Gagging the official information act: why new secrecy clauses are a worry

Thursday, 28 July 2022

In 2019, Stuff first published the Redacted series exploring the problems with the Official Information Act, which. Three years on, we’re revisiting it to see if anything has changed.

The incoming Labour Government pledged to be open and transparent. So why do more than 80 pieces of legislation contain secrecy clauses - including more than new 20 laws introduced since 2019? Andrea Vance reports.

The increasing creep of secrecy clauses in new legislation is allowing officials and politicians to side-step freedom of information laws, campaigners fear.

The Official Information Act makes all government information available to anyone who asks – unless there is an important reason to withhold it. Those reasons are also set out in the 40-year-old law – and include putting national security at risk, or disclosing private information about a person.

If the information is withheld, requesters can take a complaint to the Office of the Ombudsman, an independent officer of Parliament.

However, advocates are increasingly concerned about the amount of legislation which contains secrecy provisions – over-riding the OIA, and the Ombudsman, and preventing the release of information.

And Public Service Minister Chris Hipkins says: “They have a point.” He has asked officials to work on developing more safeguards.

Since 2019, a host of new laws have included such clauses, or existing legislation has been amended to include exemptions to information which should be provided under the OIA. They range across subjects as diverse as infrastructure, tax, climate change and the screen industry.

In the last year alone, a new Civil Aviation Bill – which overhauls and modernises regulation of the industry – included two secrecy provisions. One allowed the minister to place a temporary gagging order while making decisions on applications for international air carriage authorisation. It would be penalised with a hefty fine.

Critics argued requests can already be refused for sensitive commercial information or for confidential advice under existing clauses of the OIA, subject to a public interest test.

The secrecy second clause – now amended by select committee – imposed a catchall secrecy clause which effectively exempted the Civil Aviation Authority from the OIA.

A controversial new law governing the collection of statistics has also come under fire since its introduction late last year.

The Data and Statistics Bill was labelled flawed for supplanting both the OIA and privacy laws. It would create a regime, separate from the OIA, by which researchers might seek permission from the Government Statistician to access data held or collected by Statistics NZ.

Chief Ombudsman Peter Boshier told MPs this part of the bill should be scrapped. The Council for Civil Liberties (NZCCL) said the bill’s provisions are weaker than the OIA, and it increases the powers of the Government Statistician while reducing oversight.

New legislation to increase oversight of Oranga Tamariki has also come under scrutiny. It removes communications between the Ombudsman (which would investigate complaints about OT) and child-support agencies from the scope of the OIA.

The bill also replaces the Children's Commissioner with a new Children and Young People’s Commission. But a second clause requires the commission and its staff to maintain secrecy in respect of all matters that come to their knowledge in the course of any inquiry. Again, this provision overrides the OIA.

Andrew Ecclestone, deputy chair of the Council for Civil Liberties (NZCCL), said secrecy clauses are contrary to the principles of open government.

“A secrecy clause can cover something which prohibits publication of certain information or says certain kinds of information is outside the OIA,” Eccelstone said. “Or it has a different set of tests for disclosure than the ones in the OIA.”

Legislation can also remove a body or fail to include it under the scope of the OIA. Or it may also impose ‘orginator controlled’ – also known as ORCON – which allows the supplier of information to an agency to exercise control over whether it is disclosed.

The OIA already sets out withholding grounds, he said. The secrecy clauses “override these and say effectively: we don't trust the Ombudsman or our own officials to get this right. And that is quite a powerful signal.”

Boshier says secrecy obligations are likely to be justified only in a small number of cases.

“I believe the OIA and LGOIMA should apply as broadly as possible as a general regime guiding official information practices across the public sector,” he told Stuff. “This tried and tested regime balances the competing interests in accessing information held by public agencies.”

Boshier said he should be consulted if exemptions from the OIA or the Local Government Official Information and Meetings Act were being considered. “I have work underway to ensure agencies are aware of my expectations in this area,” he said.

The NZCCL briefed Hipkins on its concerns late last year.

Hipkins told Stuff: “I’ve read the Council for Civil Liberties comments on secrecy clauses in legislation, and they do have a point. There are current safeguards, which include the legislative process, guidelines and the Legislative Design and Advisory Committee.

“I’ve asked my officials, however, for advice to identify what further safeguards might be possible, where appropriate, from an Open Government point of view.”

Hipkins says the subject crosses a number of portfolios, and he’ll be working with Cabinet colleagues.

“It’s the Ministry of Justice’s role, for example, to provide advice on bills that interface with the OIA or the Privacy Act. Many of these clauses relate to protection of third parties’ information, MOJ is responsible for providing advice on that.”

In 2019, Stuff first published the Redacted series exploring the problems with the Official Information Act. Three years on, we’re revisiting it to see if anything has changed.