Ombudsman ambitions killed off by lack of respect for OIA

Elspeth McLean.
Elspeth McLean.
Any fantasy I might have had about growing up to be an ombudsman vanished when I read last week’s report "Ready or not?", writes Elspeth McLean.

Billed as a report on the public sector, the OIA and the pandemic, it is Chief Ombudsman Peter Boshier’s update on his predecessor Dame Beverley Wakem’s 2015 report, "Not a game of hide and seek". She examined the attitudes, policies, practices and procedures adopted by government agencies generally to establish how well they were complying with the Official Information Act.

Judge Boshier found much to be positive about in the 12 agencies selected for perusal. Overall, he considered the core public service was increasingly transparent and open and agencies were seeing proactive releasing of information as part of their normal business practice.

Among his criticisms, however, was the way media teams were ignoring the law. This is when I realised I could not be an ombudsman. I lack the patience for it. After 40 years of the OIA, I cannot see any excuse for media teams having what he called "a widespread misapprehension that many media information requests don’t fall under the OIA, and that applying the law is difficult and complicated". "These perceptions are false."

It is good to see Judge Boshier will consider this matter further.

What is particularly annoying about the ubiquity of this issue is that I am sure I have not been the only journalist banging on about this for yonks to agencies’ media teams. The obligation to provide information as soon as practicable is often ignored for simple requests in favour of drawn out formal OIA processes. Has there been a wilful blindness to the law in media teams, tolerated by their superiors?

As I have had much to do with the Ministry of Health over the years, I took a closer look at Judge Boshier’s perusal of it.

It was among agencies where media teams were considered in breach of the OIA for not giving grounds for refusing to provide information or advising requesters they could complain to the Ombudsman. (It was all too familiar to hear some media team responses reviewed by Judge Boshier gave information related to the topic without answering the question asked and without acknowledging the request was refused.)

But the ministry, instead of accepting this criticism on the chin and endeavouring to do better, had the misguided chutzpah to tell Judge Boshier "placing the constraints of the OIA" over the work of its media team would add a layer of formality over those relationships and, despite the best endeavours of staff, would add to the time required to respond.

At this point, because I am not an ombudsman, I found myself screaming "BUT IT’S THE LAW!".

The good judge was more measured, of course.

"The OIA is the legislation that underpins the media team’s work, as it underpins any request for information held by the agency. Compliance with the OIA is not a constraint, or an optional extra, or a ‘nice-to-have’ only when the workload is low. It does not matter whether the OIA team, the media team, or any other part of the agency processes a request; it must be handled in accordance with the OIA," he said.

On the question of it adding time to respond, he pointed out the ministry’s media team made a decision in every case about whether and what information to provide. It should take no additional time to make and communicate a correct decision based on the relevant legislation, being the OIA.

He did not accept the layer of formality argument either.

"There is no reason for a difference in the content or tone of their usual interactions, other than to communicate a correct decision. If, as the ministry also asserted in its response to me, reporters are quite aware of the fact that their interactions with the ministry are guided by the OIA, then this should not be jarring or surprising to them."

The Ombudsman found all 12 agencies had gaps with record-keeping and information management systems. Again, the ministry response to his concerns about the poor accessibility of its systems, contrary to the Public Records Act, was tetchy and silly.

One of the ministry’s justifications for thinking the systems were OK was that this issue had not been identified in an Archives New Zealand review, although it turned out this review was from 2014.

The ministry did acknowledge none of the respondents to the staff survey on this were positive about the information management systems.

Hopefully, all the public service will pay close attention to Judge Boshier’s report. Maybe the bodies created under the health reforms could avoid all the issues identified. Sorry, that’s possibly me speaking as a wishful thinker, my new career fantasy.


-Elspeth McLean is a Dunedin writer