The perverse outcomes of the OIA

A probably unforeseen and unintended, but certainly unfortunate, perverse consequence of the passage of the Official Information Act in 1982 has been that it has made Ministers and government departments more aware of the need to protect official information than before, writes Peter Dunne.

In the old days of the Official Secrets Act there was no issue about how government information should be treated – it was all to be kept secret, and every public servant, however junior, swore an oath upon appointment to that effect.

However, the advent of the Official Information Act potentially changed everything with its brave assumption that all information should be made public, unless there was good reason not to. Since then, the focus of ministers from every political hue and a couple of generations of public servants has been more on finding those "good reasons" and applying them, no matter how silly they might be, or what political consequences they might have, than on the easier release of information. And the time – and patience, no doubt – of many Ombudsmen have been tested and wasted dealing with numerous complaints from frustrated media and (usually opposition) politicians alike, trying to get sensible responses to reasonable requests that have been declined.

The current saga surrounding a letter from Associate Transport Minister Julie Anne Genter to the chronically accident-prone Transport Minister Phil Twyford is the latest example. Once again, the consequences of a ministerial refusal to release information have proven not worth the subsequent embarrassment and turmoil it has caused.

In this instance, the issue at hand relates to the funding of an urban transport package for Greater Wellington, marketed under the catchy but rather banal title, “Let’s Get Wellington Moving”.

It appears that at a critical juncture, Genter wrote to Twyford setting out her views on the package, and her preference for mass transit public transport solutions to be funded ahead of a second tunnel through Mount Victoria to improve the flow of traffic to the airport and Wellington’s eastern suburbs. In addition, the very strong suggestion has been made that the letter also stated that unless the package reflected the associate minister’s preferences, the Greens would leave their confidence and supply agreement with Labour, thus depriving the Government of its majority in Parliament.

Not surprisingly, this latter claim prompted requests under the Official information Act for the letter to be released. Again, unsurprisingly, although quite foolishly as it has turned out, the Greens and the minister refused the request, claiming that the letter was not official information, as it had been written in Genter’s private capacity as a Member of Parliament, not as Associate Minister of Transport.

On the face of it, that was a not unreasonable, if straw-splitting, response, but then Genter admitted in answers to Parliamentary Questions, that the letter had actually been written on her ministerial letterhead, changing its complexion completely. But still the requests for its release were refused. The suspicion grew that the claimed content was probably accurate after all, and that Labour and the Greens were too embarrassed about that to want to see the information made public.

But then it spread beyond the Government when a group of Wellington City Councillors said that they had been briefed by the then Labour Mayor of Wellington that unless the Council accepted the Government’s revised funding offer, it would be withdrawn altogether.

In response, the Mayor denied any such briefing had ever occurred, although he subsequently admitted that informal discussions might have taken place to that effect. All of which raised questions about his credibility, and whether his loyalty was more to his colleagues in central government, than to Wellington city. The row that created of over what he said and whether he had acted more as a government cipher potentially contributed to the sharp swing against him at the election a couple of months later.

Greens co-leader James Shaw, Finance Minister Grant Robertson, then-Wellington Mayor Justin Lester and Transport Minister Phil Twyford at the public release of the "Let's get Wellington Moving" plan in May. Photo: Lynn Grieveson

Meanwhile, the Government was still refusing to release the letter. Eventually the Chief Ombudsman ruled that the letter could be properly withheld, as its release at this point could compromise the free and frank exchange of views between ministers in determining a major policy issue.  But while upholding the original decision not to release the letter, he added the interesting and unusual ruling that a summary of its contents should be released, effectively confirming the original claims about it.

So far, this letter has damaged the credibility of Genter; further tarnished the limited remaining reputation of Twyford; played a significant part in the likely ousting of Mayor Lester (still subject to a potential recount); but not yet delivered one additional cent of transport funding to the Wellington region.

“Let’s Get Wellington Moving” remains as stalled as ever, with the new mayor now saying he wants to reopen the discussion with central government, although it is not clear he will be able to carry his new left-dominated council – that apparently supports Genter’s position – with him. And, while all this carries on, traffic congestion to the airport and eastern suburbs intensifies daily.

So long as ministers seek to deny or delay the release of even the most inconsequential information, as in this instance, frustration and cynicism about the way the release of official information is treated will simply intensify.

At some point, the question whether this saga has been worth it has to be asked. Rather than protecting the exchange of free and frank ideas between ministers in the development of policy, the only issue in this case seems to have been protecting the Government from embarrassment over an injudicious threat from a support party minister. Certainly awkward, but not something to justify withholding material under the Official Information Act.

The irony is that that the three people who stood to have benefited most from keeping it all secret – the ministers and the mayor – have all suffered major hits to their reputations, with no commensurate benefit to the Wellington region. To that end, the whole way this matter has been handled has been utterly counterproductive. The “Let’s Get Wellington Moving” project has to date been a complete disaster at virtually every level.

However, it has to be acknowledged that even if the ministers had not played ducks and drakes over the confidence and supply relationship between their parties, and simply released the letter in full at the time it was first requested, the outcome may not actually have been much different. But, most likely, that would have made the former mayor’s loyalty to his Beehive masters ahead of his city more obvious earlier, probably sealing his fate more strongly. And more importantly, the debate about “Let’s Get Wellington Moving” and the merits of improved mass transit or the second tunnel could have taken place much more transparently, with Wellington citizens being better placed to become involved in the outcome.

But judging the worth of the Official Information Act on outcomes misses the point.

The Act is not there to ensure the best outcomes, but rather the fuller release of official information to the public and interested parties so that they can be better placed to achieve the best outcomes.

The Act is a mechanism for enabling the choices and options available to policy makers to be better scrutinised, and the assumptions behind them understood more fully. And it provides a way of regularising the release of official information, both to hold the executive branch of government to greater account, and to contribute to the wider public discourse. The current heightened public interest in and debate about the operation of the Act shows there is a strong feeling that there is still some way to go to reach those objectives.

So long as ministers seek to deny or delay the release of even the most inconsequential information, as in this instance, frustration and cynicism about the way the release of official information is treated will simply intensify.  Perhaps the ultimate irony is that it is this self-styled “most transparent Government ever” that is fuelling it.   

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