Survey finds inconsistent compliance with OIA

A survey at the highest levels of government has found that compliance with the Official Information Act is not consistent across the board.

Dr Edward Willis, a senior lecturer at the University of Auckland’s Faculty of Law, and research assistant Gwen Hamilton, requested information from 26 Ministers about their decisions to withhold requested information on specific grounds over a three-month period between 1 April 2021 to 30 June 2021.

The request focused on refusals to supply information under section 18(d) of the Official Information Act (OIA), which provides that a request for information may be refused on the basis that the information requested is, or will soon be, publicly available.

Overall, says Dr Willis, the survey revealed some concerning practices - there was considerable variation in the timeliness of responses, with several Ministers failing to meet deadlines and two ministerial offices providing no substantive response at all.

“The inconsistency among ministerial offices in the responses to the request suggests that a culture of compliance with the Act has not fully developed. This is potentially of significant concern and should be investigated further as part of any reform proposals,” says Dr Willis.

“The responses we received suggest that Ministers are generally alive to the expectations and issues related to the proactive disclosure of information. However, responses also showed some concerning timelines regarding the subsequent release of information withheld under section 18(d), as some information had still not been released eight months after the request had been made.”

Dr Willis and his research assistant focused on section 18(d) for two reasons. The first was their anecdotal impression that requested information is often withheld under this ground but not released within an appropriate timeframe.

“The second reason for our focus on section 18(d) is that proactive disclosure is an area for possible reform under any review of the Act. Governments around the world now generate and store much greater amounts of information and proactively release more of that information more often. We wanted to determine, in a preliminary way, whether practices around proactive release might be a cause for concern,” Willis writes in his forthcoming paper A survey of ministerial compliance with the Official Information Act 1982.

Both compliance with Dr Willis’ standardised request and the information supplied in response to his OIA requests support the perception that compliance with the Act is variable, according to the soon-to-be-published paper.

Willis is quick to point out that the survey was limited - 26 requests from the 26 Ministers were examined. He says the results are not conclusive, although they do raise questions.

Meanwhile, an aspect of government practice that the survey unexpectedly revealed was inconsistency in record keeping among ministerial offices.

This is despite the Public Records Act 2005 requiring that ministerial offices create and maintain full and accurate records of their affairs that are accessible for subsequent reference.

“We were surprised to find that some ministerial offices refused to supply information we requested on the basis that the information was inaccessible, not retained, or did not exist when other ministerial offices did provide the equivalent information.”

Willis says the relationship between the Official Information Act and the Public Records Act is an important one for ensuring that requested information can be made available.

“Again, compliance at the ministerial level appears to be variable based on the responses we received. This may be an area that requires further consideration if reform proposals for the 40-year-old Act are seriously contemplated.”