Hekia Parata breaks law – ignores Official Information Act – claims emails “not found” – and it gets worse!

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As first revealed on 1 December (Hekia Parata breaks law – ignores Official Information Act), Minister Hekia Parata’s office has apparently deliberately broken the law by ignoring requests for information lodged under the Official Information Act.

Intro

The story begins several months ago when this blogger wrote to the Minister’s office on  27 October last year,  requesting answers to the following questions regarding National’s Food in Schools programme;

1. How much has been spent on the programme since 28 May 2013?

2. Is the funding still set at $9.5 million, over a 5 year period from 2013 to 2018?

3. How many schools are part of the programme?

4. It was initially available in decile 1 to decile 4 schools. Higher decile schools would be able to opt in from 2014. How many other, higher decile schools have opted into the programme?

5. Are there any figures as to how many children are participating in the programme? If so, what is that data?

6. Is there a time limit as to the length of time a school can participate in the programme?

7. Have any schools been declined participation in the programme? How many? For what reason?

8. Are Sanitarium and dairy cooperative Fonterra still participating in the programme? Have any other companies joined in?

9. Does the KickStart programme in any way affect a schools allocated budget?

10. Have any Charter Schools requested to join the programme? If so, how does this affect their funding?

By 12 November, after no response nor even an acknowledgement, this blogger wrote again to Minister Parata;

On 27 October, I lodged this OIA request with your office. I have recieved no reply or even an acknowledgement.

Please advice whether or not you intend to respond to my OIA request. If not, I will proceed by laying a complaint with the Ombudsman’s Office.

As at 29 November, no response had been forthcoming from the Minister’s office, and a complaint was laid with the Ombudsman’s Office. As this blogger pointer out in the complaint;

I do not believe it is satisfactory that a Minister of the Crown wilfully ignores the law and fails to follow her obligations under the Official Information Act.

Up-date

On 10 December, a response was received from the Ombudsman’s office stating;

“We have made enquiries with the Minister’s Office about this matter and it appears that they did not receive your request. They have conducted an extensive internal search and have been unable to locate your emails of 27 October or 12 November.”

The Ombudsman’s letter went on to that that “the Minister’s Office advised that the information you are seeking is likely to be held by the Minister for Social Development” and suggested that I “may wish to put [my] request to the Minister for Social Development, Hon Anne Tolley, directly by emailing: a.tolley@ministers.govt.nz“.

I wrote back the following day to the Ombudsman, providing specific information of the email addresses used to lodged my OIA request with Parata’s office;

“I am in receipt of your letter dated 10 December where you state that the Education Minister’s office claims “that they did not receive [my] request”. (Emails dated 27 October and 12 November)

I am cutting and pasting the header of both emails into this email;

from:Frank Macskasy <fmacskasy@gmail.com>
to:Hekia Parata <hekia.parata@parliament.govt.nz>
date:Tue, Oct 27, 2015 at 12:57 AM
subject:KickStart breakfast in schools
mailed-by:gmail.com

from:Frank Macskasy <fmacskasy@gmail.com>
to:Hekia Parata <hekia.parata@parliament.govt.nz>
date:Thu, Nov 12, 2015 at 10:45 PM
subject:Fwd: KickStart breakfast in schools
mailed-by:gmail.com”

I pointed out;

“If the Minister’s email address is incorrect, my emails did not “bounce” back to me.”

I invited the Ombudsman’s office “to test the email address – (hekia.parata@parliament.govt.nz)  to ascertain it’s validity”.

The response from the Ombudsman’s Office, on 15 December, was less than inspiring;

“I note you emailed your original request for information to the following address: hekia.parata@parliament.govt.nz. The Minister of Education’s Office has confirmed that this email address is correct. However, as Mr Ilott explained in his letter of 10 December 2015, the Minister’s Office conducted an extensive internal search but was unable to locate your emails.

This Office has no reason to doubt either party’s account of what has happened. In situations like this where a dispute of facts exist, it is generally not the function of an Ombudsman to determine which version of events is the one that should be preferred.”

The Ombudsman’s response does not reassure this blogger that his Office is capable of holding Ministers to account to uphold the letter and spirit of the Official Information Act.

