A bad veto

October 16th, 2013 at 12:00 pm by David Farrar

If you are trying to get official information from central or local government and they refuse, you can ask the Ombudsman to investigate. If they rule that you should get the information, then the entity must give it to you, unless they veto it.

The veto for central government is done by Cabinet and has not been used since 1987. That is because any Government that did so would pay a heavy political price for doing so.

As far as I know no elected local government entity has used the veto either. Again, because the Councillors who did so would risk losing their seats.

But No Right Turn highlights one local government entity that has used a veto. The Auckland Council Maori Statutory Board. They did a veto to prevent the release of information on the towns and districts where their board members resided.

It is appalling that an unelected body has the power to over-ride the Ombudsman. One can debate whether Councils or Cabinet should have the right, but at least as elected politicians they can be made to face consequences for doing so. The power of the Maori statutory Board to veto the Ombudsman should be removed from the law immediately.

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Isaac responds to PPTA on OIA and Charter Schools

March 15th, 2013 at 11:00 am by David Farrar

Catherine Isaac the chairwoman of the Partnership Schools/Kura Hourua working group, responds to the PPTA guest post calling for charter schools to be included in the Official Information Act.

 It was only last year that NZEI argued schools should ignore the Official Information Act 1982 (OIA) requests regarding National Standards.  They publicly advocated for an OIA exemption for National Standards data.  I am pleased the Education Unions suddenly have a profound new respect for the OIA. 

Mr Haig of the PPTA claims the support of Hon Richard Prebble in his assertion that jurisdiction of the Ombudsman should be extended to Partnership Schools | Kura Hourua (PSKH) under the OIA and the Ombudsmen Act 1975 (OA).  

Richard Prebble may be retired but fortunately he’s still very much around, so I thought I would ask him.  Here is his response to Mr Haig.

“I introduced the first Freedom of Information Bill into Parliament so we could see what the Government was up to.  I have never supported the right of the state to spy on private organisations or citizens.”

“While I am at it, I strongly support Partnership Schools.  I’m not surprised Maori are welcoming the initiative since the state school system has failed them.  The PPTA must also take some of the responsibility.  Instead of opposing Partnership Schools, the PPTA should acknowledge that they are most unlikely to be worse than state schools have been for Maori and they are likely to be much better.”

Tom Haig was unwise to cite Richard Prebble to support his case, but the rest of Mr Haig’s arguments are no better.

The decision not to extend the jurisdiction of the Ombudsman to PSKH is right both in principle and in practice. 

The purpose of the OIA and the OA is to restrain the executive branch of government and other crown entities by providing access to “official” information and providing for an investigatory role over government administrative decisions.  Both the OA and OIA were introduced because of the significant power the state can wield over the lives of citizens. 

Partnership Schools | Kura Hourua are not subject to the OIA and OA because they are not part of government – they are non-governmental organisations.   

Sponsors can be either non-profit or for profit organisations, incorporated or non-incorporated, and might be community or iwi organisations or charitable trusts.   They may or may not get all their funding from government, but even if they do, that is not a principled reason for PSKH to be covered by the OIA and OA.

Over 5000 educational organisations receive full or partial funding from government but are not subject to the OIA and OA.   Thousands of other organisations providing services to the government are fully or partially publically funded and are not subject to the OIA or OA.  The reason is that they are non-governmental organisations.

Somewhat inconsistently, the Ombudsman made it clear to the Select Committee that they were not advocating extending their jurisdiction to the other 5000 educational organisations, only to PSKH.  

In an unfortunate analogy, the Ombudsmen said PSKH were like private prisons.  In a similar vein Mr Haig conflates compulsory education with compulsory attendance.  Both are wrong.

PSKH are not similar to a private management contract of a prison.  Prisons, be they public or under a private management contract, are uniquely coercive.  Prisoners don’t get a choice of prison and cannot leave at will.  Prisoners are there because of the coercive power of the state. That is why the OIA and OA apply and rightly so.   But no one will be forced to attend a PSKH, nor teach at one, and all will be free to leave.

The Ombudsmen offered an example of a three year parental dispute with a state school as another argument for the OIA and OA to apply.  On the face of it, three years seems a long time to come to a resolution when the education of a child is at stake.  Mr Haig’s post outlines a state school dispute invoking the Human Rights Act 1993 (which applies to PSKH).   The Ombudsman expressed a further concern over the potential improper use of the statutory power to expel, suspend and stand down a student.   

The PSKH model offers significant powers to parents to protect them and their children.

