A guest post by Mikenmild:

A while ago, Nostradamus suggested I contribute a piece for Kiwiblog on the Official Information Act (OIA). As a person with some experience of answering information requests, and of seeking information, I’m happy to do so.

I want to start with some practical advice. There are fairly often comments on Kiwiblog about making requests, typically “someone should OIA that”. People should use the OIA: it’s a great tool.

There is possibly no single piece of New Zealand legislation better known to the public than the OIA. And it is easy to use. But here are three tips:

• Search for the information yourself first. There is a wealth of information already publicly available. In fact, one of the purpose of the OIA is to ‘improve progressively the availability if official information‘.Most public sector organisations make genuine efforts to publish more information. And searching for what is out there already will probably help you make a better request.
• Check fyi.org.nz. This is a wonderful website run by Open New Zealand (about which I know little but that it appears to be a group of largely anonymous public-spirited citizens). It makes information requests on behalf of anyone who cares to use the site, and publishes all the information received in response. It is useful for anyone who would like to request information anonymously, for example someone making a request for information from their own department ;-).
• Be as detailed and specific as you can in making a request. This makes it easier for someone to respond to your request, and reduces the chances of your request being rejected outright, or you getting a reply asking you to pay to photocopy 10,000 pages.
• Remember that most public servants actually do want to help. Outright obstruction is rare. Provide your contact details in your OIA request, and make it clear you would be happy to clarify anything.

Now, read on if you would like to know more about the OIA, and how practice around it has developed.

New Zealand’s OIA was part of a general trend in democracies from the 1960s to improve public access to government information. While Scandinavian countries had some freedom of information laws as long as two hundred years ago, significant impetus was provided by the USA’s 1966 Freedom of Information Act, followed by similar liberalisation in Western Europe.

Nearly forty years old, the OIA, with its local government counterpart, quickly became part of New Zealand’s uncodified constitution. The OIA represented a radical change from previous practice. In most jurisdictions, government information has been at least traditionally, and often legally, restricted. New Zealand’s OIA replaced an Official Secrets Act, which had prohibited any unauthorised disclosure of any government information.

Our OIA established the key principle of availability: information shall be made available unless there is good reason for withholding it. This presumption of public access to official information was based on the premise that it would allow New Zealanders to more effectively participate in law making and administration, and would promote the accountability of government ministers and officials. As the legal maxim puts it

‘Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.’

But the presumption of public access does not mean that all official information is released. The availability principle contains the proviso for withholding information for good reasons. The OIA established two sets of reasons for withholding information. Conclusive reasons generally apply where releasing information would prejudice key public interests, such as maintaining public safety, national security or international relations, managing economic policies, or safeguarding criminal investigations and fair trials. The key consideration here is the judgement of ministers or officials as to whether releasing the information requested would be likely to damage these interests.

The OIA has a further set of reasons for withholding information. These include personal privacy, protecting trade secrets and commercial interests, maintaining constitutional conventions, and the effective conduct of public affairs. In deciding whether to withhold information for any of these reasons, however, a public interest test is applied. That means such reasons cannot apply if outweighed by a stronger public interest in making the information available. An example of this could be an agency releasing details of tenders, usually thought to be commercially sensitive, if there were a wider public interest in establishing the probity of a decision.

There are other, more technical, reasons to withhold information, such as if the information does not exist or cannot be found, would require excessive collation or research to provide, or would soon be published anyway. Agencies can also refuse to confirm or deny the existence of some information.

Supervising the operation of the OIA is the Ombudsman. Originally a Scandinavian institution, an Ombudsman was established in New Zealand in the 1960s to provide an independent authority to investigate citizens’ complaints against the government. In the 1980s, the Ombudsman’s jurisdiction was extend to to reviewing complaints against decisions about official information. The Ombudsman is an Officer of Parliament, which affords him or her a considerable degree of independence from the government of the day. The Ombudsman can review complaints against decisions to withhold information, and the outcome of the review is generally binding upon the agency concerned. The Ombudsman has established a considerable body of decisions that have shaped how the OIA has worked in practice.

