Hide and Seek: How politicians seek to hide your information away
Source: https://www.stuff.co.nz/news/111130258/-

2019-03-15 00:14:40

Today Stuff launches a project titled Redacted, examining the problems with the Official Information Act. As part of that project, Andrea Vance explores just how bureaucrats, insiders and politicians thwart you seeking the information you are legally entitled to.

In the 1980s political satire Yes, Prime Minister, veteran mandarin Sir Humphrey Appleby has some wily advice for bureaucrats preparing official documents.

The purpose of minutes is not to provide an accurate written record of a meeting but to protect politicians, he explains to guileless colleague Bernard.

"You choose from a jumble of ill-digested ideas, a version which represents the Prime Minister's views as he would, on reflection, have liked them to emerge... You do not take notes if the Prime Minister says something he did not mean to say; particularly if it contradicts something he has said publicly."

The episode first aired more than 30 years ago, when New Zealand's own Official Information Act was just four years old.

But as the Government asks for feedback on the state of the OIA, a Stuff investigation has shown that Sir Humphrey's crafty sentiments are still relevant in today's public service.

Concerned bureaucrats, insiders and politicians have shared some of the tricks and tactics that are used to thwart you seeking the information you are legally entitled to.

The guiding principle of the Act is that information should be made available unless there is good reason for withholding it. The OIA allows us to pester the powerful into telling us what they've been up to.

The Danks committee, whose reports led to the enactment of the OIA, said in 1980: "The fact that the release of certain information may give rise to criticism or embarrassment of the government is not an adequate reason for withholding it from the public."

But today the regime they envisioned is now marked by delays, obstruction and a presumption against releasing documents for fear it trips up ministers or discredits their departments.

WHAT DO THEY DO?

The strategies used to prevent access to the Government's filing cabinet are often simple but sneaky. There are many examples of resistance and avoidance and some rub up against the spirit of openness. Others appear to downright contravene the law.

Officials spoke of being told to change briefing titles to make them appear less interesting to journalists and Opposition MPs.

In one case a weekly update, containing limited information on major projects, was renamed "weekly bullet" to obscure them from disclosure.

Requests are frequently transferred to other agencies, restarting the clock and delaying the request. "That sort of thing happens all the time," one official said.

In another example, one agency deliberately misinterpreted a request from a sitting MP. "It was clumsy wording, but the meaning was clear," an official told us. "I realised then that if this can happen to an MP, then it will happen to anyone."

Stuff has not named the civil servants who provided this information as their jobs would be at risk if they were identified.

Junior staffers are often tasked with handling OIA requests. "They get given to new staff to process because agencies see it as low-value work," one seasoned bureaucrat explained.

"And part of that reasoning is that they are less sure of themselves, and more worried about their advancement and more careful. They will take more direction from senior staff on this stuff and be more likely to withhold."

Training is often minimal. "It's almost non-existent for new staff and involves maybe an hour, at a high level, on the OIA.

"The Ombudsman's guidelines are so good, but no-one ever uses them. It's always a gut feeling - this feels like the clause to use to withhold."

ISN'T IT OUR INFORMATION?

Academics, political researchers and members of the public (along with journalists) will regularly ask ministers for a list of "briefings and reports" that they have received. It's an effective way of learning what is happening in a portfolio and what policies are in the works - but it really seems to chafe.

To stymie such queries, bureaucrats are encouraged to stick to the absolute letter of the inquiry. So, an email asking only for 'briefings and reports' allows them to deliberately exclude memos, aides-memoire, letters and emails.

I ran up against this in January 2017, when I wrote to then-Transport Minister Simon Bridges, asking for: "A list of briefings, by title and date, received from any government departments since July 1 2016, in relation to your role as Minister of Transport."

Within a few days, staff asked that I refine my request to those received from certain departments.

Even then, and despite this being a work-a-day request, the ministry was strangely sensitive.

Two leaked internal memos show the email being discussed by Bridges and former deputy chief executive Andrew Jackson.

One reads: "The Ministry has previously provided advice to the Minister's Office that 'reports and briefings' is interpreted to mean any document that contains a report or a briefing, even if it is labelled by another name (for example a memo or letter).

"However, the Minister's Office does not accept this interpretation and interprets the request to mean only documents specifically called a report or a briefing."

Ultimately, Bridges' office rejected the advice of his officials and insisted on a new practice. His private secretary wrote: "It's clear this is a fishing exercise by requestors.

"The private secretaries are asking for greater care to be taken when considering the briefing titles and advise that they should be pitched at a high level rather than indicating the nature of the proposal or issue.

"This isn't to circumvent the OIA. But there have been instances where briefing titles are too specific and sensitive.

