FOI Gaming

The New Zealand Chief Ombudsman's December 2015 report Not a game of hide and seek: Report on an investigation into the practices adopted by central government agencies for the purpose of compliance with the Official Information Act 1982 comments

The Official Information Act 1982 (OIA) is a key tool and safeguard in New Zealand’s democracy. The Court of Appeal stated ‘the permeating importance of the Act is such that it is entitled to be ranked as a constitutional measure’. It established the principle that official information held by government agencies shall be made available to the public unless there is good reason for withholding it. It expressly stated that the purposes for doing this were to:

• progressively increase the availability of official information to enable more effective participation, promote accountability and enhance respect for the law and promote the good government of New Zealand; and

• protect official information to the extent consistent with the public interest and the preservation of personal privacy.

My Office was appointed Parliament’s independent watchdog on the operation of the OIA when it was passed on 17 December 1982, and has investigated complaints about government OIA decision-making for almost 33 years. In recent times I have been aware of growing public concern and criticism about practices that were perceived to have developed within government agencies when dealing with requests for information. This has the potential to erode public trust and confidence in both the effective operation of the OIA and the integrity of our democratic institutions.

Over the past year, I have carried out a comprehensive review of the operation of the OIA with the assistance of 12 selected government agencies. I considered how they were led, organised and allocated their resources. I reviewed their policies, systems, practices and I considered the environment in which they operate, and how the public viewed their ability to obtain information from them.

I also considered my Office’s role as Parliament’s independent watchdog on access to information decisions. This review was conducted using my powers under section 13(3) of the Ombudsmen Act 1975 (OA). This provides an Ombudsman with the tools needed to conduct such investigations, but does have two key limitations in the context of the operation of the OIA: the Police are to all intents and purposes excluded from my OA jurisdiction, and I also cannot investigate the actions of Ministers and their officials under this Act. I can, and do, investigate the decisions of the Police and Ministers under the OIA in relation to individual requests for information.

My investigation involved reviewing over 2,500 submissions and survey responses, interviewing approximately 300 officials and requesters, conducting 37 visits to agencies and reviewing thousands of agency records (digital and paper based) and countless academic articles, speeches, research papers, reports, news articles, blogs and tweets about the OIA.

Overall, I found the OIA has caused greater openness and transparency about the plans, work and activities of the Government and increased the ability of the public to participate in the making and administration of New Zealand’s laws and policies. It has also led to greater accountability in the conduct of public affairs. The principle and purposes of the OIA remain sound. I found that most of the time, agencies were compliant in the way they operated the OIA on a daily basis. However, there were five key areas where I found there to be increasing risks and vulnerabilities in the way the OIA was being administered in the current environment. These need to be addressed in order to protect the effectiveness of this constitutional measure, and ensure it achieves its purposes.

Leadership and culture

Achieving the purposes of the OIA depends largely on the attitudes and actions of those in leadership ie, Ministers, chief executives and senior managers within agencies. When it is clear to staff that leaders respond to requests for official information positively and view it as an opportunity to operate in a more transparent, engaging and accountable manner, they will do the same.

I found government agencies were receiving mixed messages from Ministers as to their expectations in terms of compliance with the OIA and more generally with the promotion of openness and accountability and enhanced public engagement. This has enabled doubt and suspicion to grow amongst the public as to whether their requests for access to official information will be treated appropriately and in accordance with the law by Ministers and their agencies. It is important that this is corrected. I found chief executives and officials holding senior leadership positions within agencies did understand their legal obligations and were committed to the principle and purposes of the Act. They understand the benefits to their agency of becoming more open and transparent and some are actively taking steps to ensure they foster such a culture within their organisation by incorporating them into their vision, values and code of conduct. Lack of awareness and understanding at their level would therefore not seem to be a reason for any non-compliance occurring within agencies.

However, over 40% of the current and former government workers who responded to my survey advised that they did not know whether their chief executive or senior managers have a ‘pro-disclosure’ attitude towards the release of information. While many believed that the internal culture of openness and access to information had improved within their agency, there was a distinct lack of bold, visible messaging by agencies’ senior leaders to their staff. I also found many agencies did not have basic information on their websites as to how the public could make a request and the types of information they can ask for.

