The Government has copped flak for an overly secretive approach to addressing the use of secrecy clauses, as it still considers when and how to move ahead with a broader review of the Official Information Act.
In 2021, the New Zealand Council for Civil Liberties wrote to the then-public service minister Chris Hipkins expressing concern about the proliferation of so-called “secrecy clauses” in legislation. More than 85 clauses now exist in various pieces of legislation that exempt certain information held by official authorities from the OIA’s disclosure requirements.
While the council asked for a review of existing secrecy clauses, removing those deemed unnecessary, the last government instead included a more narrow commitment to strengthen the future scrutiny of such clauses in its latest Open Government Partnership action plan.
The Ministry of Justice, tasked with overseeing the work, chose to carry out a “targeted engagement” process with just five organisations: Environment and Conservation Organisations of NZ, the Taxpayers Union, Transparency International NZ, Trust Democracy, and the council itself.
The council’s deputy chairman Andrew Ecclestone told Newsroom he was concerned by the ministry’s decision to seek feedback from such a limited number of groups, which went against his organisation’s recommendation for wider consultation given the public interest at stake.
“How laws get drafted and how claims for secrecy that override the OIA might be scrutinised is a matter of public policy, and in principle, the Government should be consulting the public when it’s doing work on issues that affect public policy development.”
The council objected in principle to secrecy clauses exempting agencies from the OIA, given the legislation guaranteed the public’s right to information held by authorities.
“It should be the legal framework for determining whether information is made available to us or not, because it has an independent regulator who can scrutinise claims for secrecy,” he said, referring to the Ombudsman’s Office.
“When other legislation contains secrecy clauses that override the OIA, they remove not just the information or the agency from the scope of the OIA, but they also remove the Ombudsman’s ability to scrutinise these claims for secrecy.”
Chief Ombudsman Peter Boshier has previously expressed concern about the insertion of such clauses into legislation, telling Stuff he expected to be consulted if any such exemptions were being considered for new bills.
The Free Speech Union has also expressed alarm with the ministry’s failure to consult more widely on its work, with chief executive Jonathan Ayling saying the process needed to be opened to the public.
“The OIA needs to be a reliable resource for New Zealanders to ensure their participation in a functioning democracy. It should simply be assumed that the public is consulted when changes are proposed related to public transparency,” Ayling said.
The ministry’s general manager for civil and constitutional policy Kathy Brightwell told Newsroom the civil society organisations had been involved since work began on strengthening the scrutiny of such clauses, and were selected for the targeted engagement process “given their involvement, background, and interest in this work”.
Brightwell said the ministry “expect[ed] that civil society organisations will involve their wider networks as part of their input to the engagement process”, and welcomed feedback from other interested parties.
Concern about the ministry’s approach comes as the Government prepares to fulfil a pre-election promise and carry out a broader review of how the OIA functions.
In mid-2022, Paul Goldsmith – then National’s justice spokesman – told Stuff that ministers’ “very sanctimonious talk” about transparency contrasted with the actual experience, and that it was good practice to review and renew laws.
“As a general rule, greater transparency leads to better decisions and outcomes, ultimately, because it enables a fully informed debate,” Goldsmith said at the time.
The Labour Party made a similar promise to review the OIA before it came into government in 2017 but never followed through. In 2020, then-justice minister Andrew Little told Stuff a “rewrite” of the OIA would take place – only for his successor Kris Faafoi to sign off on a deferral of the work the following year due to other policy priorities.
Ecclestone told Newsroom the council still felt a review of the OIA was necessary, but did not feel the Ministry of Justice was the right body to carry out the work, given it had not been meeting enough of its responsibilities under the act at present.
The independent electoral review provided a more appropriate model for the Government to use when it came to scrutinising the act, he said, while it should also consult with the public itself on the terms of reference for a review.
Goldsmith told Newsroom it was “still the Government’s intention to consider the OIA legislation, however timing is yet to be considered”.
“Our focus is currently on our 100-day plan and coalition commitments around restoring justice.”
He did not answer a question about whether he would be comfortable with the Ministry of Justice leading an eventual review.
