How transparent is this Government, really?

Timely access to the advice that guides political decisions is even more vital during a pandemic, when civil liberties are at stake. By Paul Gorman.

Transparency can be a murky business.

When a mountainous iceberg arrives on the horizon, what you can see is crystal clear. But what lurks invisible below the surface is unknown, except there's probably a lot of it.
It's the same with people, organisations, politics and governments. You see what they want you to see. It's the "you don't know what you don't know" conundrum.

This is what bothers National's shadow attorney-general, Chris Penk, about the televised and livestreamed afternoon Covid-19 conferences. On the one hand, senior members of the Government, often Prime Minister Jacinda Ardern, are talking directly to the public about Covid matters, giving the appearance of transparency and a commitment to open government. On the other, they refuse to release documents and advice on which they have based their wide-reaching decisions, such as alert levels, until time has ticked on and they have become less relevant.

Penk says the early boast of this Government – that it would be "the most open and transparent government ever" – has been a punchline of Beehive jokes since before the resignation of Cabinet minister Clare Curran, whose responsibilities as Associate State Services Minister included open government, after she was caught acting in a non-transparent way. "And things are hardly clearer now."

National's shadow attorney-general, Chris Penk, says the boast of this Government - that it would be "the most open and transparent government ever" - has been a punchline of jokes. Photo / Supplied

Curran's struggles with the issues of transparency were not the usual ones many face of trying to extract information from officials and ministries. Instead, they led to her downfall as a minister after two contentious meetings – the first with then-RNZ journalist Carol Hirschfeld, which she initially failed to disclose, and the second with entrepreneur Derek Handley over his interest in a public service job, a meeting not recorded in her diary and not shared with her staff. In August 2018, Ardern stripped Curran of her open government and digital services portfolios, and about a fortnight later, Curran resigned as a minister.

Political observers say Curran was obviously targeted by the Opposition and that getting the open government portfolio was like being handed a bouquet of barbed wire. If you listen to some, there were also rivals in her own Cabinet wanting her to fail.

There was certainly malicious enjoyment, some from the media, in the irony around transparency causing the minister to fall. There is no love lost between Curran and some journalists as a result. In her valedictory speech in Parliament, she talked about declining trust in the media and took a direct swipe at members of the press gallery, saying, "Politicians should be held accountable, but we are not prey.

"You are not unaccountable, though you act like you are," she said to the gallery. "To be credible, you must turn the mirror on yourselves."

The now-retired Dunedin South MP stands by those comments. She does not want to spill the beans about her time as minister. But she does believe that "politics and transparency aren't friends".

"The media have an uncomfortable relationship with transparency. Because they spend their careers demanding it from politicians, when they get it, it can be a damp squib – it dilutes the importance and significance of information when it's freely made available and isn't the result of digging and being forced to hand it over.

"Modern journalism relies utterly on 'Gotcha!' moments, so transparency and proactive release of information diminishes – in their minds and practice – their ability to turn it into a breaking news story. Plus the proactive release of information is available to all journalists and the public, so it also reduces the exclusive component."

She considers the 1pm Covid-19 briefings "open government at its best".

"It's extraordinary, regular and direct communication unfiltered by media interpretation and commentary. Ditto with the Facebook Live conversations the PM has regularly."

Delays and obfuscation

The Official Information Act 1982 (OIA) and its council cousin, the Local Government Official Information and Meetings Act 1987 (LGOIMA), can seriously raise the blood pressure of anyone trying to get speedy responses from the Government and its ministries. Journalists are often the most vocal in condemning sluggish replies that breach the act. But many others, including researchers, members of the public and politicians, experience the same frustration.

Most journalists have a thick file of OIA requests that have been refused, or delayed so long that the information is no longer newsworthy, or attract responses that include a ludicrous number of redactions.

This is where transparency is failing, with a 40-year-old act open to abuse by officials and ministers determined to obfuscate or cover over the inconvenient and embarrassing.

The "no surprises" policy instigated by the Helen Clark Labour Government has been blamed for the ultra-cautious approach to releasing official information, with mandarins not wanting to be the one to let the cat out of the bag. That, in turn, has fuelled time-consuming "fishing expedition" requests, further slowing the process and responses from government agencies and clogging up the Office of the Ombudsman with complaints.

One of the greatest frustrations is that the maximum 20-working-day timeframe for a reply is often exploited. According to the Ombudsman, agencies are required to make and communicate a decision "as soon as reasonably practicable" and no later than 20 working days.

"This could be as soon as 'immediately' if the information is easy to retrieve and review," the Ombudsman's Office advises. "An agency or council typically should not treat a straightforward, easy-to-answer media information query as 'a formal OIA'."

