A tax on the right to know


This column appeared in the February 2016 edition of the PANPA Bulletin 

Last year New Zealand dropped two places on an international index of perceived corruption and this year it is likely to slip further down that greasy pole.

One of the reasons advanced for last year’s demotion is stonewalling of requests under the Official Information Act. Delay, obfuscation, duck-shoving, redaction and refusal are common war stories among journalists who have experienced the frustration of seeking information under a system that has become highly politicised — to the point where ministers’ offices routinely play a role in determining responses to requests.

My prediction of a further slide on the index is based on a new tactic adopted in January. The Reserve Bank of New Zealand began charging news media organisations large sums for requests under the OIA and other agencies are expected to adopt the new policy.

There was no announcement, no opportunity for the news media to make representations on the potential impact. A Fairfax business journalist simply received an invoice for $651 to cover a request that would take “an estimated 8 ½ hours of chargeable time”. Unsurprisingly, Fairfax reacted with a Dominion Post editorial that described the charge as a “tax on democracy”.

The Reserve Bank responded that “far from being an obstacle in the path of freedom…the policy is a common, fair and reasonable response to a marked growth in OIA requests”. It also stated that it had given the Fairfax journalist an opportunity to “refine his request”. Faced with these two options the reporter withdrew it. The current culture relating to official information would rate that a victory — one-nil to the Reserve Bank.

In its response, the bank’s deputy director, Geoff Bascand, stated that charges could be waived in cases of hardship or “if releasing information is likely to contribute significantly to public understanding of the Reserve Bank and its work”. I understand that to mean the bank may not charge for information that shows it in a good light. The corollary, I assume, is that if you are seeking anything that shows the bank or its political masters in a bad light you can expect a hefty invoice.

The helpful offer to work with journalists to “refine requests” may reduce the anticipated workload and charges but it is also an opportunity to prevent journalists from casting a wide net for information. It is a means by which officials can avoid revealing material that journalists suspect is held by the relevant body but on which they have insufficient knowledge to make specific requests.

The Reserve Bank’s move follows a report on the Official Information Act by outgoing Ombudsman Dame Beverley Wakem that was singularly unhelpful to news media deeply unhappy at the way the legislation was being manipulated by politicians and senior bureaucrats. With a few caveats she gave the Act its Warrant of Fitness. She also said she saw no reason why media should be exempted from charges and encouraged departments to regularise their charging mechanisms. With the Ombudsman’s endorsement, the government could say it has right on its side and media charges are no more than a demonstration of fairness to all.

Newsroom budgets are in no state to cover high additional costs. The effect of government charges to media under the OIA can have only one result: a reduction in the number of requests made by journalists — two-nil to the politicians and bureaucrats.  The Australian Freedom of Information Act has a public interest waiver in its section on charges. There is no such provision in the OIA although the preamble makes noble assertions about the public’s right to information.

In fact, user charges are another row of stones being mortared into place on the wall between journalists and the material they seek to hold government to account. The growing height of the wall is not, however, a right-wing conspiracy. The current National-led Key government has embraced wholeheartedly the “no surprises” policy on official information requests adopted under Helen Clark’s Labour leadership. It was outwardly designed to avoid slip-ups between coalition parties. However, it became a means by which a political risk assessment could be made before granting or refusing any requests.

I could fulminate at much greater length on politicians’ and state employees’ proprietary attitude to official information, which flies in the face of democratic concepts of government of, by and for the people. So I have written a book on the flawed nature of the New Zealand’s Official Information Act and its Bill of Right Act. It will be published mid-year.

We do need to keep matters in perspective: New Zealand retains a high rank on Transparency International’s 2015 table — it is fourth compared to Australia’s 13th place — but it can take no pride in the attitude its politicians and bureaucrats have adopted over the public’s right to know.


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