The power of the OIA: How the right question makes a difference

Monday, 1 April 2019

Senior reporter Andrea Vance demonstrates how to seek information using the Official Information Act.

OPINION: In 2017, a car was abandoned outside my parents' home in Auckland. My dad tried to get the council to deal with it time and time again, but months went by with no progress.

Finally, after the council had yet again refused to remove the car, and it had been sitting there abandoned for well over six months, I helped my dad make a request for official information. He asked when it was scheduled to be removed.

Miraculously, the car disappeared shortly before the response to his request was due.

Whether you know it or not, the Official Information Act (and its near-identical local government twin, the LGOIMA) makes you powerful.

* What is the OIA, how does it help, and why does it matter?

* The anatomy of (butchered) info request

* Hide and Seek: How politicians seek to hide your info

* No rules for ministers' private emails**

The OIA requires that requests be responded to within 20 working days, unless the agency sends you a formal extension notice before that deadline.

If you ask a government agency for official information, the OIA means it has to answer you, it can't take too long to do it, and it has to give you the information you've asked for unless there is a specific good reason why it should not.

Asking for information is worth doing, and holding the government to account doesn't have to be the sole domain of journalists.

The OIA is very easy to use. In principle, that should mean it's easy to access official information. Sometimes, it is easy.

At lunchtime on a Friday in March, I asked NZTA how many people with driver licences in New Zealand have a 'donor' marker on them, broken down by age group. By 9:30 on Tuesday morning, they had sent me a spreadsheet with all the information I had asked for.

Much of the time, sadly, it is far more difficult. In January 2017, I asked NZ Police to send me its internal policy document for responding to OIA requests. I had seen police responding to others' requests on a website called FYI (which lets you make OIA requests that others can follow) in a way that I thought was inconsistent with the law.

I made sure to be as helpful as I could, referencing related information police had released previously in case the same guidance was still in use. I'd hoped they would respond very quickly. Instead, I received the document at 4:52pm on the day of the legal deadline.

Things get tougher when agencies don't play by the rules. In my time using the OIA, I've had to learn about it in order to know what to do about agencies which try to break the rules.

The OIA requires that requests be responded to within 20 working days, unless the agency sends you a formal extension notice before that deadline.

If a request isn't extended, there is no acceptable excuse for an agency to not send its decision on an OIA request within this time limit.

It doesn't matter if the agency did not see your email for a week, or if the person handling the request went on leave, or anything else. If it does need more time, it has to tell you how much extra time it needs, and tell you within 20 working days of receiving your request. No excuses.

The Ombudsman, who receives complaints about responses to OIA requests, understands this, but there isn't any penalty for agencies breaking the law this way. By the time the Ombudsman has received your complaint, you might have already received a late response. If not, prepare for it to take weeks or months longer.

It can also be frustrating when agencies frequently wait until the last minute to respond, despite the OIA requiring them to respond 'as soon as reasonably practicable'. When I analysed data on how 11 agencies responded to OIA requests during July-December 2017, I saw that almost all of them send a huge proportion of their responses on the due date itself.

It's hard to prove that a specific response was not sent as soon as reasonably practicable. The Ombudsman decided NZ Police's last-minute response to my request for its internal OIA guideline did not break this rule, for example. But there is clearly a larger pattern of disregarding this part of the law.

Dealing with unsuccessful requests gets trickier still when the problem is that the agency has decided to withhold some or all of the information you've asked for.

The OIA lays out a number of acceptable reasons for withholding information, but if you haven't seen the information it can be hard to trust that the agency has made the right decision.

A couple of years ago, I wrote a guide to using the OIA to help others learn from my experience (see oia.nz/) It includes advice on how to make a request, what to expect, and what to do if something goes wrong. If you're looking to make a request for the first time, I hope you find it helpful.

Asking the right question can make a real difference. You can be the one to ask it.

* Mark Hanna is a transparency, justice reform, and anti-pseudoscience activist based in Auckland. As a transparency nerd, he uses the Official Information Act heavily in his activism.