The Chief Ombudsman has sought an urgent meeting with the
Secretary for Education following reports that a senior
Ministry of Education official told staff not to record
certain interactions involving the Minister’s office because
the information could be obtained under the Official
Information Act.
The controversy has triggered an
internal Ministry review, an urgent debate in Parliament and
consideration by the Chief Ombudsman of a broader
investigation.
MAGNZ Chief Executive Richard Tohu says
the controversy demonstrates why the integrity of the OIA
matters.
“The public discussion this week has
focused on whether government information is being kept out
of the written record to avoid OIA scrutiny.
“There
is another side to that same transparency equation: what
happens when members of the public keep asking legitimate
questions and an agency decides they have asked too
many?”
MAGNZ is currently awaiting the outcome of an
Ombudsman investigation into ACC’s decision to refuse five
of the motorcycle advocacy group’s Official Information Act
requests under section 18(h) of the Act.
That
provision allows an agency to refuse a request where it
considers the request frivolous or vexatious, or the
information requested trivial.
ACC told MAGNZ it had
made 18 requests since mid-April and referred to the number,
length and nature of its requests when refusing five further
requests.
Those five requests sought information
concerning:
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• the analytical evidence connecting
motorcycle engine capacity with the risk used to
differentiate ACC motorcycle levies;
• the
Motorcycle Safety Advisory Council’s involvement in levy
consultation and risk-rating assurance;
• ACC’s
consideration of rider-based, multi-motorcycle,
distance-based and other alternatives to the existing levy
structure;
• ACC’s internal handling and review of
motorcycle-levy OIA requests; and
• the standards,
assessment, quality assurance and evidential basis behind
Ride Forever Gold, which ACC now uses as a gateway to a 25
percent motorcycle levy discount.
“We’re not
suggesting the circumstances at ACC are the same as the
allegations concerning the Ministry of Education,” Tohu
says.
“But they raise opposite sides of an important
democratic question.
“Government agencies should not
avoid creating records because somebody might request
them.
“Equally, people should be able to
persistently seek information about government decisions
without legitimate scrutiny automatically becoming an abuse
of the OIA.”
Recent decisions published by the
Ombudsman demonstrate how serious conduct can become before
repeated information requests are considered
vexatious.
In one case involving Police, the requester
had sent thousands of emails over several years, made many
dozens of OIA requests, targeted individual staff and
expressly indicated an intention to “drip-feed” requests
in retaliation.
In another case involving Inland
Revenue, more than 20 requests were made over several years
before the Ombudsman concluded the overall pattern had
become excessive and increasingly tenuously connected with
the original dispute.
The Ombudsman nevertheless
expressly recognised that pursuing a dispute with a
government agency through requests for official information
is legitimate.
MAGNZ says it is not asking the public
to prejudge its complaint against ACC.
“We’ve put
the five requests on the table.
“People can read
what we actually asked for and why we asked for
it.
“The Ombudsman will determine whether ACC was
justified in applying section 18(h), and we will respect
that process.
“But at a time when New Zealand is
having a very public conversation about protecting the
integrity of the Official Information Act, this is exactly
the right time to ask where the boundary lies between
vexatious behaviour and persistent public-interest
scrutiny.
“The OIA only works if both sides operate
in good
faith.”