Specifically;

(A) “Losing” one email sent to a legitimate, active, email address is possible. An accidental deletion is not outside the realms of possibility.

But “losing” two emails seems unlikely and does not withstand the credibility “sniff” test.

(B) The Ombudsman stated that Minister Parata’s Office “conducted an extensive internal search and have been unable to locate your emails of 27 October or 12 November“.

How has the Ombudsman  arrived at the conclusion that Minister Parata’s Office “conducted an extensive internal search“?

It almost seems as if the Ombudsman has become an (unwitting?) apologist for Parata obvious willful refusal to answer a legitimate OIA request.

(C) Having established  Minister Parata “alibi” that they could not “locate” my emails,  why was her Office not advised to write to me directly to request copies of my emails?

In what manner is it the responsibility of the Ombudsman to act as a “go between” between a Minister and a Citizen to advise me to write to Minister Tolley’s Office?

Is Minister Parata refusing point-blank to deal with me solely because of past criticisms of her actions? (See ‘Previous related blogposts’ below)

The Ombudsman’s Report bears out this suspicion when she refers to “different and more risk averse treatment of requests by the media and interest groups” (p142).

(D)  In stating that “This Office has no reason to doubt either party’s account of what has happened. In situations like this where a dispute of facts exist, it is generally not the function of an Ombudsman to determine which version of events is the one that should be preferred” – it beggars belief  that the Ombudman’s Office appears to be abdicating any responsibility to hold a Minister of the Crown to account for what appears to be a breach of the Official Information Act.

If the Ombudsman’s role does not include “the function of an Ombudsman to determine which version of events is the one that should be preferred” – then what is the raison d’être for that Office?

This situation is simply not acceptable. The Minister’s Office has broken the law; offered an implausible excuse; and has drawn the Ombudsman into their sphere of chicanery. The Ombudsman appears to have naively permitted itself to be used as a puppet in this instance.

According to a 2013 dossier compiled by Labour, Parata’s record to responding to OIA requests is poor;

“Along with uncertainty whether the log is 100% accurate, it is also evident that she regularly responds to requests late with only just over half the total number of responses sent within the 20 day statutory period. “

Status of OIA Request

Following on from the suggestion from the Ombudsman’s office (10 December), I duly wrote to Minister Tolley the following day and put the same ten questions to her that I initially sent to Minister Parata.

That letter was acknowledged the same day (11 December) at 9.50AM.

At 11.36AM (11 December) I received a subsequent email from Minister Tolley’s office stating that my OIA “request has been transferred to Brendan Boyle, Chief Executive of the Ministry of Social Development in line with section 14 (b)(ii) of the Act“.

Since then – nothing.

A month and a half  passed. On 21 January I wrote back to Minister Tolley’s office, who subsequently contacted the Ministry of Social Development. The following day, I recieved this unsigned, anonymous response from the Ministry;

With regard to your Official information Act request, it was transferred to the Ministry of Social Development on 11 December 2015. While it has not been our standard practice to acknowledge transferred requests (as the transfer letter is effectively an acknowledgement), we realise it would have been helpful if we had brought to your attention at the time the fact that the days between 24 December 2015 and 15 Janaury 2016 do not count as ‘working days’ as defined in section 2 of the Official Information Act 1982 (http://www.ombudsman.parliament.nz). Due to this holiday period, your response is due on 1 February 2016. We apologise for not informing you of this at the time that your request was transferred to us.

Somewhat bizarrely, when the anonymous author from MSD stated that “the days between 24 December 2015 and 15 Janaury [sic] 2016 do not count as ‘working days’ as defined in section 2 of the Official Information Act 1982 “, s/he then posted a link – not to the OIA legislation referred to – but to the Ombudsman’s Office.

When this blogger checked  “Section” 2 (actually, Part 2) of the Official Information Act 1982,  no reference was found to “the days between 24 December 2015 and 15 Janaury [sic] 2016 do not count as ‘working days’ as defined in section 2 of the Official Information Act 1982 “.

The Act simply refers to twenty working days, which, from December 14 (the next working-day following my OIA lodgement) extends to 13 January.

