Access to information a ‘fundamental right’

In the second of Newsroom’s “watchdog” interviews, Shane Cowlishaw speaks to the Ombudsman, Judge Peter Boshier, about his work and why information is essential to democracy.

After sitting down with Judge Peter Boshier, you can tell he is steered by a strong moral compass.

Mental health, prisoners, whistle-blowers, and freedom of information are on his radar and he speaks with a piercing gaze about it all.

As New Zealand’s chief ombudsman, one of his main roles (as an infamous Australian politician once put it) is to “keep the bastards honest”.

Another politician, New Zealand’s own Gerry Brownlee, once warned Boshier to stay within his boundaries.

This left him unfazed - or perhaps even more committed to his approach of drawing attention to unacceptable conduct.

“I am clear that I’ve always worked within my boundaries and always will and the subject of the Minister was inconsequential…most people don’t know what the Minister meant, I certainly don’t.”

They are tough words from a man who has never shied away from a difficult task.

In his previous role as principal Family Court judge, Boshier inherited an institution steeped in secrecy.

But he worked to open up and demystify a court that was generally closed to the public, granting media more access and improving its image.

That approach served him well when he arrived at the Ombudsman’s office in late 2015, as he had inherited a lemon.

Finding an office hamstrung by an avalanche of complaints and processes mired in the past, Boshier realised he needed to make some drastic changes.

That included streamlining the complaints process by taking it digital and trying to solve complaints at the initial stage.

Reducing the backlog was important. The overwhelming workload had lent to a perception of impotency regarding the office, which in turn led to a lack of respect.

Since 2010/11, the Ombudsman’s workload has increased 44 percent.

But last year the office closed 178 more complaints than it received and work began on chomping into those overdue.

This, Boshier says, will herald a new age for the organisation.

What does the Ombudsman do?

The Ombudsman handles a variety of tasks, it turns out.

Firstly, there are the complaints.

Alongside people upset about the Official Information Act (OIA), people can complain about the conduct of state sector agencies.

Prisoners are also regular complainants to the Ombudsman, although Boshier has succeeded in getting “non-big-ticket” complaints dealt with at the source by Corrections.

As he describes it, the Ombudsman’s Office is the final option for many.

“Most importantly, it’s often a place you can come when you’ve tried all else. First of all, it’s a last resort.”

While complaints are a large part of the office’s work, there are other roles.

Whistle-blowers can approach for advice, while the Ombudsman makes sure New Zealand is fulfilling its role under the United Nations Convention on the Rights of Persons with Disabilities.

“I will continue fearlessly to draw attention to conduct that we think is unacceptable and people will continue to react to that by either accepting it, or not.”

They also monitor places of detention, both prisons and mental health units, and have increased the number of inspectors doing so.

Recently the Ombudsman released a report into the use of tie-down beds and restraints in prison.

It wasn’t pretty reading; the five cases included one prisoner who was restrained for 16 hours a day over 37 consecutive nights.

Boshier’s office will undertake follow-up visits to check if the recommendations made have been followed, but he is unwilling to express an opinion.

“I think my role is to draw public attention to the issues…I’ve got to be clear I’m an impartial watchdog, must never be drawn into expressing a point of view but rather making sure people are aware.

“I will continue fearlessly to draw attention to conduct that we think is unacceptable and people will continue to react to that by either accepting it, or not.”

One thing Boshier will comment on is the level of care for those suffering from mental health issues in prison.

It is “not good enough” currently, and he is mulling up an investigation into the situation.

The OIA – a “fundamental right”

Then, of course, there’s the Official Information Act.

Created in the early 1980s as a tool to provide access to information for the public, a version of the OIA is found in most robust democracies across the world.

But recently, New Zealand’s version has become far less useful than it once was.

The Ombudsman is the arbiter of the Act, deciding on complaints about the withholding of information and the tardiness of replies.

Boshier, who describes the OIA as “a fundamental right in democracy”, says a psyche had developed within the public service that the Act was an afterthought.

This is wrong, he says, and that message has been sent loud and clear.

An investigation into the state of mental health care in prisons is being considered. Photo: Shane Cowlishaw

Gaming the system by withholding or delaying the release of information is also unacceptable and Boshier’s latest push is on organisations who wait the full 20 working days before responding.

This is not what the Act specifies and the Ombudsman will take a dim view on those that do so without legitimate reason.

“I’m preaching the gospel that it’s not acceptable if you’ve got the information readily available to leave it to the last minute for release, that’s not what the Act says you can do and if it has been acceptable up to now, it’s no longer.

“My view is if you take this as an election year and an issue is topical it’s wrong for a reply to be delayed to the last minute when the public interest might require a discussion on it then and there, that’s what democracy should be not putting it off as tactics for three weeks and I think our duty will be to draw attention to delay that has been deliberate or tactical.”

The media, the opposition, and the public have their role to play as well, however.

Broad, wide-ranging requests did nothing to help the problem and often contributed to a lack of respect given to the OIA within government departments.

But regardless, Boshier is adamant there has been a “sea change” in how the Act has been viewed.

This has been led from the front by a reduction in the time the Ombudsman took to deal with a complaint.

This, alongside the decision to publish league tables of each agencies performance, has Boshier convinced the OIA will soon have its teeth back.

“I think in Wellington circles now it’s accepted that the culture has changed dramatically and I think everyone knows we now mean business.”

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