Not only can parents receive meaningful information about their child, the contract provides for an independent review mechanism that every parent can access.  This will apply to all disputes including disputes over the use of the power to expel, suspend or stand down a child.    

The sponsor will be able to tailor the dispute resolution process to provide for a speedy, efficient and independent way of resolving the dispute that focuses on the particular educational needs of the child.   This should provide for a better, more  timely mechanism for dispute resolution than the general jurisdiction of the Ombudsmen. 

The PSKH model has been designed to be transparent and more accountable.

Detailed reporting against specific, measurable academic , student engagement and other performance goals will be required as part of a PSKH’s contract with the Crown.   They will have to publish annual audited accounts.  Furthermore, any information held by the Ministry of Education, the Minister and the Authorisation Board will be subject to the OIA and OA, as these entities are part of government.  In addition, the Secretary of Education can ask for any additional information over and above that required under the sponsorship contract.  PSKH will be scrutinised by both the Education Review Office and the Authorisation Board who will apply a specific evaluation framework.  And unlike state schools they can be closed quickly for non-performance.

PSKH have a significantly more rigorous and effective accountability model than state schools.  That is why, on balance, the PSKH Working Group considered that subjecting PSKH to compliance obligations and costs under the OIA and OA over and above all their other obligations is unnecessary, would not advance the interests of children, parents or taxpayers and may detract from the vital educational mission of Partnership Schools | Kura Hourua. 

Thanks to Catherine for her reply.

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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 PPTA on the issue of whether charter schools 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 OIA 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 Ombudsman 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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Ombudsman tells schools to release the data

August 8th, 2012 at 2:00 pm by David Farrar

Stuff reports:

Schools have been told to disregard the advice of a primary teachers’ union and instead release controversial National Standards performance information.

Chief Ombudsman Dame Beverley Wakem has written to all schools after some brushed off requests for the data with a pro-forma response provided by the New Zealand Educational Institute.

Dame Beverley said the advice NZEI had offered “conflicted” with that provided by the New Zealand School Trustees Association.

“In my view boards of trustees are entitled to rely on the advice conveyed by the NZSTA. However, boards that rely on the advice conveyed by the NZEI risk an adverse finding being made against them by an Ombudsman under the [law],” she said.

Schools that had acted, or were considering acting, “in accordance with the NZEI advice” should reconsider, she said.

Those that continued to refuse or extend release of information would face an investigation, which “may find that a board has acted unreasonably or contrary to the law”.

Schools are publicly funded and must obey the law around public entities – simple.

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Ombudsman funding

February 16th, 2012 at 11:32 am by David Farrar

Adam Bennett in the NZ Herald reports:

The Office of the Ombudsman is in “crisis”, says the Chief Ombudsman. …

Appearing before Parliament’s government administration committee, Ms Wakem said the office, which investigates complaints from the public stemming from their dealings with central and local government, was under “considerable pressure” in terms of staffing and funding and had been for the past three years.

She said the office’s baseline funding had been established on the basis it would be actively working on 800 to 1000 cases at any one time.

At present it was dealing with about double that. The office had about 300 cases it was unable to work on because of a lack of available investigators.

Its workload had also been boosted by about 270 complaints stemming from quake victims’ dealings with the Earthquake Commission and Canterbury Earthquake Recovery Authority.

Ms Wakem said she had asked for about $1 million to be added to the office’s baseline budget of $8.6 million, so it could meet its operating costs and employ two more investigators.

The Office of the Ombudsman has a critical role in our Government. If the workload has increased as described, then there should be extra funding for the office.

There was a $550,000 boost in 2010 to their funding, so there has been some additional funding, but hopefully more will be provided in the 2012 budget.

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Ombudsmen Annual Report

October 14th, 2010 at 11:00 am by David Farrar

The 2009/10 annual report is here. One extract:

In 2009/10 we received 164 delay complaints against Ministers and central government agencies. This is down 23 per cent on 2008/09 numbers, and 43 per cent on 2007/08 numbers, and is the lowest number of delay complaints received since 1993/94

That’s great – suggest there has perhaps been a significant culture change.

The report provides a good breakdown of which agencies had the most complaints. However it does not report which agencies had the most complaints upheld against them – which could be the more relevant stat. One persistent complainer could warp the stats for an agency.

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Manukau City Council refuses to reveal dinner attendees until after election

October 6th, 2010 at 5:36 pm by David Farrar

Stuff reports:

Secret details of an $810 dinner Manukau mayor Len Brown charged to his council credit card are unlikely to be revealed before this weekend’s local body election, the Ombudsman says.