For most agencies, providing information to the public is still seen mostly as a reactive, operational task rather than a planned strategic intention that will benefit other areas of the agency’s work. Without a strategic framework in place with associated responsibilities and accountabilities at executive level, making requests under OIA remains a key vehicle for the public to obtain access to information about the government’s activities. On one level, this is no bad thing, since people are always likely to want to access information that those working in government have not considered useful or important to publish. But on another, the absence of such frameworks indicates agencies will continue to be concerned with managing demand rather than introducing supply-side improvements that are likely to provide greater value for money in the long run.

I did observe a growing desire within agencies to push more information about their work and activities out into the public domain and assist requesters with providing access to valuable data on a regular basis. Many agencies were routinely publishing a lot of their corporate information, statistics and data voluntarily, although this was quite variable. Some agencies were deliberately choosing to provide more information to requesters than had been asked for. A number of agencies were publishing their responses to OIA requests on their website so that others could also read them. This was primarily done to provide the requester (and the public) with context and prevent misunderstanding or misinterpretation of the information and/or the agency’s activities. These steps were often taken on the advice of the ministerial/political advisor. I found evidence that suggested a small number of ministerial officials were attempting to limit the scope of requests for official information or change an agency’s proposed decision for unwarranted reasons. Such attempts were rejected by agency officials and the final decisions made by the agency were compliant with the OIA. I have alerted the Prime Minister’s office to this type of engagement occurring, and have received an assurance that all Ministers and their staff are reminded regularly of their obligations under the OIA. While I cannot investigate the actions of ministerial/political advisors under the OA, I have strengthened my Office’s investigation processes to ensure that such instances are identified and reported and my Office intends to develop a model protocol for all agencies that will govern their consultations and briefings on OIA requests. Its application in practice will be monitored and reported on publicly by my Office.

The Ministry of Justice and the State Services Commission (SSC) have OIA leadership roles which have not been fully realised. They have ascribed this to a lack of resources and competing priorities. The SSC has provided support to senior officials on an ad-hoc basis and is currently the lead agency for New Zealand’s membership of the Open Government Partnership. The Ministry of Justice has established a practitioners’ forum, developed a number of guides and publishes the Directory of Official Information biennially. However, my investigation has found a number of areas that agencies are currently finding challenging which both SSC and the Ministry of Justice could, and in my view should, provide support, assistance and guidance as an ongoing priority. These include:

• establishing and maintaining effective relationships with Ministers and their advisers whilst also maintaining the independence required to make their own OIA decisions; 

• developing a strategic framework for the proactive disclosure of official information; and 

• providing clear, detailed guidance on the information agencies should be proactively publishing.

Organisation structure, staffing and capability Government agencies have put in place structures and personnel that demonstrate they consider responding to OIA requests is part of their core business. The type of model used to manage OIA requests, and where they were located in an organisation’s structure, had little effect on the agency’s ability to comply with the Act. Each model has benefits and risks which needed to be provided for. Most agencies have set up a separate gateway for the media to make requests for official information. While this demonstrates a willingness to engage and inform journalists about the work of the agency, it also presents risks to the agency in terms of the consistency of decisions (both in terms of content and timing), particularly if agencies do not have either a unified system for logging requests and enquiries, or share their logs or registers of requests and enquiries with the officials who dealt with requests for the same information received via other gateways. In addition, many requests for information were not being counted as OIA requests and were processed and responded to outside the agency’s policies and procedures. As a result, agencies were at risk of not complying with the Act’s requirements or understanding their OIA workload, true compliance rate and resource requirements. The responsibility for making decisions on OIA requests was most commonly delegated to tier 3 managers and above. This had the benefit of successfully leveraging more resources from the agency’s senior leadership team when compliance became problematic and ensuring appropriately senior staff could manage any difficulties or disagreements with the Minister’s office regarding an agency’s proposed response. Most officials assigned OIA responsibilities within an agency had other duties or responsibilities to carry out. While this may meet the government’s expectations of ‘doing more with less’, I found there was an adverse impact on the capacity of an agency to respond to requests ‘as soon as reasonably practicable’ by expecting officials responsible for answering OIA requests to also be responsible for other work as well. This was felt most acutely when an agency did not have resilience arrangements in place for when these staff were absent, had competing priorities arising from their other work or there was a sudden flood of requests that needed to be processed. The level of training provided by agencies to their staff on the OIA varied widely. Most government agencies (79%) did not require their senior managers (who were often the decision makers) to undertake any level of OIA training. Many government workers (60%) who responded to my survey also said they had not received any OIA training from their agency in over four years. Agencies are therefore vulnerable to unintended bad habits embedding into practice and decisions being made that may be out of date with current approaches of the Ombudsman. It can also leave their decision makers vulnerable to undue influence from those working in Ministers’ offices who may wish to limit or change their decision for unwarranted reasons.