Accordingly, I wrote back to the Ministry (22 January);

I am in receipt of your email to me, dated 22 January 2016, whereby you claim that “the days between 24 December 2015 and 15 Janaury 2016 do not count as ‘working days’ as defined in section 2 of the Official Information Act 1982”.

I have checked Part 2 of the Act and can find no reference to “the days between 24 December 2015 and 15 Janaury 2016”. Please feel free to enlighten me as to where that proviso exists within the legislation.

By my calculation, twenty working days extends from 14 December to 13 January 2016, inclusive.

If you do not intend to abide by the statute, please advise me and I will lay a complaint with the Ombudsman’s office.

I will keep readers of this blog appraised of this on-going situation.

The shenanigans being played out by Ministers, ministeries, and sundry government departments and other state bodies makes a joke out of the Official Information Act.

National obviously has little regard for the law when it is inconvenienced. Which is ironic, considering right-wing political parties portray themselves as champions of Law and Order.

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John Key admits to his government flouting the law

Whether by an unintended slip, or by some machiavellian plan, on 16 October 2014, our esteemed Dear Leader admitted that his government abused the Official Information Act for purely political self-interest;

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“Sometimes we wait the 20 days because, in the end, Government might take the view that’s in our best interest to do that.”

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This disturbingly candid admission of the contempt held by National to the Act provoked condemnation from the Ombudsman, who a day later on TV3’s ‘The Nation‘, called it “cavalier and a disregard for the law“.

Even National’s allies within the  right-wing blogosphere at  Your NZ, Whaleoil, and  Kiwiblog were taken aback by Key’s dismissive hubris toward the Act.

Wakem said she would be ” having words with a few people, I suspect” – including Key.

Previous Criticisms of the Ombudsman

On 8 December 2015, the Ombudsman – Dame Beverley Wakem –  released a report “on an investigation into  the practices adopted by central government agencies for the  purpose of compliance with the  Official Information Act 1982“.

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In the Report’s conclusion, the Ombudsman stated;

“I commenced this investigation because of what I perceived to be growing concern
and criticism that government agencies were not complying with the requirements
of the OIA, nor acting in accordance with its principle and purposes when making
decisions about the accessibility of official information they held. Following a
comprehensive examination of how agencies have organised and resourced
themselves and currently operate in practice, I am satisfied that the OIA itself is
fundamentally sound, but it is not always working in practice.

On the positive side of the ledger, agencies are compliant with the OIA most of the
time and most government officials working within these agencies have a genuine
desire to ensure that they are compliant.” – p140

However, the report’s Conclusions also drew attention to Ministerial interference in responding to OIA requests;

“Where I have found that agencies are vulnerable to non-compliance with the OIA,
I have not found evidence of deliberate obstruction but rather the unintended
consequences of various attempts to:

[…]

try to meet the expectations of two masters ie, the public under the OIA and
the Minister under the ‘no surprises’ principle;

[…]

well-meaning practices that invite opportunities for ministerial/political
advisors to influence more than they ought to and sometimes on matters
where they have no legitimate place” – p141/142

The Ombudsman’s Conclusions then veered off onto a tanjeant shifting fault to the public, bloggers, and media. A  subsequent Dominion Post editorial was scathing;

What a shame, then, that retiring Chief Ombudsman Beverley Wakem is leaving office amid a cloud of justified controversy. Her recent remarks make her look less like a champion of freedom than a friend of the powerful.

It is truly extraordinary to hear her scolding journalists as “rottweilers on heat” and warning them not to annoy “innately conservative” officials who might then become “gun-shy”. These statements are what you would expect from a bad-tempered bureaucrat, not an ombudsman. 

It is not for the Chief Obudsman to tell anyone to be polite and humble when asking for information. It is most certainly not for her to suggest that officials can obstruct information – because that is all that being “gun-shy” can mean here – when they are irritated.

The Official Information Act requires the government to provide information unless there is good reason not to. The reasons for refusal are laid out in statute. The law must determine when the gate is open and when it is shut, not the manners of the applicant or the mood of the gatekeeper.

If Wakem had made these statements when first appointed, they would be good grounds for seeking her resignation. They show a fundamental misunderstanding of her role and an establishment mentality.

