The opaque transparency of the OIA system


The latest revelations in the Stuart Nash saga extend Chris Hipkins’ political headache but also spotlight the lack of transparency on freedom of information decisions, Marc Daalder writes

Analysis: For Chris Hipkins, Stuart Nash’s many and varied indiscretions are the headache that just won’t stop.

We’re now more than two weeks on from the start of the saga, when Nash boasted about a breach of the Cabinet Manual (discussing operational matters with the Police Commissioner) on a radio show.

The latest revelations mean the story is sure to keep going well into next week too.

The “inexcusable” email revealing confidential Cabinet deliberations to two of Nash’s donors was, it turns out, first spotted by Nash’s office and then-Prime Minister Jacinda Ardern’s office back in 2021.

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It was surfaced in the process of responding to an Official Information Act (OIA) request from Newsroom contributor Pete McKenzie for all correspondence between Nash and 19 of his donors. At the time it was withheld for being “out of scope”, with Nash arguing it was sent in his capacity as a Labour Party MP rather than his capacity as a minister.

MPs acting in their political roles are not subject to the OIA. However, Nash was only involved in the Cabinet discussions referenced in the email in his role as a minister. It’s hard to see the case for withholding it as out of scope

Amidst the deliberations over whether to release the email, it was referred to Ardern’s office, a spokesperson for Hipkins said on Thursday. Two staff members in the PM’s office, including deputy chief of staff Holly Donald, viewed it. Neither recognised its significance at the time, the spokesperson said, nor did they escalate it to the chief of staff or to Ardern.

National has seized on the appearance of a “cover-up”, arguing the Government knew the email was sensitive and broke the OIA in order to avoid releasing it. That adds a further unsavoury element to the Nash story, when intimations of improper influence have already been made in regard to the correspondence with donors who had a financial stake in the issue.

Hipkins is to some extent insulated from the damage because he wasn’t the prime minister when the OIA came in. But he’s the Prime Minister now and discussions of alleged cover-ups and corruption in relation to his Government will still tarnish his reputation.

Moreover, while Hipkins didn’t have responsibility for the issue as prime minister, he was the minister in charge of the Open Government Plan, seeking to increase government transparency and improve compliance with the law.

It’s embarrassing that such a high-profile apparent OIA breach occurred under his nominal watch.

The breach also offers a peek behind the curtain at how contentious Official Information Act responses may be redacted or suppressed.

We know breaches of the OIA are quite commonplace. Hipkins himself was criticised by the Ombudsman in a recent ruling over an “unacceptable” delay in responding to a request from Newsroom when he was police minister.

“I have formed the final opinion that there has been a failure to meet the requirements imposed by the OIA,” Chief Ombudsman Peter Boshier told Newsroom in a letter.

“I have accordingly written to the former Minister of Police, now Prime Minister, drawing attention to the requirement for timeliness and indicating that I will be monitoring and, as part of my overview of OIA performance, reporting on and drawing public attention to cases where there is demonstrable non-compliance.”

The most visible breaches are ones like this, where the deadlines under the law have clearly not been met.

It’s much harder to tell how common breaches like Nash’s are, by virtue of the secrecy that shrouds the behind-the-scenes processing of requests. We don’t know why Nash’s office felt it necessary to refer the emails to Ardern’s office three separate times. In fact, everything we do know comes solely as a result of the leak of that email to the media – the Official Information Act in this instance failed to reveal the original controversy or the breach of the act.

In theory, requestors could ask the Ombudsman to investigate every such refusal over concern that information is being improperly withheld. Sometimes that works out, as in 2021 when the police were found to have extended the deadline to a request in order to give themselves more time to develop a policy they had previously claimed was already finalised.

But there are systemic barriers to this approach. To begin with, the Ombudsman’s office has limited resources. Even simple delay complaints like the one made by Newsroom against Hipkins can take months to sort out. Newsroom made the complaint mentioned above on August 18 and only received a final response seven months later, on March 24.

More substantive complaints can literally take years. One outstanding complaint by Newsroom, relating to Covid-19 vaccine contracts, was submitted on August 31, 2021 and still hasn’t been concluded.

McKenzie himself complained about Nash’s refusal of his June 8 request, but abandoned the process in May the next year.

These systemic flaws in the official information system mean we still have no idea how common it is to improperly withhold information as Nash may have done, with ministers’ offices and government departments relying on the sluggishness and opacity of the process to get away with it.