Local councils might be handing over sensitive information that threatens New Zealand’s national security and defence because the law obliges them to.
The Government’s spy agencies, the NZSIS and the GCSB identified a “gap” in the law after talking to councils. The Government is moving to close the gap by passing an amendment to the Local Government Official Information and Meetings Act (LGOIMA), councils’ version of the Official Information Act (OIA).
A regulatory impact statement published with the bill notes that the spy agencies noticed LGOIMA “does not currently provide conclusive withholding grounds for information that would likely prejudice the security or defence of New Zealand or the international relations of the government of New Zealand”.
They warned that this gap “increases the risk of information being disclosed that could prejudice New Zealand’s security or defence or the international relations of the Government of New Zealand”.
The gap does not exist in the OIA, which has more extensive withholding grounds. This is because when the LGOIMA was drawn up it was not thought that “OIA withholding grounds related to security, defence, or diplomacy to be relevant to local authorities”.
The spy agencies said that given the elevated risk of foreign interference in New Zealand, they wanted to co-operate more with local councils and share information to shore up councils.
However they were prevented from doing this because they feared this highly sensitive information might be released under LGOIMA. The statement warned the gap limited the “scope of the intelligence agencies’ engagement with local authorities and their ability to advise on specific foreign interference risks”.
Associate Local Government Minister Kieran McAnulty, who is responsible for the bill that will close the gap, said he was not aware of any instance of sensitive information being sent out under LGOIMA.
“I’m not aware of instances where security sensitive information was sent out through LGOIMA. The amendment to the bill was based on advice that the current lack of withholding grounds is preventing agencies from talking to local authorities in the first place, rather than instances of released information,” McAnulty said.
The proposed changes would “align the Act with the OIA and allow the intelligence agencies to share sensitive information with councils to help them manage security risks, including cyber threats and foreign interference.”
Foreign interference in local government has been raised as a concern in the last few years.
The Justice Committee’s inquiry into the 2019 Local Elections warned of foreign interference in elections. The final report of that committee, citing Professor Anne-Marie Brady warned that “[l]ocal authorities can be a strategic target for foreign interference due to the influence that local government has over planning decisions, including over water rights and land use”.
In a joint submission to the Justice Select Committee inquiry into the 2016 Local Elections and 2017 General Election, the director-generals of the NZSIS and GCSB warned: “Motivated state actors will work assiduously over many years, including in New Zealand, to covertly garner influence, access and leverage.”
They said they had also “seen relationship building and donation activity by state actors and their proxies” at the local government level.
What the Government plans to do is to expand the LGOIMA grounds for withholding information under the Act.
Once passed, councils will be able to withhold information if it “would be likely to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand outweighs the impacts on the availability of information”.
The regulatory impact statement said this will “allow the intelligence agencies to expand their outreach and shared information with local authorities regarding specific sources of risk”.
“It will also allow local authorities to proactively seek assistance regarding security issues without the risk that the information could be released”.
Officials warned that the proposal would result in less availability of official information. It said this was a “trade-off” the Government was making in “protecting New Zealanders from risks to their safety”.
The proposal came about as a result of a cross-government work programme on foreign interference. Details of what this work programme has recommended were heavily redacted.
McAnulty said that ensuring the new withholding grounds were not abused by councils to withhold information was a responsibility of the Ombudsman.
“The responsibility for investigating and reviewing any decision by a local authority to refuse information under LGOIMA sits with the Ombudsman. I expect all councils to act in good faith and to engage with the Ombudsman if any issues arise.”