Outgoing Chief Ombudsman Peter Boshier says stiffer penalties may be needed for government agencies that persistently delay the release of official information.

Mr Boshier has today released a report about his reflections over the past nine years, on the Official Information Act 1982, along with separate investigations into seven agencies, and two new case notes.

"I want to give New Zealanders the big picture as I leave office. As Ombudsman I have a unique insight which is valuable. About 14,000 OIA complaints have come across my desk since I started as Chief Ombudsman in late 2015. I have also conducted 37 proactive investigations into how agencies manage OIA requests. My experience hasn’t altered my view on the OIA: I still believe it is fundamentally sound and has stood the test of time.

"The real issues are not with the law. They centre on ‘culture’ and that involves trust, behaviour and leadership. Bad behaviour undermines the OIA. The Act’s not the problem-it’s the attitude that needs to change."

Mr Boshier says agencies need to commit to developing a culture where OIA work is given priority and it is valued by staff throughout their organisation. He says while there have been significant improvements, much more can be done.

"For example, I see far too many agencies taking a defensive approach to OIA requests. This attitude can lead to misbehaviour. I believe where problem behaviour exists, even after all the levers provided in the legislation have been applied to their fullest extent, additional incentives and sanctions against offending agencies may be needed.

"Another area that has become worrying is some agencies’ commitment to record-keeping. Good record keeping is a legal requirement under the Public Records Act 2005. Official information must be not only retained but be able to be retrieved. I have sometimes heard that public officials are pressured to avoid creating records for ‘fear of them being OIA-d’. This is wrong. I believe this is an area of the law that needs strengthening."

Mr Boshier says it’s not just agencies that need to lift their game.

"I have real concerns about how a small number of requesters are using the OIA irresponsibly, for example, by submitting requests that are vexatious, frivolous, or too large.

"This places a huge burden on responders and frustrates the entire OIA process.

"Requesters should always be careful that when they make requests, they don’t undermine the very system that allows them to access information."

Mr Boshier says another issue is the length of time requesters need to wait before they get a decision from an agency on the information they’ve requested.

"Today I have also published the findings of my investigation into how seven agencies dealt with timeliness.

"I didn’t find evidence of deliberate attempts to slow things down but I did see, in all but one of the seven agencies, practices that were contributing to delays.

"The majority had strong leadership and were committed to sound OIA handling, but there were still some that didn’t have a high-level strategy for meeting their OIA obligations. This should be a priority.

"Health New Zealand is of particular concern. I regret to say that I have found on a number of occasions that it is not always following the letter and spirit of the law.

"For a relatively new agency, Health NZ is generating an increasing number of complaints, mostly about the time it takes to make a decision, or its refusal to release parts or all of the requested information. Health NZ’s record management, especially its inability to retrieve regional records, is an underlying factor. Two case notes that I have also released today, identify significant concerns with Health NZ’s delays and administrative processes.

"Finally, I am increasingly concerned at legislative ‘carve-outs’ where other Acts are amended to avoid the need to comply with the OIA. This happens where there is a perceived lack of adequate protection around, for example, private and commercially sensitive information. I firmly believe carve-outs are not necessary. The OIA as it stands protects any such interests and initiatives."

Mr Boshier says a collective effort is needed to make the OIA work.

"It is very clear to me that everyone working with the OIA must make it a priority to safeguard this vitally important piece of legislation. It is a commitment that is fundamental to democracy and freedom in New Zealand."

Mr Boshier’s term as Chief Ombudsman ends on 28 March.

Read the reports : https://www.ombudsman.parliament.nz/news/outgoing-chief-ombudsman-releases-reflections-report-official-information-act

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