Legal experts and open government advocates are calling on the Government to introduce sanctions for failing to comply with official information laws, after the Stuart Nash saga.
Last week Nash was dismissed from Cabinet by Prime Minister Chris Hipkins after Stuff published details of an email he sent to campaign donors detailing internal Cabinet discussions on a topic where they held a commercial interest (the Government’s commercial rent relief package during the Covid-19 pandemic).
It later emerged that two staff in former prime minister Jacinda Ardern’s office had been made aware of the email’s existence, after it was identified in relation to an Official Information Act (OIA) request in 2021 from Newsroom contributor Pete McKenzie about written correspondence between Nash and his donors.
However, the email was not released to McKenzie, with Nash’s office saying it “[held nothing] that is within the scope of your request as the act relates only to information provided to me as minister”.
Chief Ombudsman Peter Boshier has reopened an investigation into a complaint about the decision to withhold the information, saying he intends to report back as soon as possible.
However, several experts have already said the email should have been released, with some calling for greater penalties to guard against deliberate non-compliance with the law.
University of Otago law professor Andrew Geddis told Newsroom it made no sense for Nash’s office to argue the email had been sent as an MP rather than a minister.
“That would allow Nash to take off his hat as minister, where he learned all the information, where he found out what happened in the Cabinet … put on his hat as an MP and then tell this to people and say, ‘Well, I don’t need to tell anyone about it’.”
Geddis said the case seemed to show “a tendency to go looking for reasons not to disclose information” rather than to release it, with no meaningful punishment if they were later found to have broken the law.
“The worst that will happen to them is the Ombudsman might come along later, tell them they’ve made a mistake and slap their wrists … there’s no mechanism built into governments to punish errors under the Official Information Act, especially systemic errors.”
“While there may not be many prosecutions, the threat of a criminal conviction hanging over the heads of officials will stiffen their resolve in resisting unlawful conduct.”
– Andrew Ecclestone, open government researcher
Geddis said there needed to be greater clarity about when ministers were or weren’t acting in an official capacity, and was also in favour of some potential sanctions for breaching the act.
Knowingly misapplying the OIA could become a criminal offence, although there would need to be proof of intent, while less deliberate but systemic breaches should be counted against senior public servants when they were applying for promotions.
Andrew Ecclestone, an open government researcher and senior associate at Victoria University of Wellington’s Institute for Government Studies, told Newsroom the case was further evidence of the need for major OIA reforms, such as taking responsibility for the act away from the Ombudsman in favour of an Information Commissioner with greater powers to investigate the conduct of ministers’ offices.
Ecclestone said official information laws should also apply to Parliament as an institution, while intentionally acting to frustrate people’s right to information under similar laws was an offence in 72 countries including the UK, Ireland and Canada, leaving New Zealand in the minority.
“It’s time we fixed this because while there may not be many prosecutions, the threat of a criminal conviction hanging over the heads of officials will stiffen their resolve in resisting unlawful conduct,” he said.
Victoria University of Wellington public law lecturer Eddie Clark told Newsroom it was hard to understand the decision to classify the email as out of scope, given the nature of what was being discussed.
“The only way the refusal to release any emails to donors would make sense to me is if officials classified all communications about donors as inherently in Nash’s capacity as an MP.
“[That] could arguably make sense in some circumstances, but here where the email clearly references information he only has in his capacity as a minister, that seems a very long bow to draw.”
Punish ‘knowing and deliberate non-compliance’
Wellington lawyer Graeme Edgeler told Newsroom that even if Nash had emailed the donors in his role as an MP, the fact it “related so closely to Cabinet business” meant it should be seen as a ministerial action.
Edgeler has previously called for the introduction of criminal penalties to punish “knowing and deliberate non-compliance” with the OIA.
“The idea isn’t necessarily to prosecute, but ideally to empower staff to be able to say no to pressure. (And if pressure still comes, to prosecute),” he said in a post on Twitter.
In 2012 and 2017, the Labour Party while in opposition sought to introduce a law change allowing the Ombudsman to charge government departments for OIA delays and breaches.
“This bill, if passed, will allow media to access what they need to keep politicians, public officials and government departments to account,” Labour MP David Parker said in 2017.
However, since coming to power the party has done nothing to put such a change into effect, while repeatedly delaying a promised review of official information laws.