Internal policies, procedures and systems

While it is not a legislative requirement, nor an assurance that compliance with the OIA will occur, the Ombudsmen encourage agencies to develop policies and resources to assist staff to meet the requirements of the OIA consistently. They provide a tailored point of reference to assist staff to undertake their role. I found this to be particularly important in an agency where a high volume of OIA work exists, staff turnover is an issue or where the agency is heavily reliant on one or two knowledgeable individuals to respond to OIA requests.

All the agencies examined in our review had readily accessible policies and procedures for staff as to how they expected OIA requests to be handled. The same could not be said for Ministers’ offices, with many simply relying on the OIA itself. The policies and procedures of the 12 selected agencies involved in this investigation were reviewed by my Office for accuracy, relevancy and ease of use and understanding. I found a number of good examples that were suitable for the agency concerned. Most had templates and checklists to assist officials with processing requests and ensuring compliance with the OIA’s legal requirements. However, I found there were gaps and assumptions common in many policies that created vulnerabilities for agencies. These related to:

• the distinction between an OIA request and a Privacy Act request, a section 23 OIA request for a statement of reasons, and a Part 4 request by a company or other corporate body asking for information about themselves;

• the number of extensions an agency can make to the time limit for making a decision on a request; • managing the time limit for transfers;

• the use of personal mobile devices, text messages and personal email accounts;

• what comprises a reasonable search for information;

• the working day count when requests are received electronically; and

• the application of the Cabinet Manual’s ‘no surprises’ principle.

It was universally accepted by all the agencies assisting me with this investigation that effective record-keeping and information management policies and systems are vital enablers for compliance with the OIA. Changes in technology are altering the way officials carry out their work, including how they create, manage and use information. It is also changing the expectations of those seeking access to official information. As a result, most agencies subject to my investigation acknowledged that in respect of their own systems, policies and procedures:

• they were having difficulty keeping pace with the changes and expectations;

• they did not always enable specific information to be identified and accessed easily;

• they still stored their information in shared drives or in an out-dated or inadequate electronic document and records management system; and/or

• they weren’t adequate to support the volume, complexity or breadth of requests for information they sometimes receive.

I found some agencies were in the process of introducing new information management strategies, with supporting governance committees, policies and systems aimed at meeting these challenges. But others were still applying a hands-off, self reliant approach to information management. It was therefore not surprising that agencies advised that one of their most common difficulties in meeting their obligations under the OIA was finding and retrieving the requested information.

Most agencies (78%) had no policies in place for the proactive disclosure of information. As a result, opportunities for publishing information to assist the public’s understanding of an agency’s work (and reduce suspicion or media speculation) were often missed. In the absence of policies around proactive disclosure, there is more of a risk that agencies could release information that:

• contains personal information about an identifiable individual;

• contains commercially sensitive information;

• contains information that was provided to the agency in confidence or is the subject of a confidentiality agreement;

• harms New Zealand’s international relations, the maintenance of the law or would otherwise be withheld if requested under the OIA;

• infringes copyright;

• is defamatory; or

• is redacted so significantly as to change its meaning.

Current practices

Theory is one thing, but the effectiveness of the OIA is largely dependent on the practice of those charged with implementing it on a day-to-day basis within agencies. Most agencies that provided media with a separate gateway to request information were vulnerable to not complying with the OIA if their officials suggested that a request had to be put in writing before it would be processed or they did not provide templates or scripts for officials to use when refusing requests orally or by email. Similarly, officials who may have established relationships with stakeholders such as interest groups are also at risk of failing to comply with the Act by not recognising their OIA obligations when the group seeks information.