That’s the basics of why we have an OIA, and how it works. Now, to examine what happens in real life.

No government relishes being held to account. Government ministers, their advisers, and public servants (sometimes reluctantly) can slow down, or obstruct completely, the release of information.

The most common problem is the delayed release of information. The power of delay is proverbial (fans should consult C Northcote Parkinson re ‘The Law of Delay’). Requests for official information must be responded to within 20 working days (with a extended period over the Christmas and New Year holidays). This period is only supposed to be extended for two reasons: to search a large amount of information, or to consult properly on the request. This rather modest proviso allows, unsurprisingly, wide scope for delay. Organisations sometimes try to issue multiple extensions of the time limit for the same request – this is a no no, but they often get away with it. Organisations might also attempt to extend the time limit to a date far, far in the future. This too is prohibited, as the act requires decisions on the release of information to be made ‘as soon as reasonably practicable’. Arbitrary extensions of response time are distinctly unreasonable. Also unreasonable is deliberately withholding information until the 19^th or 20^th working day.

One problem that developed since the 1990s has been the habit of departments referring information requests to ministerial offices. Technically, this can be justified under a ‘no surprises’ policy. Practically, however, if affords an opportunity for a minister’s political staff (press secretaries and their ilk) to interfere in, or delay, a response. This practice also allows ministers and their advisers to ‘game’ the process, most notoriously by releasing the information to friendly journalists or bloggers as well, or even providing those outlets with further details not covered by the original request. Departments, quite naturally, tend to defer to suggestions from their ministers’ staff. Unless a request involves information actually held by a minister, there should really be no need for a department to do anything other than inform its minister that information has been released.

The ultimate delaying tactic, however, is to refuse to release information, even when it is pretty clear that this is not justified by any of the reasons specified in the act. This effectively challenges a frustrated requester to complain to the Ombudsman. The Ombudsman is a wonderful institution, and frequently upholds complaints about refusals to release information. The Ombudsman’s processes can be cumbersome. They are thorough, but not especially timely. It is impossible to imagine the OIA working at all without the backstop the Ombudsman’s authority provides.

Despite these impediments, the OIA actually works rather well. Given some research, imagination and persistence, an amazing range and volume of information can be obtained. And we all benefit from better information about what the government is doing on behalf of us all.

Stuff reports:

Green Party co-leader James Shaw says NZ First are breaching their coalition agreement with Labour by axing Auckland light rail.

In some of his harshest ever words against the party, Shaw said NZ First’s killing off of Auckland light rail this term was a “slap in the face of Aucklanders” and breached the coaliton agreement between Labour and NZ First.

Transport Minister Phil Twyford admitted on Wednesday that neither of the Government’s proposed light rail plans for Auckland could progress because NZ First were against both of them.

It is convenient for them to blame NZ First, but the reality is they could proceed if they wished to.

NZ First only get four votes in Cabinet. Cabinet could vote 16-4 to proceed. The Coalition Agreement doesn’t give NZ First a veto on Cabinet decisions.

As far as I know, no special legislation is needed, so there is no vote in the House.

Health Minister David Clark has managed the near impossible – to unite right and left on Twitter for his throwing of Ashley Bloomfield under the bus, as captured so well by a Newshub cameraman.

Toby Manhire has an excellent article on The Spinoff which looks at Clark’s refusal to take responsibility for anything, and points out you can share responsibility rather than blame it all on your CEO.

It is true, of course, that Bloomfield had accepted responsibility for the mistakes. But responsibility is not an unshareable concept. Difficult to share: gummy bears, scooters, the human soul. Easy to share: responsibility. Take some! Get in! Of course I take responsibility – I take it enormously seriously, I take responsibility for the health system as a whole, and I will do everything in my power to make sure mistakes such as these do not happen again.

I want to focus not just on this episode, but make the case that Clark has in fact failed in multiple areas. Being a Minister should be about far more than just reading papers your ministry gives you. His going mountain biking is trivial compared to the real issues.

