance.

    Fact 4: They are a school of choice. No teacher will be forced to teach at one of these schools and no student will be forced to enrol in one. They will receive no more funding than the per-child amount received at a regular state school.

    Fact 5: Neither the legislation nor the information explaining this initiative use the words “untrained and unqualified” to describe the teachers who may be employed by these schools. The ability to employ some teachers who are not registered with the Teachers Council simply provides for the opportunity to draw on the wider pool of trained and qualified teachers working in private training establishments.

    Fact 6: International evidence, notably the Credo research cited so often by opponents of Partnership Schools, has produced some conclusive findings. While results vary by state and by school, US charter schools have improved results for all students from low-income backgrounds, minority groups and those with English as a second language. Those with the best legislated models of charter school get consistently good results across the board.

    In Sweden, after 21 years’ experience and data from 400 free (charter) schools and millions of students, the results are strong and clear: all students are doing better, achieving better grades and higher rates of participation in tertiary education.

    Fact 7: Partnership Schools are an opportunity for the teaching profession. The Swedish teacher unions did not oppose the introduction of free schools there, seeing them as providing good professional development opportunities for their members. Subsequent surveys have proven them right.

    In opposing Partnership Schools, education academics and teacher unions are doing a disservice to both the teaching profession and children.

    The true test of the Government’s social contract is whether it improves the life chances of those children who are being left behind by an overly prescriptive education system that frustrates innovation.

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10870578

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  2. RightNow (6,350 comments) says:

    While I support charter schools, I agree they should not be exempted from the OIA.
    Having recently resorted to making OIA requests of my son’s (ex) school to get a fair deal for him I know this is one of the few mechanisms a parent can use to level the playing field and get something approaching a fair outcome.
    In our case it was basically a fight against the principal, the MoE, Teachers council and Principals federation. Oh, and the Limited Statutory Manager (my wife hasn’t forgotten about you Ken ).

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  3. BeaB (1,960 comments) says:

    In that case we should no longer exempt early childhood centres, state funded private training establishments and private schools which also get state funding. Why are partnership schools singled out by the PPTA?

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  4. BlairM (2,266 comments) says:

    Anything which gets government money should be subject to the OIA. Of course, I include public sector unions in that too. ;-)

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  5. PaulL (5,776 comments) says:

    Exactly BeaB. The argument in here that schools are compulsory and early childhood education are not is a bad one. Charter schools are not compulsory. I’m assuming that the exemption is in there because it’s in other similar legislation. Having said that, I have no problem with them being subject to the OIA so long as there are suitable exemptions that prevent misuse of that.

    I’d be interested in whether this was a conscious inclusion or just comes from the template for non-govt organisations working on behalf of the govt. If the former, then what was the mischief that we were seeking to prevent. If the latter, then why are people complaining about it if it’s common practice? Do NGOs in the social services sector submit to the OIA? If not, then why would charter schools be different?

    My gut feel is that this is the PPTA making a stand about a trivial point because there’s nothing else to argue about. Their argument is weakly phrased. Having said that, it is opening up the question of whether all organisations that take govt money should be covered by the OIA. This could include:
    – lobby groups (perhaps in the health sector)
    – unions
    – those in receipt of corporate welfare – grants and the like

    It could be amusing to see how many people run for cover when that’s suggested.

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  6. wrightingright (132 comments) says:

    > The third justification is that charter schools are analogous to early childhood or private training providers, which are not subject to these acts. However, there’s a glaring difference between these sort of providers and schools – and that is the aspect of compulsion. As a ‘classic liberal’ party, Act should be well aware of this distinction – protecting citizens from the power of the state is after all one of their main concerns. Students have to go to school, while going to early childhood education or tertiary is a choice, and as such the role of consumer is quite different from that of a child at school.

    What a most ridiculous argument to make!!

    *EVERY* family which chooses to send their children to a partnership school are doing so by their free will, completely by choice.

    The fact something merely gets government money is not a sufficient reason to make it come under the OIA (although like BlairM, I wouldn’t mind it too much if that is true. So long as it is consistent and EVERYTHING which gets states money is under the OIA).

    Shall we require everybody who is a beneficiary to be subject to the OIA too?

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  7. RightNow (6,350 comments) says:

    “Shall we require everybody who is a beneficiary to be subject to the OIA too?”

    Ooh yes please!

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  8. scrubone (2,972 comments) says:

    As per the comments above, school is compulsory, public school is not. The fact that Mr Haig quietly forgets the existence of private schools (and their not being subject to the OIA) undermines his comments significantly.

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  9. wrightingright (132 comments) says:

    RightNow, good let’s lobby government now to stick to this new expansive definition of the OIA!

    I suppose this includes anybody getting anything from WFF too? And students as well?

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  10. RightNow (6,350 comments) says:

    wrightingright – sounds good to me. Are civil servants covered? (and I use the term ‘civil’ loosely).
    What about academics?

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  11. Tharg (14 comments) says:

    Tom here. On the argument that charter schools should be exempt because people choose to send their kids to them – by extension so should any school. No-one is compelled to send their children to a particular school. The issue is that the state has a greater responsibility to people whom it compels to do something, i.e. go to school. On private schools, I think that they probably should be subject to the act too, but the exemption there would be simply more an historical anomaly than a deliberate policy – as until recently they did not receive much state funding.

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  12. PaulL (5,776 comments) says:

    @Tharg: I suspect there is a standard set of legislative clauses that go with government services that are “contracted out.” I’ve seen lots of examples given by people on here where those services aren’t subject to the OIA. I haven’t seen any yet given where they are. I’m wondering what’s unique about charter schools that they’d get different treatment than other similar services that the government procures. It smells fishy to me at the moment.

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  13. Tharg (14 comments) says:

    @PaulL The example that the Ombudsman gives is private prisons, which were subject to the OIA. To me it seems that if the same service is provided by a state agency which is subject, then the contracted out version should be to.

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  14. PaulL (5,776 comments) says:

    @Tharg: that makes sense. Is that a solitary example? If so, then the appropriate generalisation would be that things that a National-led govt introduces should be subject to the OIA, and things that other govts introduce shouldn’t. :-) It certainly seems to me that many NGOs provide services in the child welfare space that are also provided through the govt (at least, that was the case when I last worked in CYPFS, which has no doubt changed its name since). And I don’t think they are subject to the OIA.

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  15. rg (190 comments) says:

    All the information about the partnershipschol will be held by the Ministry of Ed which is subject to the OIA

    If we take the argument that because they use taxpayer money they should be subject to the OIA then so too should be covered are the 5000 early childcare centres that are not curently covered, Fulton Hogan uses public funds to fix the roads, lets get them into it, the political parties like National and Labour use public funds to campaign with so lets make National subject to the OIA etc etc.

    David’s argument is absurd.

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  16. mpledger (428 comments) says:

    The problem is when a government doesn’t want to do anything about a problem because it will make their policies look bad – there has to be some way for people to get information when the government won’t act so they can force the government to act.

    Here is the scandal of a scholarship program (i.e. vouchers for the disabled) in Florida
    http://www.miaminewtimes.com/2011-06-23/news/mckay-scholarship-program-sparks-a-cottage-industry-of-fraud-and-chaos/
    Because noone in local government wants the bad news of seeing their policies going down the toilet they won’t act. So these private “schools” are ripping off the system, giving the kids a near zero education while laughing all the way to the bank. If there are descrepancies in funding then the offenders are given a slap on the wrist with a wet bus ticket.

    In my opinion if a private company accepts public funds than that contract and its performance should be open to public scrutiny (but nothing more).

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