"For example, Options for Moving Maritime Incident Response Funding from Crown-based to Levy-based Funding could be changed to Maritime Incident Response."

The internal staff memo was pasted on the ministry's Intranet, and Stuff understands the guidance is still followed.

Other obstructive policies were put in place under Bridges' tenure. Where there was disagreement between the ministry and Bridges about what information should be released, the request was to be transferred to his office.

If the request was for Cabinet papers, again, Bridges' office would take care of it. Staff were also instructed to withhold details of any unsuccessful bids for Budget funding, to save Bridges' blushes.

Bridges - now leader of the Opposition - isn't the only politician to deploy these swerves.

IT'S NOT JUST BRIDGES

Another former minister confirmed: "How the question is phrased is very important. Departments would come to us and say 'we propose to give this and that as well'. I would say to them: 'hang on, [the requestor] has only asked for this. Only give them exactly what they asked for. Some ministries would say the requester needs to have the wider context. Well, no.

"If I was in Opposition, I suppose I'd say yes. But when you are Government [the view is] that's their problem, that's for them to work out.

"Some departments are a bit too generous - you ask a question and they'll give you the whole lot! Some of the social services ones are a bit like that - I think they are genuinely trying to help - but from a Government perspective that's not that helpful."

The Ombudsman Peter Boshier is our guardian of public information. He accepts that ministers have "a legitimate interest in information that is requested from their department".

But he is likely to take a dim view of some of these ploys. In his guidelines to agencies, he writes: "There may be cases, however, where due to insufficient knowledge a requester has been unable to correctly name the document which he or she is actually seeking. In such cases it may be reasonable for the agency to clarify the request with the requester by identifying the documents that do actually exist."

And in a speech to a "lawyers in government conference" in August 2016, seven months after he took office, he warned: "It would not be appropriate to seek to avoid the application of the OIA by, for example, giving documents bland titles. To do so would be at odds with the purposes behind the OIA as well as being strategically unwise - the most likely result would be more fulsome requests from requesters unable to work out the content of the documents."

These episodes are an unfortunate reminder of what happens when the public's right to know rubs up against the formidable spin machines that sit at the heart of every Government.

It wasn't always like this. When the Official Information Act passed in 1982, it was a watershed moment for democracy.

WHY THE OIA MATTERS

Before then, official information was assumed to be the property of the Government. Now it belongs to us, and the Act says it must be made public unless there is a very good reason to keep it secret.

But the tail end of the 20th century saw the rapid evolution of public relations. New media practitioners  sprang up, and spending on PR budgets sky-rocketed.

Nowadays, every Ministry, department, health board and council has a dedicated team of communications specialists. It's their job to control the flow of information to the public. All too often, the OIA gets in their way.

In the 1990s, the introduction of a 'no surprises' policy by Jenny Shipley's National Government began to erode the Act.

Directors of state-owned enterprises were ordered to keep ministers abreast of anything that might trip them up.

Under Helen Clark, the policy began soaking into other core Crown ministries, agencies and departments. The effect was chilling.

"Everything in Helen's day would go through [chief of staff] Heather [Simpson]," one former Beehive staffer explained. "Even very routine OIA requests, like for example the number of official functions your CEO had attended that year, that would go through Heather and she would run a fine rule over what was asked and what could be held back.

"If she became aware that you had sent out a reply and it hadn't gone through her, you were bollocked."

National staffers report Prime Minister John Key being more "relaxed" about releases - although politically sensitive matters had to be reported to chief of staff Wayne Eagleson.

The release of official information about US billionaire Peter Thiel to New Zealand Herald journalist Matt Nippert was especially scrutinised, for fear it might harm the reputation of Nathan Guy.

As Internal Affairs minister, Guy had made the decision to grant Thiel citizenship after only 12 days in the country.

"Some of us thought the decision was wrong. But, there was broad political pressure to protect Nathan Guy. In this instance the pressure came down from PMO [Key's office] who weren't keen to release [documents]," an insider said.

The Government sought advice from the Ombudsman. "He said he would probably err on the side of release. But he gave us a really interesting piece of advice, that there was a provision in the Act that you can release the information on the condition that it is not cited. I don't think the journalist was wildly happy, but on the other hand he had the inside story."

NO NEED FOR MINISTERS TO GET INVOLVED

Not all Ministers will run a red pen through official information correspondence with the public. There's no need - because politicians and their staff have become adept at keeping meetings and advice 'off the books'.

"What does happen a lot, is the weekly meeting papers will say: 'we will brief you separately on this matter'," an experienced politician revealed. "Here's what that means: there will be no papers for you to request, it will be a verbal briefing.

"On the other side, occasionally ministers will say: 'I don't want any papers on this'. That's for sensitive things, Budget-related matters, sometimes."