Why not you ask? Do they not have to obey the law?

In what was possibly the most memorable part of this year’s local body election campaign, Brown gave an emotional and passionate address to his council colleagues about the dinner. He punched his head and chest and said he would “never” reveal who attended.

“Will I give you the names? Never. I want to tell you that, I feel so intensely strong about this.”

So Len’s position is clear – he will never ever voluntarily reveal the names, despite ratepayers paying for the dinner. But Manukau City Council knows and they can be ordered to do so under the Official Information Act.

The Ombudsman received a number of complaints about Brown’s refusal to name those who he took to Volare.

It was hoped a decision would be made by the end of this week, but that is now unlikely.

“We are pushing this as fast as we can,” an Ombudsman spokswoman said today.

“There has been huge controversy around this. We understand people wanted to know about this before they voted.”

However the Ombudsman was required, by law, to consult with the Privacy Commissioner before reaching a decision.

This week commissioner Marie Shroff asked a set of questions of Manukau City Council about the dinner.

She wanted to know “whether the attendees knew they were accompanying Brown in his capacity as mayor” and “did they know the dinner was being charged to his mayoral credit card”.

Reasonable questions to ask. And very easy to answer.

But the council’s chief executive Leigh Auton told the Ombudsman there would not be enough time to answer the questions before the election.

Outraegous. My God – this involves around 30 minutes of phone calls, and they have 500 or so staff. One has to suspect this is a deliberate obstruction. Why are they so desperate to not name those who had dinner shouted?Is it because their identities would be in conflict with the reason giving for paying?

Auton was first notified of the complaint against his council in August.

It is understood an urgent telephone conference was being held this afternoon between the Ombudsman and Auton.

Sadly, even if it comes out tomorrow, it will be too late. But the Ombudsman should not reward the Council for stonewalling, and order the names released this week.

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Mai Chen on Ombudsmen

June 21st, 2010 at 3:00 pm by David Farrar

An interesting summary of a (55 page) paper by Mai Chen on the Ombudsmen legislation.

It is almost 50 years since New Zealand introduced a constitutional watchdog to provide citizens with redress for grievances against government departments and public organisations, as well as to improve standards of administration in government.

The ombudsman’s role has evolved since that time alongside the expanding influence of government in more and more aspects of our lives, under the Ombudsmen Act, the Official Information Act, the Local Government Official Information and Meeting Act, the Crimes of Torture Act and the Protected Disclosures Act.

Ombudsmen matter because they can deal more effectively and more quickly than courts in some cases, with complaints about behaviour by departments and organisations that appear to be contrary to law, to be based on a mistake of fact, and to be unreasonable, unjust, oppressive, or improperly discriminatory.

They are a very important part of our protections, which we often take for granted.

Some recommendations:

Ensure greater independence through a single fixed term appointment for ombudsmen, change the ability of the prime minister to refer matters (which may be politically controversial) to ombudsmen by requiring a resolution of Parliament (rather than from the prime minister alone), and an ability to keep under review and to report to relevant ministers and to Parliament on any proposed legislation that has implications for coverage by the ombudsmen and official information acts.

I agree on the single fixed term for Ombudsmen, just like the Auditor-General has.

Not sure if there is a problem with the PM being able to refer things by themselves, but agree on the enhanced ability to review and report.

Create a presumption that ombudsmen have jurisdiction over all departments and organisations that exercise public power and use taxpayers’ money, unless bodies are specifically excluded.

Yes.

Provide more powers to the ombudsmen, including binding powers against unreasonable delay by prescribed tribunals.

Sounds good.

Impose greater fines for actions which obstruct the ombudsmen from carrying out their functions and constitutional role.

Would have been useful against the Immigration Service!

It would be good to see the Government look at some changes to strengthen the role of the Ombudsmen.

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OIA game playing

December 2nd, 2008 at 11:42 am by David Farrar

The Chief Ombudsmen has put diplomacy to one side and in the annual report to Parliament has accused some public servants of game playing with the Official Information Act.

This is what people mean when they refer to the politicisation of the public service.

Some public servants playing games with OIA requests

The Office of the Ombudsmen is concerned some parts of the public service have been deliberately delaying responses to Official Information requests.

In the office’s Annual Report to Parliament, Chief Ombudsmen Beverley Wakem says the practice is unacceptable and subverts the purpose of the legislation.

Beverley Wakem says the Office has observed an increasing tendency by a few government departments and Ministerial offices to ignore the provisions of the Official Information Act over the timing of responses to requesters.

They should name and shame Departments and Offices who have been game playing.

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