Not fronting press conferences

Clark was missing in action for most of the pandemic. He was rarely at a press conference. Contrast that with the swine flu pandemic where Tony Ryall held them twice a day. Ryall as Health Minister was the primary briefer.

Away from Wellington for two months

It is beyond belief that Clark was not one of the Ministers to stay in the Beehive during the lockdown. If there was any great confidence in him, he would have been there with Ardern and Robertson. He should have been playing a major role in directing and advising. He is the Minister of Health during the greatest health threat in a century.

Instead he was at home moving house, mountain biking, going to the beach and doing zoom calls.

Not been on the frontlines

Newshub reports he has yet to visit an isolation facility. Again Ryall as Minister during a pandemic was out in the front lines several times a week. He would hold his press conferences at airports, at hospitals etc. He knew that part of leadership was being at the coalface.

This also allows you to pick uo problems. You gain a huge amount talking to staff on the frontlines. If he visited some GP clinics early on he would have known what the Ministry was saying on testing and PPE was not the reality on the ground.

Again I recall Ryall used to pop into local hospital A&E clinics if he had a spare 30 minutes in a city and ask patients there how they had found the experience. Hugely valuable.

Reactive not proactive

A Minister should have a ministerial office that is there to trouble shoot and solve problems before they boil over. This requires a proactive approach.

A good Minister will know the ministry staff beyond the executive leadership team and even call them from time to time. The info that comes to a Minister formally is so filtered and reviewed that you miss out on the nuance.

More importantly a Ministerial office should be constantly doing a scan of media and social media for stories that could bite them, and then alerting their ministry to issues that need attention. There has been weeks of stories on social media about people not being tested at the border, lax isolation facilities etc. A competent Ministerial office and Minister would have been onto this well before it blew up into major stories.

Not over operational issues

The notion that Ministers don’t get involved in operational issues is a myth at best. Sure not with the Defence Force or the Police, but they do everywhere else. In fact a huge part of the job is risk management around operational issues. When you don;t do it, well remember Novopay?

If I was Minister of Health and the Ministry said they now have a policy of requiring all those in isolation to be tested, I’d be asking them, okay so how will you manage that in practice? Who is recording who is in isolation? Who is recording testing? Are they talking to each other? What is your plan for ensuring this is implemented well? I want to see that details by 10 am tomorrow.

Why Clark should go

It is fair to say not all Ministers perform at what I call the Ryall or Robertson level. And in many portfolios it isn’t that important, such as Ministry for Women, DIA, Consumer Affairs etc.

But Health, even in normal times, is a critical portfolio which does need a Minister who can lead. And Health during a one in a 100 year pandemic especially needs a Minister on top of their game, and sadly that isn’t David Clark.

What Labour should do is shift Chris Hipkins to Health. Hipkins has got through most of his educational reforms, and he definitely has the political skills and leadership to handle Health.

Ardern of course only has sacked someone to date for assaulting their press secretary, so it is unlikely she will act. But she should. Another three months of Clark as Health Minister is a threat to the high levels of confidence the Government currently has.

Of course as a National supporter I’d prefer she doesn’t take action. The polls don’t tend to react to just one week of bad headlines. But they do to a month of bad headlines, and she has to ask herself does she think they will stop without a change?

NewstalkZB reports:

The Government is being accused of a “sneaky” shifting of the goalposts on one of its flagship policies, as Budget documents reveal a major change in focus for the fees-free study policy.

Documents from this year’s Budget reveal a stark shift in the way the Government measures the success of the policy, which provides tertiary students with a year of free study.

The scheme was a cornerstone of Labour’s 2017 election campaign.

In 2018 and 2019, the performance measure for the scheme – how the Government measured the policy’s success – was: “The percentage increase in first time domestic learners (including industry training) at level 3 and above”.

In other words, how many new students went from high school into tertiary training, or university.

But, according to Budget 2020, that focus has been scrapped in lieu of a purely financial goal.

Documents show the performance measure is now: “Average fees-free payment per learner for first year of education.”