I am not convinced that these instances were a deliberate attempt by agencies to avoid their obligations under the OIA. Rather, it is more likely to be an unintentional gap in practice that is more likely to be caused by referring to such requests as media enquiries, or the relevant officials in less public-facing parts of an agency not understanding their obligations. These can be addressed by the provision of policies, templates and training, as well as the clear messages from senior management mentioned earlier. Many agencies complained about the challenges in responding to broad, wide ranging and multiple, frequent requests, yet were reluctant to use the tools in the OIA to manage these. • Many agencies’ policies required that requests for access to official information made by the media, members of parliament, and political party research units should be exempt from charging. The OIA does not provide for such an outright exemption. Agencies are entitled to consider release subject to a reasonable charge as a means of meeting a request for a large amount of information. • Many agencies were not inclined to consult the requester and provide them with assistance to refine their request. • Some agencies were also reluctant to refuse requests on the basis that the information could not be made available without substantial collation and research, even when there seemed to be a reasonable basis for doing so. Instead, most agencies chose to extend the time limit and try to meet the request, or to redefine and interpret the scope of the request by themselves.

Requesters confirmed they often had difficulty articulating their request and found it challenging to refine it appropriately as they didn’t understand how the information was held. Some would occasionally overcompensate for this by sending in multiple, frequent requests which differed only slightly from the other requests they had made. This behaviour could make officials within agencies suspicious of the requester’s motives, particularly if the requester was from the media or a political party, and rather than consult the requester they would sometimes choose to redefine or interpret the scope of the request themselves. While I am satisfied that most of the decision letters I have seen included details of how the request had been interpreted so the requester could challenge the interpretation, this practice makes the agency unnecessarily vulnerable to claims of ‘gaming’ the requester and manipulating the final response to suit a particular purpose.

I explored why there was a reluctance to use the legitimate tools available to agencies in the OIA when dealing with the challenges they were facing. I found current practices were heavily influenced by the current media and political environment agencies believed they operated in.

Officials in agencies reported that they have experienced what they consider to be unfair attacks and inappropriate, misleading reporting by media after responses and official information have been provided. As a result, there was a general perception that many media requests are not driven by a desire to inform the public properly on the activities of the government but rather on obtaining a ‘gotcha’ headline and sensationalising information. The impact of these experiences was not always an increased tendency for agencies to resort to blanket refusals. Rather, agencies had become extremely careful as to how the information should be released, with great consideration often being given as what additional information should be included to provide context and to enable understanding and informed reporting. Some agencies have decided to publish their responses on their website after it is released to the media to mitigate these concerns.

I also found that the political environment in which government agencies operate and make their decisions has had an impact on how responses to OIAs are prepared in practice. MMP Governments often require ongoing consultation and negotiation between coalition partners in order to progress policy and legislative programmes. Ministers now have ministerial/political advisors, whose role is focused on serving the particular Minister and their priorities and agenda. The Cabinet Manual requires agencies to ‘be guided by a “no surprises” principle’ when briefing their Minister on their operations. While there is no requirement in the OIA for agencies to advise their Ministers about requests received and decisions proposed, it does recognise that while the chief executive is the ultimate decision maker, this does not ‘prevent the Chief Executive ... from consulting a Minister ... in relation to the decision [they] propose to make.’

While many requesters find this ability of chief executives to consult their Minister on proposed decisions to be unpalatable, I do not think it is unreasonable for a Minister to want (and expect) to be made aware of requests that could result in them having to deal with a controversial or sensitive issue, such as by way of questions in the House or from the media, if information is released by an agency for which they are responsible. Indeed, it would be naive to expect or require them not to in the MMP environment. It would also be naive to expect officials within agencies to disregard the possible political impact of disclosing information they hold to the public and not advise their Minister. The Minister’s office may be aware of harms or consequences that could result from release of the information of which an agency may not be fully cognisant. Compliance with the OIA does not equate to a requirement that a Minister must be kept unaware of what their agency is doing when it comes to responding to requests for official information.