The Ombudsman also complained of a lack of public and media submissions to her Inquiry;

“I note that the public were less forthcoming in responding to the surveys, and I was
unable to determine precisely why that was. It could be interpreted many ways –
from a loss of confidence in the OIA and the work of my Office, to a demonstration
that a significant proportion of the public believed with so much official information
now being made available on a regular basis, the OIA was working for them…” – p143

Which is an astounding suggestion to make, considering that  for the 2013/14 financial year,  the number of complaints to the Ombudsman was the third-highest ever. The Ombudsman could easily have based it’s report – even partially – using information gleaned from complaints of  non-compliance and tardiness from Ministers and Ministries.

This blogger suggests that the a lack of public submissions could well be attributed to a perception that the Ombudsman’s office is powerless in the face of a government that has been unrelentingly secretive and autocratic.

Indeed, recall that in their 10 December statement to me, the  Ombudsman’s office suggested;

 “…the Minister’s Office advised that the information you are seeking is likely to be held by the Minister for Social Development. Accordingly you may wish to put your request to the Minister for Social Development, Hon Anne Tolley, directly by emailing: a.tolley@ministers.govt.nz”.

It is simply not the role of the Ombudsman’s Office to be adopting a “helpful” position for a government minister.

Otherwise, the perception – whether rightly or wrongly – is that the Office of the Ombudsman has been captured by ministers and agencies of this government.

As NZ Herald reporter, David Fisher, said on 15 October 2014;

“In the 25 years I have worked as a journalist, there have never been so many questions, or such a loss of faith, all at once.”

Dark Clouds Looming

Up to now, the two weapons-of-choice employed by National Ministers and our Esteemed Dear Leader has been Delay and Defer. For many journalists and bloggers, waiting  long periods for a response is not uncommon. By then, news stories have become ‘stale’ and public interest has moved on.

Recently, a new  weapon in government and bureaucratic armoury has been unveiled; charging for OIA requests.

On 18 January, the Dominion Post published an editorial describing how the Reserve Bank had begun to demand compensation for information;

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The editorial said, in part;

The Reserve Bank has started a very bad trend by deciding to charge for most Official Information Act responses. The bank says it made this decision last October, but the world only learned of it last week, when the bank invoiced a Fairfax reporter. This is not the right way to make or reveal such a momentous decision.

The bank’s move is in important ways an undemocratic act. The Act makes information available as of right to the country’s citizens; it reverses the previous legal assumption that the government’s information is secret. Information is power, and the act provides power to all.

Charging for researching and providing that information puts a barrier in the way and is an obstacle to the exercise of what is now a vital democratic right. No doubt the bank will point out that the act allows for some charging for costs. But the bank’s policy will institutionalise what has until now been a patchy thing.

This means that ordinary citizens could now face a hefty fee for information. The invoice sent to Fairfax business reporter Richard Meadows was for an estimated $651. A fee of that size would be a serious obstacle for an individual. If OIA requests routinely cost this much it would also be a problem even for large media outlets.

In the Ombudsman’s 2015 report,  “Not A Game Of Hide And Seek“, Wakem quoted an earlier  Law Commission Report from 2012, which stated;

“…access to official information is an important tool for opposition parties to be
able to scrutinise government policy, and that parliamentary research units should
not usually be charged for reasonable requests. However, there is no reason why
unreasonable political requests should be completely exempt. Voluminous and
unrefined requests from parliamentary research units can cause a great deal of
expenditure of resources. The charging mechanism should be available to agencies
as a defence mechanism in appropriate cases, regardless of the source of the request.
The public interest waiver should provide the flexibility for appropriate charging of
MPs and incentivise these requesters to ensure that requests have a sufficient public
interest basis in order to qualify for a waiver of charges.” – p96

Wakem agreed, saying;

“I agree with this approach and believe it should apply to all types of requesters.
The OIA does not provide for an outright exemption based on the identity of a requester
or their role in its charging provisions. Nor did I find many members of the media
who believed they ought to be exempt from charging, although some worked for
organisations that had a policy not to accept any charge for the provision of official
information. “

The Law Commission and Ombudsman’s Office ignore the cold hard political reality that politicians and and their bureaucratic minions will not recognise “niceties” of what constitutes “a sufficient public interest basis”.

To be be blunt; if politicians can get away with it – expect them to do it.