That average fee is “at least $5,759” – meaning the Government rates the performance of the policy a success based on how much money is given out.

This massively expensive election bribe didn’t lead to any increase in enrolments. They promised it would. That was the official measure of success.

So having failed to achieve the goal of the policy, they have given the policy a new goal – the more money we give out, the more successful the policy is deemed!

Bob Jones writes:

I listened to Trump’s speech in full. Frankly it was horrendously alarming, even by Trump’s abominable standards. At times he struck me as verging on insanity.

That he’s a grotesque, psychopathic, ignorant, lying megalomaniac is well established. But this was something different. On two occasions he left even his audience bewildered as he launched into rambling, often incoherent nonsense.

I thought the highlight was Trump demonstrating he can drink a glass of water with one hand, closely followed by his 10 to 15 minutes of rambling defence of why he walked down a ramp slowly.

The Herald reports:

Late last night, the Ministry of Health said 51 of the 55 people granted early leave between June 9 and 16 had not been tested before they left managed isolation.

It had taken more than a week for that question to be answered because an integrated IT system did not exist – but is now being built – and health officials had to match name and date of birth details from their systems with information held at isolation facilities.

The 55 people represent the highest risk because they didn’t complete 14 days of managed isolation before being in the community, and the prerequisite of a negative test before leaving was not observed.

Of the 55, four were tested before leaving managed isolation, and two of the four were tested the day they left, meaning the results were unlikely to have been known when they left.

So basically only two of the 55 released early were known to be safe. Even for this Government, that is a new level of incompetence.

Radio NZ report:

Pressure is mounting on the government and health officials to explain how many people left managed isolation without being tested for Covid-19 since 9 June.

The Opposition leader says it is an absolute shambles and a “national disgrace” that the information is still unavailable a week since it was first asked, despite repeated requests from politicians and the media.

It has been eight days, and they still can’t answer what is the most basic of questions – how many people have left without being tested.

Stuff reports:

The Government has conceded its flagship transport has been put on ice, again.

It had been obvious for months the project was troubled, with coalition partners NZ First openly saying it wouldn’t progress this Parliamentary term.

The Government has now conceded that the project has been axed with Transport Minister Phil Twyford saying it would be kicked back to officials after nearly three years of deliberation.

Auckland Mayor Phil Goff said he was “disappointed” and “frustrated” with the outcome.

This is a huge broken promise. Ardern promised it would be built and working by the end of next year.

The problem wasn’t NZ First. The problem is it took the Beehive geniuses three years to even try and decide the route and the type of rail. Stuff which should have taken three months took three years.

The project was beset by leaks from NZTA, suggesting incompetence and a lack of direction from the Beehive.

More than suggesting incompetence.

Stuff reports:

Arbuckle has been a Marlborough District councillor for 10 years, with three cracks at the mayoralty in that time.

He ran for NZ First in the 2017 general election, but as a late replacement.

This year, after a couple of stints at the party’s “candidates’ college”, he feels better prepared to challenge for the Kaikōura electorate.

I wonder what they teach them at their candidates’ college. Here’s my guesses:

• How to launder money through a foundation
• How to spot an immigrant at 100 yards
• How not to sell policy off too cheaply
• Who is Deputy Leader this week
• Why Vote Racing should be larger than Vote Health
• How to find Wogistan on a map
• How to hire your partner as your electorate agent
• A legal guide to claiming the maximum superannuation entitlement regardless of eligibility
• How to create a fake identity to sign off a poll done by your wife’s polling company
• The best way to sell residency to Chinese businessman
• How to make $156,000 disappear

The BBC has a useful article where they assess the 12 (actually 11) women under consideration to be Joe Biden’s Vice Presidential nominee. They rank them out of five stars for charisma, experience, fundraising ability, voter appeal and their special power (their unique appeal).

I’ve taken their data and tabled it below.

Overall Kamala Harris ranks strongest, which matches the conventional wisdom. I’ve included Michelle Obama as they did, but she doesn’t so I don’t include her in the commentary.