I reviewed a number of interactions between Ministers’ offices and agencies on OIA requests and interviewed those involved with these consultations to understand and confirm the practice that occurred within agencies. I found this varied considerably and there was not in fact a standard practice (apart from the initial consideration of the OIA request when it was first received as to whether it should be included in the weekly advice to Ministers). The interpretation certain agencies applied to the ‘no surprises’ principle when preparing responses to requests did make them vulnerable to not complying with their legal obligations under the OIA. • Those that believed it required them to seek ‘clearance’ or ‘approval’ from the Minister on the proposed response to requests for official information would be abdicating the chief executive’s responsibilities and accountabilities under the OIA and would therefore be in breach of section 15(4) of the OIA. • Those that provided the Minister with a copy of the proposed response to an OIA under the auspices of an ‘FYI’ or ‘no surprises’ 3-5 days prior to advising the requester of the decision would be in breach of section 15(1) of the OIA as it suggests the agency is delaying the release of a decision it has made.

If an agency genuinely needs to consult the Minister on its proposed response before finalising a decision on a request, it should say so - in its policies, its referrals (eg, consultation email or cover note to the Minister’s office) and its correspondence with the requester. Purporting to do otherwise creates doubt as to who is making the decision and whether the final response is being manipulated for political reasons rather than in accordance with the provisions in the OIA, and suspicion as to whether delays are occurring for tactical reasons (such as to reduce the newsworthiness of the information).

My investigation found that the Minister’s contribution to an agency’s proposed response often resulted in: • enhancements to a proposed response - by encouraging more information about the government’s activities or position on an issue to be released; • queries as to the ground for refusal being relied on being appropriate and suggesting more information could be released than what was being proposed; • quality assurance on the draft refusal letter by including advice to the requester they could seek a review by the Ombudsman about the decision; and • advice being sought as to the media enquiries and communications that would likely follow as a result of release and suggestions as to proactive release of additional information in order to ensure the public were informed appropriately.

However, I also saw evidence of ministerial/political advisors using the opportunity they were given to review the response prior to release under the auspices of an ‘FYI’, to try to convince the agency to change the final decision the agency had made by seeking to: • limit the scope of the request; • alter the decision proposed by the agency; and/or • reduce the additional contextual information the agency proposed to include in the response.

A number of the submissions received also described bitter, confrontational discussions with Ministers and their ministerial/political advisors about certain OIA responses. My investigation found agencies experiencing this type of interaction rejected those demands in the final response, unless they considered them valid to incorporate in their final decision. Other agencies used a number of strategies in order to establish and maintain a healthy, functioning relationship. In all cases, I found agencies understood that the chief executive was the decision-maker, and would be accountable for the decision unless it transferred it to the Minister. None of the chief executives believed it would be career limiting to stand their ground on OIA responses, although some observed that it could make for a difficult and challenging relationship with their Minister.

In principle, I see no reason why a Minister or their advisers should not be informed of any OIA requests agencies are processing at any stage during that process, so long as there is no improper pressure or political manipulation of either the substantive decision or the timing of the delivery of the agency’s response to the requester. The ‘no surprises’ principle is intended to assist orderly government decision-making and enable public trust and confidence by ensuring decision-makers are better informed before making decisions or responding to enquiries and legitimate scrutiny (whether by the media, opposition parties or citizens). However, if it is applied incorrectly by Ministers and their officials, the principle may be misused to defeat the proper operation of the OIA by providing an opportunity for officials to apply improper pressure or political manipulation to either the substantive decision or the timing of the delivery of the agency’s response to the requester.

My Office will develop a model protocol for all agencies that governs their consultations and briefings on OIA requests with Ministers’ offices which: • acknowledges the roles and responsibilities of the Minister and the chief executive with reference to the guidance in the Cabinet Manual; • acknowledges that a ‘no surprises’ principle is expected to operate in the relationship between an agency and its Minister; • makes the distinction between consultations under section 15(5) of the OIA and ‘no surprises’ briefings or referrals; and • requires the outcomes of any consultations to be recorded.

The protocol should be adopted and published by agencies and its application in practice monitored by my Office regularly. It could also form part of a code of conduct for ministerial advisers, which the SSC has indicated it is considering.

