The Government seems set to expand its proactive release regime – but there are questions about whether it is following the rules it already has in place

Less than a quarter of all Cabinet papers are being proactively released within the Government’s own timeframes, with additional concerns about a lack of record-keeping within ministers’ offices.

The Government is set to reveal an expansion of its proactive release regime, but the National Party says the gaps in its current releases call into question its commitment to greater transparency.

In late 2018, Public Service Minister Chris Hipkins announced the Government would begin to proactively release Cabinet papers within 30 business days of a final decision being made “unless there is good reason not to publish”.

“If we can publish it, we will,” Hipkins said at the time.

A Cabinet Office circular accompanying the decision said of the proactive release of information: “Democracies thrive when citizens trust and participate in their government. Proactive release of information promotes good government and transparency and fosters public trust and confidence in agencies.”

But information provided to the National Party through written parliamentary questions, and assessed by Newsroom, shows both low rates of compliance and poor record-keeping on whether ministers’ offices are adhering to the rules.

Of 1240 papers taken to Cabinet between November 2020 and March 2022, just 538 (or 43 percent) had been recorded as having been proactively released.

Of the papers that had been released, just 247 were reported as being made public within the 30-day timeframe set by the Government (46 percent of those papers which were released, and 20 percent of the overall tally).

While only appointments and honours papers are explicitly excluded from the release policy, ministers have wider leeway to hold back documents than in the Official Information Act as Cabinet material is published “in the interests of transparency, not in response to a request under the act”.

“It’s an old adage that what you don’t measure is hard to manage.”
– Andrew Ecclestone

A complication in understanding compliance is the number of offices failing to accurately keep data on their Cabinet papers (something not required under the policy).

Thirteen ministers did not record how many papers they proactively released for some or all of their portfolios, while 14 kept no information on the average number of days it took them to release their papers.

Kiritapu Allan had taken 13 papers to Cabinet as Emergency Management Minister but released none, while Little had taken an average of 72 days to release papers in his Treaty of Waitangi Negotiations portfolio, and Kris Faafoi 63 days to share those from his role as Justice Minister.

Among the stronger performers, Meka Whaitiri had proactively released 20 of her 21 Cabinet papers in the Customs portfolio, while Nanaia Manuta had shared 26 of her 28 papers as Local Government Minister.

Andrew Ecclestone, an open government researcher and senior associate at Victoria University of Wellington’s Institute for Government Studies, told Newsroom there were risks in drawing conclusions from high-level data, but the numbers showed the need for careful examination of the policy – including the quality of ministerial record-keeping.

“It’s an old adage that what you don’t measure is hard to manage.”

Ecclestone said the mixed performance from ministers also showed the difficulty of implementing the policy without a central repository for the material, while the absence of Cabinet agendas from proactive releases made it harder to understand compliance rates.

The long lead-in time for Cabinet decisions meant some papers would take longer than 30 days to be released given the requirement for a final decision to have been made.

Ecclestone said the Government needed to develop its transparency policies in public rather than behind closed doors, as that would both fit with its membership of the Open Government Partnership and allow those interested in the types of information being released to identify policy flaws.

National public service spokesman Simeon Brown says the Government is falling short on its commitment to open government – but National is yet to formulate its own policy. Photo: Lynn Grieveson

National Party public service spokesman Simeon Brown told Newsroom the “hodgepodge approach” to proactive release of Cabinet papers showed the Government was failing in its promises of transparency.

While it was understandable that some papers would be too sensitive for release, Brown said many ministers were not even collecting relevant data on their compliance, with variation not just between ministers but within different portfolios held by the same minister.

National had not yet decided on the approach it would take to proactive release if it won power, he said, but was considering issues such as the exclusion of proactive releases from the Ombudsman’s purview.

“It’s [proactive release] certainly something we’re looking at and considering, but the reality is this Government said they would be the most open and transparent in New Zealand’s history, and what we see here is another example where they promised something but have failed to deliver.”

In a written statement to Newsroom, Hipkins pointed to the unprecedented nature of the proactive release policy, saying: “The previous government was artful at only receiving the advice it wanted. Even then they were obstructive about releasing it.

“This Government has done a lot better than that, and I routinely proactively release papers, but we need to keep improving and we are making progress.”

There would always be security, legal or commercial reasons that prevented every briefing from being released and which could skew the statistics, Hipkins said.

Newsroom has previously covered repeated delays to a government review of its proactive release policy, originally due in December 2019 and now close to 30 months overdue.

Last week, Stuff reported the Public Service Commission was working on a potential expansion of its proactive release policy to cover almost all advice from agencies, with ministers yet to make a final decision.

While any change is unlikely to be as transformational as that suggested, Hipkins has previously stated a desire to expand the current regime.

Sam Sachdeva is Newsroom's national affairs editor, covering foreign affairs and trade, housing, and other issues of national significance.

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