The Reserve Bank’s policy of charging for OIA requests is a thin-end of a wedge. It is a test to see if they can get away with it. Other government agencies, Ministries, and Minister’s will follow with predictable succession.

Only expensive legal action could over-turn a charging policy – and few individuals and organisations have pockets deep enough to take on the State.

In a pathetic defense of his organisation, Reserve Bank deputy governor, Geoff Bascand, said;

The Reserve Bank has established a policy on when it will charge for responses to Official Information Act (OIA) requests that has drawn the ire of some critics.

Far from it being an obstacle in the path of freedom that The Dominion Post editorial claimed (January 18), the policy is a common, fair and reasonable response to a marked growth of OIA requests.

I’d like to explain our rationale, and what the policy means for requesters – most of whom will likely not be charged.

Our approach is consistent with the Official Information Act and meets the bank’s commitment to transparency.

Garbage. This is a naked attempt by the RBNZ to stifle transparency, not promote it. Any assertion to the contrary is a ridiculous attempt at ‘spin’ from a not-very-clever spin-doctor working for the Bank.

The irony is that the RBNZ is attempting to charge for information that rightly belongs to us, the tax-payer. That information was gathered  using taxpayer-funded resources and by taxpayer-funded public servants.

It is not private information – it belongs to us, the taxpayer.

Politicians, bureaucrats,  the Ombudsman’s Office, and Mr Bascand, would do well to reflect on this salient fact.

Conclusion

This blogger will vigorously pursue the OIA lodgedment with  Minister Parata; who passed it on to Minister Tolley; who passed it on to the Ministry for Social Development, requesting answers to the following questions regarding National’s Food in Schools programme;

1. How much has been spent on the programme since 28 May 2013?

2. Is the funding still set at $9.5 million, over a 5 year period from 2013 to 2018?

3. How many schools are part of the programme?

4. It was initially available in decile 1 to decile 4 schools. Higher decile schools would be able to opt in from 2014. How many other, higher decile schools have opted into the programme?

5. Are there any figures as to how many children are participating in the programme? If so, what is that data?

6. Is there a time limit as to the length of time a school can participate in the programme?

7. Have any schools been declined participation in the programme? How many? For what reason?

8. Are Sanitarium and dairy cooperative Fonterra still participating in the programme? Have any other companies joined in?

9. Does the KickStart programme in any way affect a schools allocated budget?

10. Have any Charter Schools requested to join the programme? If so, how does this affect their funding?

More than ever, I am curious what the answer(s) will be.

And I do not intend paying a cent for it.

From Radio NZ’s Mediawatch

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(Alt.link)

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“Information is the currency of democracy and my Office will play its part in ensuring the OIA is not devalued.”

– The Ombudsman, OIA Report Not A Game Of Hide And Seek, 2015

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References

Red Alert: The right to know – Hekia Parata

Parliament: Official Information Act 1982

Radio NZ: PM admits Govt uses delaying tactics

TV3 The Nation: Transcript – Beverley Wakem

YourNZ: Disgraceful Key admission on OIA delays

Whaleoil: Key and PM Office told to stop farting around with OIA requests

Kiwiblog: Chief Ombudsman to review OIA compliance

Ombudsman:  OIA Report Not A Game Of Hide And Seek

Dominion Post: Editorial – Chief Ombudsman shows how not to be an information watchdog

Radio NZ: PM’s admission concerns Ombudsman

NZ Herald: David Fisher – OIA a bizarre arms race

Dominion Post: Editorial – A tax on official information is a tax on democracy itself

Dominion Post: Reserve Bank – Charging for official information a ‘reasonable’ response

Additional

Radio NZ: The watchdog and the rottweilers

Radio NZ: Mediawatch – Information watchdog’s probe into political meddling (alt. link)

Other bloggers

The Jackal: Back to school for Hekia Parata

The Jackal: various

The Daily Blog: Hekia speaks with forked tongue

No Right Turn: An attack on our democracy

Previous related blogposts

Parata, Bennett, and Collins – what have they been up to?

Karma for Key?

Hekia Parata breaks law – ignores Official Information Act

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This blogpost was first published on The Daily Blog on 25 January 2016.

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