If charisma is most important Abrams and Bottoms are best. But I’m not sure you want a VP candidate more charismatic than the main candidate.

If it is experience then Harris and Warren are tops. This is pretty important as they are the likely presidential candidate in 2024 if they win.

Harris is seen as best with fundraising. Important but 2016 showed the biggest budget doesn’t always win. Also Biden’s campaign is now raising more than Trump’s (but starting a long way back).

If it is simply voter appeal then Demmings, but most people vote for the main candidate not No 2.

So all in all the smart money is on Kamala Harris.

Stuff reports:

Christchurch Central’s Labour MP has accused city leaders of supporting a “1980s-style austerity” budget that will cost thousands of jobs and damage the city for years to come.

Duncan Webb blasted Christchurch City Council on Tuesday for proposing to cut its capital programme by $168 million, and increase rates by just 3.5 per cent instead of the 4.65 per cent, proposed before the Covid-19 crisis.

Families and businesses in Christchurch have had their incomes slashed, and Duncan Webb is complaining that the Council is only putting up rates by 3.5%.

It shows how out of touch some MPs are from the reality of struggling families and businesses.

It also shows economic stupidity. Increasing taxes during a recession actually causes the recession to deepen.

Stuff reports:

The Government has again bowed to fishing industry pressure and refused to extend a marine reserve around Campbell Island, a subantarctic sanctuary recognised for its value in conserving and maintaining unique creatures.

Campbell Island/Motu Ihupuku is uninhabited and is New Zealand’s southern-most island. It is accepted as one of the most pristine places on earth and an important breeding ground for seabirds and marine mammals.

The move has exposed a split between the Green Party and its Government partner Labour over protection of the oceans.

Conservation Minister Eugenie Sage says she backed enlarging the sanctuary. But she was overruled by Fisheries Minister Stuart Nash, who sided with industrial fishing interests.

Once again the Greens get zero. And the Kermadecs have got nowhere also.

The Herald reports:

An Auckland father who admitted bashing his newborn baby repeatedly for the first four months of her life – causing 14 broken bones – has been jailed for more than four years.

Just four years for 14 broken bones?

Patrick Gower writes:

It is time for the Government to stop making excuses and actually test travellers on arrival at the border.

Yes, test for COVID-19 at the actual border and not three days later at hotels as we are now. 

Test people as they come into the country. Don’t just hand them a pamphlet – make them take a test for the disease so those with the coronavirus can be identified as soon as humanly possible.

Then we can separate them from the rest as fast as we can, and isolate and contact trace at the earliest possible point. Results would be back within 24 hours.

Under the current ‘third day test’, people are mixing and mingling until day four. Mixing with each other, with staff, with regular people while out on their exercise.

I agree. Other countries are testing at the actual border. We should have been doing the same since we entered Level 4.

Clearly the Government has decided it is too hard to test at the border. To me, that means the Government is too lazy. It should at the very least be running trials or random testing every second day. 

But as we have seen with the substandard response at the border, the Government probably just can’t be bothered. 

It would be hard to do, but far from impossible.

The Herald reports:

A deal is said to be close to being signed on Auckland’s long-disputed Ihumātao with the Government reported to be about to pay more than $30 million to buy the property from owner Fletcher Living.

1 News has just reported the Government is “closing” on a deal to resolve the dispute over the land occupied for years by Save Our Unique Landscape (Soul) after Prime Minister Jacinda Ardern “became personally involved”. …

1 News said a rōpū whakahaere would be established in the form of a trust or board, comprising Government, Auckland Council and mana whenua representatives. That entity would decide what should happen to the land and whether it is developed or not, it was reported.

Land would be purchased under the Housing Act to avoid clashing with Treaty of Waitangi settlement process.

This does several things:

• Encourages protesters to occupy privately owned land, as the Government will then reward them for it
• Means the Government has destroyed more houses with this move than it has created with Kiwibuild
• Fatally undermined Treaty settlements as full and final by doing an additional Treaty settlement for this land. They may claim it isn’t a Treaty settlement in form, but it is in substance
• Set up a precedent that privately owned land is now fair game and undermines private property rights

This is not the end, but just the beginning of a new chapter.

