8 Sep 2023

Chris Hipkins ordered to apologise for breach of Official Information Act

11:48 am on 8 September 2023

By Alex Spence of NZ Herald

Labour Leader Chris Hipkins.

The rebuke follows Chris Hipkins' comments in May that he "absolutely expects" ministers to comply with disclosure rules. Photo: RNZ / Angus Dreaver

Prime Minister Chris Hipkins' office has been ordered to apologise by the Chief Ombudsman for breaching the Official Information Act.

In a formal finding that has not been made public until now, Chief Ombudsman Peter Boshier has upheld a complaint by the New Zealand Herald about a weeks-long delay in the release of government documents relating to the extreme flooding in Auckland earlier this year.

The rebuke follows Hipkins' comments in May that he "absolutely expects" ministers to comply with the disclosure rules after Willie Jackson failed on several occasions to meet the obligations imposed by the OIA.

The Ombudsman's finding highlights growing concerns about the functioning of the OIA, which transparency campaigners say is one of New Zealand's most important tools for scrutinising government decisions and holding politicians and public officials to account.

Officials claim government agencies comply with the vast majority of OIA requests on time - 97.7 percent in the six months to December - despite getting more requests than ever. But journalists, researchers, open-government campaigners, and other frequent users say these official statistics conceal serious flaws in the disclosure process.

Requests for information in the public interest are often held up for weeks or months while departments carry out "consultations". Deadlines are missed because of understaffing, cumbersome internal processes, and poor data management. And when documents are released, there may be extensive redactions to protect commercial interests or the "free and frank" opinions of advisers.

"We should care about how well the OIA is functioning because it's an integral part of any modern democracy," said Andrew Ecclestone, a freedom of information researcher. "You can't meaningfully have public participation and public accountability unless you have a well-functioning information system."

Earlier this year, the Herald asked numerous government departments and ministerial offices, including that of the Prime Minister, for documents showing how they responded during and immediately after the deluge that devastated Auckland on 27 January.

Under the OIA, a public body is required to provide a response within 20 working days of a request, but it can extend this deadline for a "reasonable" time if it requires searching through a large volume of information or extensive consultations on what should be released.

Hipkins' office extended their time limit for a response to 24 March but missed this deadline and did not reply to a reporter's emails seeking updates. Eventually, it provided one batch of documents on 21 April and another on 24 July. There was no explanation or apology for the delay.

The Herald complained to the Ombudsman and last week Boshier issued a formal finding telling the Prime Minister's office to apologise, and to report back to him on what improvements it is making to its processes to avoid similar delays.

Chief Ombudsman Peter Boshier

Chief Ombudsman Peter Boshier made the ruling. Photo: Getty Images

A spokeswoman for Hipkins said: "The Prime Minister will apologise, as guided by the Ombudsman.

"The delay of approximately one month for the vast bulk of the documents was unfortunate. NEMA [the National Emergency Management Agency] was incredibly busy during this time responding to the Auckland floods and Cyclone Gabrielle.

"We will be responding to the Ombudsman shortly to set out improvements to the system to ensure it doesn't happen again," the spokeswoman added. "This case does not represent a trend."

Other departments took even longer to comply with the Herald's requests for documents about the flooding. The Ministry of Business, Innovation and Employment (MBIE) gave itself until 5 April to respond to a request submitted on 31 January, but then did not turn over any records until mid-July.

In a separate formal finding, the Ombudsman said MBIE's delay was "unacceptable" and that he would monitor the department for "demonstrable non-compliance" in the future. MBIE has apologised for the delay.

To date, Auckland Council has taken the brunt of criticism for the haphazard response to the January flooding, but numerous central government departments were also involved in the response and have not been subjected to the same scrutiny.

Oakley Creek overflowed in Walmsley Park, Mt albert causing flooding on properties nearby on 9 May, 2023.

Auckland Council has borne the most criticism over the official response to the January floods. Photo: RNZ / Finn Blackwell

NEMA is conducting a review of its role, which will not be completed until the end of the year. A broader government inquiry led by former governor-general Sir Jerry Mateparae was established to examine responses to the Auckland floods and Cyclone Gabrielle, with a deadline for final recommendations of March 2024.

Labour promised to make government more open and transparent when it came into government in 2017, but reforming the disclosure process has not turned out to be a high priority since then. In recent months, several ministers have run into controversy for not complying with the legislation.

In June, the Ombudsman found that former minister Stuart Nash had wrongly refused a journalist's request for emails in which Nash disclosed information from Cabinet discussions to political donors. Those emails leaked in March, prompting Hipkins to sack Nash for a "clear breach" of Cabinet's collective responsibility and confidentiality.

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