Verbal briefings are within the scope of the Act - but are notoriously difficult to obtain information on, especially if you don't know they took place in the first place. Officials talked of providing advice over the phone, so it was harder to trace.

Public servants also self-censor, keeping answers cautious and finding excuses to withhold anything that might prove troublesome to their political masters. Abstruse language is another trick.

"You'd get some pretty anodyne, headline stuff in a written briefing, which you'd have to ask about," the politician said.

"The officials would say: 'what we really meant was this'. It's never said that this is because of the OIA but it's the big secret in the room. If you were ever asked about it you'd give over this paper which was unintelligible."

Stuff also learned of mandarins and politicians engineering casual encounters that couldn't be classed as official meetings, or recorded in the minister's diary.

And politicians have developed other codes. "It is very simple if you boil it down. You can text people, but if it is an official conversation relating to your portfolio or to government business in which you have an interest then you are obliged to report it.

"So, if the PM sends a text: 'I need to see you, how is 3.30 this afternoon?' That is not official information.

"But if the PM says: 'I need to see you to talk about X. My feeling is such and such, can we meet this afternoon' - that is.

"If there is any hint of business being transacted, that's official information. People develop their codes around that."

But again, the Chief Ombudsman has expressly warned against these practices. In the same 2016 speech quoted earlier, he advised recording "all substantive advice".

"Where officials do not record advice, they run the risk of breaching an agency's obligations under the Public Records Act to create and maintain records in accordance with normal prudent business practice.

"They also risk poor decision making, running foul of audit requirements, as well as legal challenge... Any belief that not recording advice avoids OIA obligations is misguided - the OIA applies to all information held by agencies, including that in the heads of officials, and I have the power to subpoena officials to obtain that information where necessary," he said.

EXPLOITATION SURELY?

Andrew Ecclestone has been a freedom of information champion for 25 years, and has worked in the Office of the Ombudsman.

His chief worry is that officials are exploiting a particular clause of the Act, which ensures officials can provide free and frank advice to ministers.

"This is at the heart of all freedom of information laws. The problem comes when Government wants to have a period of what you might call undisturbed consideration of advice.

"The OIA's purposes say it is to enable people to participate in the making and administration of laws and policies. Now, that means that people should be able to participate in policy debates from quite early stages."

Ecclestone is especially worried by an article co-authored by former Chief Executive of the Department of Prime Minister and Cabinet Andrew Kibblewhite and Peter Boshier, and published in Victoria University's Policy Quarterly magazine last year.

It outlined how public servants needed greater certainty about the circumstances under which "free and frank" advice to ministers could be kept confidential.

It also suggested early discussion and advice, including "deliberately provocative" information, should be protected from disclosure.

"The OIA fundamentally shifted New Zealand's democracy from purely representative democracy to participatory democracy. It concerns me that Mr Kibblewhite, the head of the policy profession... said that the early stages of advice that people don't really have a right to know about it. That's not what the law says," Ecclestone said.

"They come at this from the perspective of wanting to provide certainty to Government about how the law, the OIA, will be interpreted. But the point about the OIA is that you have to judge what the public interest is all the way along.

"And there may sometimes be a public interest in disclosure of the early stages of policy advice, in order to facilitate public participation."

Last year, Justice Minister Andrew Little promised a review of the OIA. The government is asking for views on how the Act is working, and whether a review of this legislation is warranted. (So a review before a review).

After heavily criticising National for a lack of transparency when in Opposition, Labour has made efforts to proactively release documents, like Cabinets papers, that people are likely to request. Both the State Services Commission and the Ombudsman are working with agencies to boost compliance. But it's too early to say if this will bring about a genuine culture change.

Ecclestone says an overhaul is long overdue and makes an impassioned case for improving the legislation.

"I care because it is about empowering ordinary people to be involved in the things that affect them - whether it is something as simple as knowing that the food you eat in a restaurant has been prepared in a clean kitchen, or whether the big trucks which you are driving behind on a busy road have been independently and safely checked.

"There is also the fact that in a democracy, if we want to be able to take informed decisions at the ballot box, we need to know what our officials and ministers have been doing or are planning to do.

"And, there is increasing urgency in relation to the challenges we face around climate change and biodiversity. If these problems are going to be fixed government needs to take really quite radical decisions in the next five to ten years - and to do so will involve taking on powerful vested interests.

"The government will only garner public support for these proposals and to take on those vested interests, if it actually shares with the public its concerns and what it is planning to do."

If you want to tell the Government how the Act is working you can do so.

If you'd like to contribute to Stuff's Redacted project please submit via Stuff Nation or email newstips@stuff.co.nz

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