Performance monitoring and learning

OIA requests, responses and complaints provide a rich source of information that can be used by agencies to: • ensure consistency in decision-making; • understand what the public and key stakeholders are really interested in (and where proactive release could be used to reduce an agency’s workload); • flag any stakeholder/third party relationship issues that might be occurring; • identify where business units may be struggling or under pressure; • inform management decisions and budget bids regarding internal resource allocation, training needs and system improvement requirements; • flag any compliance issues and gaps in any policies and procedures; and • fast track and inform any Ombudsman investigations and reviews.

However, most agencies had difficulty providing me with information about: • the amount of staff resources they were applying to respond to OIA requests; • the number of requests for official information they received (from all access points); • who their requesters were; • the subject matter of requests; • any consultations involved; • any transfers or extensions of time needed; and • the outcome of decisions on requests.

Those agencies that were capturing information and data about their requests for official information used a variety of methods. The effectiveness of the method used by an agency to track compliance and ensure consistency depends on both the sophistication of the tool itself and from assigning a sufficiently senior and respected official to operate it and monitor the agency’s daily management of requests and who could demand action if the agency was at risk of non-compliance.

I found most agencies had some performance measures for some of their OIA work. They were usually directly linked to the 20 working day maximum time limit for responding to requests. Occasionally demand driven quantity measures were included, but rarely were the quality of responses or proactive disclosures of information measured. I also found some unusual counting practices occurring in some agencies. Most only acknowledged OIA requests that were processed in a certain way and did not include requests for information usually dealt with by their media and communications team or by other staff. Some included their Minister’s OIA requests, responses to Parliamentary questions and ministerial correspondence as part of their own agency’s OIA compliance statistics. Reporting this way means neither the public nor the agency itself is in a position to recognise the true picture of an agency’s capacity and capability to carry out its OIA function.

Record-keeping of agencies’ decisions on OIA requests was very sporadic. I found some agencies recorded neither the decision nor any consultations that occurred during the process. Such practices are likely to be contrary to the requirements of the Public Records Act 2005. Failure to keep a record of decisions makes it difficult for other staff within agencies to locate similar, previous requests, ensure consistency of decisionmaking or justify departure from past responses. It could also inhibit the ability of agencies to adequately explain the basis for the original decision to an Ombudsman. All agencies provided weekly reports to their Minister about some of the OIA requests they received. This included some media requests and some requests from opposition parties and special interest groups where it was considered important for the Minister to be briefed. For many agencies, there was no blanket decision to include all requests by certain requesters in these weekly reports. Rather, it was a discretion exercised by officials within the agency as to what the Minister ought to be briefed on. The level and type of reporting to the agency’s chief executive and senior management about the OIA requests its agency had on hand was not as consistent or regular as their reporting to Ministers on the requests received.

Many requesters were frustrated by my Office’s inability to investigate complaints about decisions of agencies in a timely manner and were concerned that agencies could be factoring into their decision on withholding information the time it would take an Ombudsman to investigate a complaint. The perception that this may be occurring is sufficient to cause a review of my own Office’s practices and ensure its early resolution processes and proactive investigation capabilities are fully realised.

Conclusion

Following a comprehensive examination of how agencies have organised and resourced themselves and currently operate in practice, I am satisfied that agencies are compliant with the OIA most of the time and government officials working within these agencies have a genuine desire to ensure that they are compliant.

My investigation found that both requesters and agencies have perceptions, biases and suspicions arising from past poor experiences. I found most agencies were unaware of the areas where they were vulnerable to non-compliance and were willing to address these where they could, so as to rebuild public trust and confidence in the operation of the OIA by their agency. I found requesters who rely on the effective operation of the OIA within agencies have been confused, frustrated and found it difficult to engage with agencies at times. Many requesters assumed that an agency’s non-compliance or lack of engagement was deliberate and intentional, which then created a spiralling cycle of distrust and suspicion. This has led to increased concern and criticism about how the OIA is operating.

If the OIA is to achieve its purposes and continue to be effective over time, it needs to be used properly by everyone – the media, politicians, researchers, special interest groups and the public, as well as government agencies. Anyone who acts unfairly in either making or responding to a request can contribute to and encourage a chilling effect on how the OIA operates in practice.