Radio NZ reports:

He said there were about 2400 people who had left a managed isolation facility but had not had a test, they were now being followed up with, and have either been tested or are being tested.

The original reporter has clarified that 2,400 people left a facility between 9 June (when testing was meant to become mandatory) and 16 June, and the Government is unable to answer the question of how many left without being tested.

So it could be anywhere between 2 and 2,400!

HDPA writes:

The Government’s initial response hints that it did immediately realise the trouble it had on its hands. First, came the appeal directly to the public, bypassing media scrutiny. The evening the news broke, the Prime Minister used a Facebook live event from her office to assure New Zealand her “expectations have not been met”. It took less than 60 seconds for the strength of feeling to become obvious to anyone reading the messages ticking up from the bottom of the screen. “They should never have been allowed in”, “there is no room for trial and error here Jacinda”, “we stayed home for 6 weeks and you let these people in without testing them. Why!!!”, “your team dropped the ball”.

Next, the Prime Minister tried to blame external forces with a they-made-us-do-it finger-pointing exercise, suggesting this would never have happened had commentators and the opposition not kept banging on until she was forced to give compassionate exemptions so new arrivals could say goodbye to their dying loved ones. Shills for the Labour Party took the same line on social media.

Sprinkled throughout were attempts to show Things Were Being Done. The Health Minister banned all further compassionate exemptions. The Prime Minister called in Air Commodore Digby Webb to oversee all border operations but failed to mention he was already involved and she was only giving him an extra job. Director-general of health Ashley Bloomfield banned all transtasman flying without a face mask, as if that might’ve made any difference in this debacle.

This is a simple matter of competence.

The Minister of Health should have been asking probing questions about the quarantine systems in place. You don’t just assume everything is okay.

I would expect there to be a database of incoming arrivals with each person marked where they flew from, their entry day into isolation, the dates of their Covid tests etc. And if you had that, and protocols that no one gets released unless they have had two negative tests, then what happened couldn’t occur.

The Government then failed to foresee the torrent of revelations from within isolation facilities that flowed after that first story of the two long-distance-driving women: multiple accounts of people released without testing, multiple accounts of mixing in isolation facilities, multiple accounts of exemptions granted after exemptions were banned, revelations of travellers absconding from a gang funeral and not being rounded up.

There has been a torrent. I note the PM is not calling some of the claims false, so I guess that is the new tactic.

A reminder for those interested that I have done six electorate race profiles so far. You can see them all at https://www.patreon.com/pollingpolitics/posts?filters%5Btag%5D=electorate%20races

I’ve started from the South with Southland, and working my way North. The next one tomorrow will be Selwyn.

Fran O’Sullivan writes:

Todd Muller has quickly jumped astride the unexpected gift horse that Jacinda Ardern sent him and played himself into being a clear contender for the September 19 election.

Muller was quick to capitalise on the comedy of errors at the border, showing he is not a busted flush after all when it comes to being National’s leader. His stirring speech in Parliament mid-week held the Government to account for the lax quarantine procedures.

Pity that the Government benches had emptied out.

But it was the speech the newbie National leader needed to make to persuade his colleagues that the decision to shaft Simon Bridges as leader — if by a narrow margin — was the right one.

And the quarantine blunders are not going away. Every day there are multiple new stories on them.

Particularly around his pledge that an incoming National-led Government would not raise taxes to pay down the mega-billions of debt the Coalition is borrowing to get New Zealand through the impact of the Covid-19 economic crisis.

National’s plan will be to grow the economy to pay down debt. Labour’s plan will be to tax, tax and tax again.

As at the end of April 2020, the Government has managed 395 Kiwibuild houses.

Their election promise was to have built 5,167 by now, so they have achieved less than 8% of what they promised.

In terms of progress towards their 10 year promise of 100,000 Kiwibuild homes, they are at 0.4%.