Phil Taylor: Open government: A tough act to follow (NZ)
Phil Taylor: Open government: A tough act to follow 5:00AM Tuesday November 27, 2007 By Phil Taylor New Zealand enjoys a reputation for being relatively corruption-free. This country, with Denmark and Finland, fared best in this year's corruption perceptions index compiled by Transparency International. The Official Information Act, with its purpose of promoting open government, is a significant factor in that. Nicola White, whose book on the Act was released yesterday, found that freedom of information legislation has achieved a great deal. New Zealand government is extremely open and accountable. However, she says that positive picture comes with "a significant but". "Sitting at the heart of this system there are some problems ... and we shouldn't be complacent about the corrosive effect of this building atmosphere of distrust and cynicism about the way in which it works at [the] core political level." She demarcates between information sought, which is local and off the political radar, and what some of those she interviewed referred to as the "political game" the Act is drawn into. "Once you do step into that political world, it's difficult and I think we should take seriously the cynicism that is building around this," White says. Her interest came from working at the Law Commission with Sir Kenneth Keith, one of the architects of the legislation and a champion of open government, and later spending a decade as a public servant in the Beehive during which she did her time processing OIA requests. "I was taken aback by how difficult they were and how much time they take." That led her to wonder why that should be when so many believed deeply in the Act. White, who is Assistant Auditor-General (legal), got the chance to investigate during a stint as a senior research fellow at Victoria University. The book is published by the Institute of Policy Studies, part of the university's School of Government. Although it's called Free and Frank, the book does not suggest the gates guarding information have been thrown wide open. The title comes from provisions in the Act that protect the advice and decision-making processes of government. Among other things, they allow information to be withheld in order to maintain "the free and frank expression of opinions by or to Ministers of the Crown", or between officials. This area has prompted much comment and contention. Many public servants said the Act increased transparency, but one of White's interviewees said "within this organisation ... we tend to lean heavily on those provisions that we can apply to prevent information being released". Several suggested public servants had become more cautious about what they wrote down - as a matter of risk-management and awareness of potential political impact. A bureaucrat said: "The Act seems to have turned into the main battleground of political warfare rather than simply enabling the light of day to be shone on policy decisions." Concerns included that it sometimes negatively affected relations between ministers and officials, inhibited the range of discussion needed under MMP and had created an industry of its own. White found that the Act had fallen behind in an environment where the political battle was over information. Those making requests felt it was being abused in terms of information that was not released, for which there was no effective sanction. Those in government saw manipulation by the Opposition bogging them down with fishing expeditions. There is scope for argument because the Act is difficult and nebulous, says White. It could be argued that refusal to release Cabinet papers until after decisions have been taken is contrary to the Act's intention to promote public participation. On the other hand, people need space to debate and work through issues in confidence, as does any board-type process. Drafts do change. There was a tendency to trawl drafts, note changes and speculate. "What trade-off can you see? What pressure can you infer? You can build big stories out of slim evidence," White says. White didn't come away with an impression about who was winning the information war and, although the book is in parts quite gloomy, she says our culture is "infinitely more open than many other countries". Last week, the refusal of the Australian Government to release Cabinet papers proposing more changes to workplace conditions was upheld. The Seven Network fought a 29-month legal battle to see the papers, but lost on the grounds that publication would lead to speculation of more changes to industrial laws with last Saturday's election pending. White said such a legal fight would be unnecessary in New Zealand, where Cabinet documents were available as a matter of course after decisions were made. But the political interplay is similar. Former prime minister John Howard said the decision was in keeping with the requirement of Cabinet confidentiality, while Labor claimed the documents would have been released if the Howard Government had nothing to hide. Compare that with National MP Tony Ryall's berating of the Government for not releasing Ministry of Justice advice regarding the Electoral Finance Bill. "These papers must be damning," Ryall said. "Why else would their release be stonewalled?" What should and shouldn't be released is a weekly contest that breeds cynicism. "The overarching thing that began to concern me is that building of cynicism and distrust,"White says. "Whatever the rights and wrongs ... it provides an opportunity for a press release that says officials are gaming the system. "For me, that's the fundamental concern. I'm a pointy-headed, noble public servant by training and I think being able to trust the Public Service and the Government is pretty fundamental to healthy citizen-state relationships." More explicit rules are needed, she believes. The Act provides for each request to be judged case by case which, although increasing the prospect "of a finely-grained appropriate response" in each instance, came at a cost of building explicit rules, precedents and common expectation. Responding to a request might involve collating documents, consulting several other departments, the legal team and possibly the minister. "The departmental expectation may be that to get it out in 20 days we will have done OK," White says. "The external expectation may be 'they'll have the stuff sitting on a file ... they would be able to turn it around within five days'. "If you have no way of recognising you are both working to completely different expectations, not surprisingly your requester ends up frustrated and cynical that the information was released right on the 20-day deadline [whereas] the department ends up feeling they've worked like billy-o and are frustrated that all they get is complaints." There is a sharp division among providers over whether the relevant minister should be involved in the process. "There are those who say it's completely inappropriate ... and a camp who say it's deeply constitutionally appropriate, the public service serves the Government of the day and the minister and the department are alter egos," White says. She is in the latter camp. "[It is] perfectly appropriate territory for a minister to be forming a view and for that view to prevail. The Act was designed to give ministers final responsibility for decisions on what information went where." Most information relating to policy processes leading to Cabinet decisions would fall into that camp. If the minister's decision is challenged, the minister has to justify it to the Ombudsman. Life gets complicated if the information withheld turns out to show the minister in a poor light. The views of ministers and their departments do differ, says White, "but you can't withhold information because it makes you look bad". "The art of the system is working out, 'Have I got a legitimate reason or an illegitimate reason [to withhold]?'." It is usually readily apparent when such issues as privacy, commercial sensitivity or legal privilege are involved. "Time and again if you asked people what makes a request go badly, big [volume] and political are your two bad signs." Both may have been factors in an incident that cost an Immigration Service manager his job in 2004. The communications manager was accused of hiding a memo in which he said he'd been let down badly regarding media questions about Algerian refugee Ahmed Zaoui, who at the time was a terror suspect. "Everyone agreed to lie in unison, but all the others caved in and I was the only one left singing the original song," the memo said. The service denied its existence to the National Party and the Ombudsman, but acknowledged its existence after the New Zealand Herald obtained and published a copy. That is an example of the riskiness of putting quips in writing, says White, and a reminder of the vast soup of electronic information. Collating that is an issue taxing those who manage government archives - and another area for dissension. * Free and Frank by Nicola White. Published by the Institute of Policy Studies. Order from www.ips.ac.nz Email this story Pasted from <http://www.nzherald.co.nz/section/466/print.cfm?c_id=466&objectid=10478457&pnum=0>
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