Most of my recommendations are couched in general terms and address what I believe are achievable improvements to the way the OIA‘s requirements, principle and purposes are implemented by agencies to assist themselves and the public and correct any misconceptions. It is up to each individual agency to examine its own performance and decide how best to implement these recommendations in light of its own circumstances.

My Office will continue to work with the 12 selected agencies to ensure any areas of vulnerability that may have been identified during the investigation of their particular agency’s practices are addressed appropriately. Other agencies who wish to seek my Office’s assistance are welcome to contact the Ombudsman’s Policy and Professional Practice Advisory Group.

In addition, my Office will be issuing new comprehensive guidance and resources for all agencies to assist them to achieve excellence in their policies, practices, systems, organisation and decision-making. This will include the development of a model protocol for agencies and officials to govern consultations and briefings with their Minister’s office on OIA requests, a maturity model, and a self assessment tool for agencies to measure their compliance and identify any areas of weakness.

It is my Office’s intention to commence a programme of proactively reviewing agencies’ practices against the requirements of the OIA using the own motion powers under the OA and publicly report on these. It will also investigate and report on the performance of the sector overall again, to ensure the public have continuing trust and confidence in this important constitutional measure.

The Ombudsman makes several  recommendations

Leadership and culture

1 The Prime Minister and his Ministers should issue clear, visible statements of their commitment to the principle and purposes of the OIA and their expectations of their agencies to comply with its requirements.

2 Chief executives and senior managers within agencies should review their policies, value statements, code of conduct and mechanisms for communicating to their staff, and ensure they contain clear, visible statements of their expectations that all staff will act consistently with the OIA’s principle, purposes and requirements.

3 Both the SSC and the Ministry of Justice should take steps to fulfil their leadership roles in practice by making it a priority in their work programmes to assist agencies with the challenges they currently face in complying with the OIA and its principle and purposes.

4 The Ministry of Justice should develop guidance for agencies (and consider developing a model publication scheme) on what should be included in the Directory of Official Information that will assist requesters to make effective, targeted OIA requests to agencies.

5 The Ministry of Justice should publish information about the forums it has held, the planned programme of work for future forums, and the guidance it has produced for agencies.

6 All agencies should ensure their websites have a page, no more than one click away from the home page, which provides the public with key information on how to make a request for official information, what the agency’s internal policies and guides on processing OIA requests are, who to contact for assistance, and the information the agency supplies to the Ministry of Justice for inclusion in the Directory of Official Information.

7 Agencies should ensure their strategic plans include increasing the agency’s openness and accessibility of information about its work and activities, and engagement with the public and media.

Organisation structure, staffing and capability

8 Agencies should review their OIA organisational model and ensure any risks are mitigated.

9 Agencies should ensure there is sufficient resilience in their structure to respond to contingencies such as staff absences, departures, and sudden surges in the number of OIA requests.

10 Agencies who have provided a separate gateway for the media to make requests for official information should ensure all officials dealing with OIA requests have access to each others’ logs or registers.

11 Agencies should ensure compliance with the OIA is specifically included in all employees’ job descriptions.

12 Agencies should ensure that compliance with the OIA and information management policies is included in key performance indicators for staff and compliance is monitored and reviewed annually.

13 Agencies should ensure all staff undergo some level of regular OIA and information management training, tailored appropriately for their role in the agency. This includes: • those who are ‘on the frontline’ and receive or process requests; • those who make decisions or recommendations that could affect others which may subsequently result in requests for access to personal information or for the reasons for a decision; and • senior managers with delegations to make OIA decisions.

14 Agencies should publicly report on the OIA training their staff have undergone in the last 3 years.

Internal policies, procedures and resources OIA policies

15 Agencies should review their OIA policies to ensure they provide accurate guidance and sufficient coverage so as to avoid any gaps or incorrect assumptions that could create vulnerabilities in compliance. They should consider seeking the assistance of the Office of the Ombudsman when doing so.

16 Agencies should ensure their interpretation of the ‘no surprises’ principle contained in any OIA policy is not characterised as seeking a clearance or approval by their Minister on an agency’s proposed response to any OIA requests. Information management policies & systems

17 Agencies should develop and implement an information management strategy (that has OIA compliance and public participation needs at its core, alongside other business needs of the agency) and ensure they have a senior manager assigned specific responsibility for its implementation.