Press gallery journalist and Newsroom national affairs editor Sam Sachdeva doesn't think the OIA is working. "But I don't think it's the legislation. People talk about reforming or having a review of the OIA, and that would be useful, but I don't know if … a review would find the legislation is shonky.

Public Service Minister Chris Hipkins releases a lot of the briefings he gets proactively. Photo / Mark Mitchell

"Some people I've talked to say it is still surprisingly good in terms of those presumptions of availability and the right to access information. It is more about how ministers' offices and government departments put the Act into effect. It is a very rare exception these days that I get an OIA response back within 20 working days, and even if you do, it is generally on the 20th working day. Rather than using that as a maximum threshold, it becomes a minimum."

Sachdeva thinks the delays are largely due to resourcing and busy officials also having to deal with other information requests, such as parliamentary questions from the Opposition.

Some ministers are more positive about releasing information than others, he says.

"[Public Service Minister] Chris Hipkins has said in the past that just because a minister disagrees with official advice does not mean it should not be released. They should be confident enough to say, 'Sure, officials said that, but we chose not to do it and here's why.'

"The Government talks repeatedly about having a science-driven approach to the pandemic and alert-level decisions, but we had this massive decision to effectively transition away from elimination, and we've got this new roadmap … for Auckland, and that advice hasn't been put out yet.

"The Prime Minister says they release everything proactively, which is broadly true, but that could be two or three months away and there's a very pressing and legitimate interest right now in knowing what that advice said."

Cabinet papers are meant to be released within 30 days, Sachdeva says. "In principle, that is good, but it can be really hard to work out where the information is and how to get it. There's no centralised website or portal to go to – every government department has its own page and takes its own approach to what it will and won't release.

"It's the same with ministers. Hipkins releases a lot of the briefings he gets proactively; other ministers release nothing."

'Proactive release'

Hipkins sees open government as "about strengthening democracy, building trust, and improving well-being" so New Zealanders can understand, contribute to and influence good government.

He disagrees that the transparency portfolio has become less visible since Curran's departure. "Since I took over the role, we've moved forward with proactive release of Cabinet papers, proactive release of ministerial diaries and reforms to strengthen parliamentary processes."

The Public Service Act 2020 "enshrines" the concepts of active citizenship, open government, responsiveness and stewardship, he says.

The release of OIA information "continues to improve", Hipkins says. The 118 agencies completed 27,755 official information requests between January and June this year, a 10% increase in volume on the previous six months.

"About half of these completed 100% of their requests within the legislated timeframe. Overall, 27,150, or 97.8 per cent, of requests were done on time, compared with 97.2 per cent in the June to December 2020 period. In June 2016, it was 91.1 per cent."

According to the Public Service Commission, this compares favourably with Australia's 82.5 per cent of agencies responding on time in 2018-19, the UK's 87 per cent last year and Canada's 67.4 per cent in 2019-20.

Parliamentary Speaker Trevor Mallard is pleased with progress on proactive release, although sometimes these have been "significantly delayed", he says. Photo / Mark Mitchell

In the six months to June, 23 final opinions were made by the Ombudsman against agencies, up from 20 in the previous period – "a good result in the context of a big increase in volume", the commission says.

Parliamentary Speaker Trevor Mallard is pleased with progress on proactive release, although sometimes these have been "significantly delayed", he says.

One of the Speaker's responsibilities is reminding ministers of their obligations when it comes to written parliamentary questions, which are a way for the Opposition to access information more rapidly than via the OIA. "I have, on occasion, been concerned about delays to answering [these], and very occasionally, the quality of responses," Mallard says.

In the past five years, work has accelerated to improve access to democratic systems, he says. Parliament has gone on the road and visited schools from Te Hāpua to Stewart Island/Rakiura, with a lot of material developed, including 3D tours of the building.

Agencies could improve their handling of OIA requests, Mallard says, but the Ombudsman has done a good job in dealing with complaints. "There was, for a time, a significant backlog of these, and I'm pleased with the substantial work that has been done to bring this number down. Successive governments relied on a backlog to avoid focus. That no longer occurs."

He says Covid-19 must not be used as an excuse to get in the way of transparency.

Civil liberties and Covid

National's Penk says it is commendable Mallard is taking Parliament out to the people and believes the proactive-release regime is, superficially, "positive".

"But I've noticed ministers using it as an excuse not to comply with other obligations. For example, I've sought ministerial diaries through written parliamentary questions and been refused on the basis that the diaries will soon be released 'proactively'.

"It's a bit Orwellian to delay fulfilling an existing commitment on the basis that you'll be doing it in a 'proactive' way, instead."

Penk says civil liberties around Covid-19 are being restricted based on advice the Government refuses, or is tardy, to release.

