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.