18 Agencies should review their information management and record keeping policies to ensure they include guidance on managing emails and text messages created and received for business purposes, regardless of whether they are held on an agency-owned or a personal device.

19 Agencies should review their information management systems to ensure they are adequate to meet the needs of the business, including the need to search for and retrieve records efficiently in order to deal with requests made under the OIA.

20 Agencies should provide regular training to staff on information management and record keeping policies and monitor compliance with these policies.

21 Agencies should have redaction software to assist them with preparing information for release in formats enabling easy reuse of the information.

Proactive release policies

22 Agencies should ensure they have a comprehensive policy concerning the proactive release of information they hold, which includes how to maximise the benefits of proactive release while also managing risks that may arise from the release of certain types of information.

Tools and resources

23 Agencies should review their websites and ensure these contain accessible guidance for requesters to assist them when making requests for official information.

24 Agencies should develop tools and resources for requesters to assist them to make focused requests for official information.

25 My Office should provide requesters with training, support and guidance in how to make requests for official information effectively. 26 The Ministry of Justice and the SSC should champion the development of tools and resources by agencies to assist requesters.

Current practices

27 Agencies should review their practices to ensure that the identity of the requester, their mode of engagement, or any practices do not impinge on the requirements to make a decision that is appropriate under the OIA and communicate it to the requester ‘as soon as reasonably practicable’.

28 Agencies should ensure consultation with requesters takes place at an early stage to identify the information being sought or before refusing to make information available because of the collation and research challenges.

29 Agencies should review their charging policies to ensure that they do not exempt certain types of requesters from the application of the OIA’s provisions.

30 The Ministry of Justice should review and update its charging guidelines.

31 The Ministry of Justice, in collaboration with the SSC and Archives New Zealand, should develop a model information search policy for agencies to apply.

32 Agencies should publish their OIA policies including how they interpret the ‘no surprises’ principle and record how they apply this to individual requests.

33 My Office should develop and publish a model protocol on agencies’ consultations and briefings on OIA requests with Ministers’ offices, and monitor its application. The development of this protocol should be done in consultation with the SSC, Cabinet Office, Department of Prime Minister and Cabinet and the Ministry of Justice.

34 The SSC should consider how this model protocol may be linked to a Code of Conduct for ministerial officials/political advisors.

35 Agencies should review their policies and tools available for staff to ensure they capture the legal requirements for responding to requests for information that may be received and replied to via email or by phone.

36 Agencies should strengthen their procedures for considering, documenting and explaining to requesters the public interest factors considered when making a decision whether or not to withhold information under section 9 of the OIA.

Performance monitoring and learning

37 My Office, in consultation with the Ministry of Justice and the SSC, should develop a suite of performance measures for agencies to apply to their official information activities (including proactive disclosures).

38 Agencies should ensure they are counting their OIA workload and compliance rates accurately.

39 Agencies should separately report on their Minister’s OIAs or PQs or ministerial correspondence rather than in the one performance measure. 40 Agencies should ensure they have a fit for purpose OIA logging and tracking system which is easy to use and actively monitored.

41 Agencies should record the final decision on an OIA request and if it is to refuse, the basis for that decision, including the outcome of any consultations involved.

42 Agencies should ensure their chief executive and senior leadership team receive regular reporting on compliance capabilities in handling OIA requests, apparent themes or trends in the requests being received, sensitive issues and proactive disclosures.

43 Agencies should ensure any Ombudsman decisions are shared and discussed openly with OIA practitioners in the agency.

44 My Office should work with agencies to develop a standardised model for data collection of OIA requests to enable high quality analysis and compliance.

45 My Office should ensure its early resolution process is implemented and works effectively for the majority of official information complaints we receive. 46 My Office should provide updated OIA guidance to agencies, and continue to provide training and assistance to agencies in developing OIA policies and procedures.

47 My Office should develop a maturity model and associated resources based on the findings from this investigation to enable agencies to self-assess performance and capabilities.

48 My Office should conduct regular own-motion investigations into agencies’ OIA compliance and practices and report publicly.