"The intransigence of the Prime Minister when it comes to public-health advice being made available is disturbing. She claims to be making alert-level decisions based on advice that she won't let us see – and then huffs and puffs about disinformation and conspiracy theories. Of course these are going to flourish in an information vacuum."

Prime Minister Jacinda Ardern during a Covid-19 update at the Beehive. Photo / Mark Mitchell

Penk is sceptical of the statistics on OIA responses and says the quality of released information is also important. "While the official statistics may indicate that an OIA response was duly given within the statutory timeframe, that's pretty meaningless when the documents provided are almost entirely redacted.

"The only New Zealanders who benefit from this behaviour are suppliers of toner for printers in the parliamentary precinct."

The News Publishers' Association media freedom committee chair, Miriyana Alexander, head of premium content for the NZ Herald, thinks government agencies and councils working "in the spirit of the law" would resolve a lot of frustrations with the OIA and LGOIMA. Straightforward requests being treated as OIAs, failures to respond by the 20-day deadline and requests repeatedly being moved to other agencies well into the process – "none of that is in the spirit of the law at all", she says.

So, why should the average Kiwi care about transparency? "Open government and transparency are never more important than at a time when our Government is making such critical decisions about how we live in the middle of a global pandemic," Alexander says. "Those decisions traverse health, justice, education and our very liberties and freedoms, and need to be held up to the sunlight.

"Pre-Covid, can you ever imagine a time we'd be told to stay home, or not leave our region, or that some parts of our workforce would need to be vaccinated to keep their jobs? These are the decisions being made all the time right now by government agencies."

The committee met Chief Ombudsman Peter Boshier and shared concerns about the OIA "very frankly", Alexander says. The two groups have developed an easy guide on how to use the Act.

Steps to openness

Journalist Max Rashbrooke, a senior associate with Victoria University of Wellington's Institute for Governance and Policy Studies, says the fact New Zealand scores highly on a lot of international comparisons for transparency partly reflects the fact things are pretty bad in the rest of the world. "You do have to acknowledge that we are not a basket case, an appallingly secretive country, [but there are] a lot of areas where we have got complacent," Rashbrooke says.

Other countries have introduced innovative open government practices, such as citizens' budgets, crowdsourced legislation and citizens' assemblies. "Sometimes, the debate about open government devolves into open data and just publishing information. But providing more opportunity for people to be at the table and make decisions is a much more powerful form of openness."

Publishing ministerial diaries is a good step, Rashbrooke says. "But I think they've gone about it the wrong way. They should have done what Ireland did – it has this great online, easily searchable portal where the onus is on lobbyists and they have to record all their meetings with ministers and MPs and senior civil servants.

"You've still got to keep pushing at that 10% … the dark matter we don't know about.
"The world is changing – people are less deferential, especially the younger generation; people expect more transparency. Current levels are not going to be enough in future."

Andrew Ecclestone, a senior associate at the institute, says secrecy clauses are being slipped into current and pending legislation, including the Civil Aviation Bill and the Data and Statistics Bill, as highlighted by the blogger No Right Turn.

"The moment there are secrecy clauses in other legislation that can override the OIA, the entire framework of the OIA is weakened, as government agencies will always make pleas in secret to be allowed their own secrecy clauses for their 'special' circumstances."

Peter Boshier says we are definitely transparent. Photo / Paul Taylor

Ecclestone says the OIA could have a "notwithstanding" provision that says it is still relevant regardless of other statutes that restrict or prohibit the release of information.

People work for the public service because they want to make the country better, he says. However, government officials are aware that by sharing too much information, they effectively start sharing power, which can make life harder for them.

"But as a democracy we have passed a law that says, 'It's your job to make that job harder, it's your job to share that information.'"

So, are we transparent, translucent or opaque? Ecclestone is inclined towards the middle, blurrier, option.

"We have a Prime Minister with a communications degree. This is a generation of government ministers who learnt from the Blair era in the UK the importance of controlling communications to the political process. We saw this happening under the Clark government, we saw this happening under the John Key and Bill English governments.

"This goes back to the issue that it is easier for governments to deal with accountability downstream, after something has happened, than to share power by sharing information upfront."

Peter Boshier, in contrast, says we are definitely transparent. "New Zealanders have their own cultural view about where they sit in life and they don't like the wool being pulled over their eyes. They react very badly if they feel there is disingenuous release of information.

"Where it works well, we are inclined to be compliant and we buy into it. My example is lockdown Level 4 last year, when the Prime Minister and [Director-General of Health] Ashley Bloomfield did the 1pm update each day and we really had an unprecedented flow of information.

"That is the biggest lesson in transparency achieving for you what you want – and that is for people to trust you and accept your decisions."