On the eve of legislation to enable vaccination passes being rushed through Parliament under urgency, the Minister has said it will not publish the relevant policy papers until ‘late January 2022.’

The New Zealand Council for Civil Liberties had today finally received a response (PDF) from the Government to its 9 October request for information about the introduction of vaccination certificates. The Minister for Covid-19 Response – also the Minister for Open Government – Chris Hipkins has refused to provide the information requested. The Council sought from the Minister:

• The advice provided on the NZ Bill of Rights Act and Human Rights Act implications of vaccination certificates;
• The advice received from the Privacy Commissioner on the topic;
• The information shared by the government with the events and hospitality sector when it initiated consultation with them in early October; and
• Details about the design of the vaccination certificate scheme.

The Minister’s response listed the following documents as being key to decision making on domestic vaccination certificates:

1. Joint Briefing: Initial advice on the domestic use of COVID-19 vaccination certificates, dated 17 September 2021
2. Joint Briefing: The domestic use of COVID-19 vaccination certificates in high risk settings, dated 24 September 2021
3. Brief Insights Report – Details on different countries’ approaches to domestic COVID-19 vaccine passes, dated 1 October 2021
4. Joint Briefing: COVID-19 vaccine certificates – settings for domestic use, dated 14 October 2021
5. Cabinet Paper: COVID-19 vaccination certificates – implementation in domestic settings [no date given]

The Minister’s response continues:

“I have made the decision to proactively release all decision making documents relating to COVID-19 vaccination certificates, including the above, on the Unite against COVID-19 website (see: covid19.govt.nz). I intend to publish this information by late January 2022.”

The Council’s chairman, Thomas Beagle, described the Minister’s response as “a disgraceful affront to open government and Aotearoa New Zealand’s democracy. It is unacceptable that MPs and the public won’t be able to read these crucial policy documents before considering the legislation to impose the vaccination certificate system.”

Mr Beagle continued, “Ministers have continued to avoid setting out the issues involved in the public health/civil liberties trade-off that vaccination certificates will bring about. The failure to be open and straightforward with the public reflects poorly on a government that likes to boast about high levels of public trust, and how transparent it is.”

The Council notes that not only did the offices of the Prime Minister and Minister for Covid-19 Response miss the fact that the Council had made an OIA request to them (and so replied 3 weeks outside the legal time limit), but the eventual response also fails to comply with the law by not providing any of the OIA’s listed grounds for refusing the request.

The Council infers that the Minister’s intention to publish some of the requested information ‘by late January 2022’ is a refusal under section 18(d) of the OIA, that the information will soon be publicly available. The Council notes that not only does this not count as “soon”, it also notes that the Ombudsman’s guidance on this section says that when refusing under this section the Minister needs to consider:

“Whether, on an objective assessment, the requester needs the information before the planned publication date. Where there is a legitimate reason for urgency—for example, because the requester needs the information to be able to participate in a policy or decision making process on an informed basis—it may be unreasonable to delay release until the planned publication date.”

Mr Beagle said, “It is difficult to think of a situation where there is a greater legitimate reason for making the information available urgently. Section 4 of the OIA specifically says that its purpose is to enable people to effectively participate ‘in the making and administration of laws and policies’, and here we have a Minister – who claims to be a strong champion of open government – thumbing his nose at the law.”

The Council will be lodging an urgent complaint with the Ombudsman about the Minister’s refusal of its request, but holds little hope that the investigation will be completed in time to achieve the effect needed – enabling Members of Parliament to debate the legislation with the information before them.

As Mr Beagle noted when the Council wrote to the Prime Minister and Minister Hipkins, “The government has boasted of its ‘high trust model’ in responding to the pandemic so far. But the decision to require people to show a vaccination certificate to enter businesses, or attend an event, is a major shift away from this. The significant ramifications of the move make it even more important that the government publishes all relevant information immediately. Government secrecy is destructive to public trust in government, at a time when it is needed more than ever.”

References

1. NZCCL’s letter to the PM and Minister for Covid-19 Response is available on its website at: https://nzccl.org.nz/letter-to-pm-and-minister-re-vaccination-certificates/
2. The Minister for Covid-19’s response is available on the NZCCL website at https://nzccl.org.nz/wp-content/uploads/C19OIA2021033-Thomas-Beagle_OIA-response.pdf

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