OIA compliance and practice in Ministry of Justice 2022
This report was released as part of ‘Ready or not?’, an investigation into OIA practices at 12 core agencies.
'Ready or not?' is a follow-up to 'Not a game of hide and seek', an investigation published by former Chief Ombudsman Beverley Wakem in 2015.
From the executive summary
This summary draws together the key findings and suggested actions from my investigation.
Te Tāhū’s special role under the OIA
Although Te Tāhū delegated its OIA advice and assistance function under section 46 of the OIA to Te Kawa Mataaho Public Service Commission (formerly the State Services Commission) in 2016, it has retained other responsibilities including, as administrator of the Act, the stewardship obligations specific to this legislation.
One of Te Tāhū’s statutory obligations, under section 20 of the OIA, is to maintain the Directory of Official Information (the Directory). Agencies are required to submit information to Te Tāhū for biannual publication of a Directory, the intent of which is to assist requesters in understanding the type of information agencies hold, in order that they can make targeted requests for information.
I consider that if Te Tāhū provided guidance to agencies on the type of information their entries should contain, it would greatly improve the quality and consistency of the information in the Directory. This echoes the view of my predecessor who, in her 2015 Not a Game of Hide Seek report, made a recommendation to this effect. Unfortunately, Te Tāhū has not fulfilled it. There are also a number of notable omissions in the latest version of the Directory.
It is my opinion that Te Tāhū has acted unreasonably by failing to fulfil its role as administrator and steward of the OIA in respect of:
- providing guidance to agencies to facilitate their compliance with their statutory responsibility under section 20(3) of the OIA; and
- its obligation under section 20(4) of the OIA to ‘have regard…to the need to assist members of the public to obtain official information’.
I recommend Te Tāhū, with input from my Office and within 12 months, develop and issue guidance for agencies on the type of information that should be included in the Directory of Official Information that will assist requesters to make effective, targeted OIA requests to agencies. I am also likely to recommend that it develop and implement a plan, with input from my Office, to address the omissions of agency entries from the Directory, and improve accessibility and usability.
In addition, I consider Te Tāhū should issue an instruction to agencies to reproduce Directory entries on their own websites and, where possible, Directory entries should contain hyperlinks to any documents to which they refer.
I am pleased that Te Tāhū, in its response to my provisional opinion, indicated its acceptance of my recommendation, and has already confirmed steps to improve the Directory.
Te Tāhū delegated its section 46 responsibilities to Te Kawa Mataaho in 2016. However, the instrument of this delegation only referred to delegating its ‘function of providing advice and assistance on the OIA’ to Te Kawa Mataaho.
There was a lack of specificity about exactly what this entailed, which may have contributed to confusion around which party was responsible for the review and updating of the OIA charging guidelines . I am disappointed that the lack of clarity of section 46 responsibilities from Te Tāhū may have contributed to a situation where important guidance for agencies on a key tool in the OIA was allowed to become outdated.
As Te Tāhū administers of the OIA, I consider it has ultimate responsibility to ensure that the advice and assistance role is fulfilled even if it has delegated the responsibility for discharging it. As such, it should ensure the role it has delegated to Te Kawa Mataaho is clearly defined. In its response to my provisional opinion, Te Tāhū confirmed that it would do so.
Recommendation: Te Tāhū’s special role under the OIA
Within 12 months and with input from my Office, (i) develop and issue guidance for agencies on the type of information that should be included in the Directory of Official Information that will assist requesters to make effective, targeted OIA requests to agencies; (ii) develop and implement a plan, with input from my Office, to address the main omissions of agency entries from the Directory and to improve its accessibility and usability.
Action points: Te Tāhū’s special role under the OIA
- Issue guidance to agencies to publish their Directory of Official Information entry on their own website, in addition to the centrally published version.
- Encourage agencies to include hyperlinks to the documents listed in their Directory entries, where possible.
- Clarify and confirm with Te Kawa Mataaho the roles and responsibilities delegated to it under section 46 of the OIA.
Leadership and culture
Leadership is key to developing and maintaining a strong culture of openness and transparency within an agency. Information gathered from staff surveys and meetings suggests that overall, staff feel Te Tāhū’s Strategic Leadership team is supportive of the OIA and the culture is generally open. There were examples of the Chief Executive providing internal messaging to staff about the OIA, and staff survey results suggest the signals sent from leaders about the OIA and openness are generally good.
Messaging from agencies to the public about the OIA and openness is also important. Te Tāhū has some broad, overarching statements about the importance of the OIA on its OIA webpage, but it may wish to consider whether it can do more to ensure the public are clear about Te Tāhū’s commitment to openness, transparency and the OIA.
Te Tāhū has a link to its OIA webpage on the landing page of its website. It is clearly signposted and includes a lot of useful information on the OIA and openness. I have made a small number of suggestions that I consider will improve the OIA webpage even further.
I am pleased Te Tāhū has a ‘consultation hub’ in a prominent position on the home page and it has been updated to include information about the OIA and Privacy Act and circumstances in which a submitter’s information may be released.
Action point: Leadership and culture
- Update the OIA webpage incorporating my suggestions.
Organisation structure, staffing and capability
Te Tāhū has recently created the Ministerial Relations and Services team that handles OIA correspondence in what is a ‘partially-centralised’ (or mixed) OIA processing model. The team has an increased number of staff dealing with OIA requests and Te Tāhū states that the new structure has had a positive impact on timeliness statistics. I commend Te Tāhū for the additional resourcing in this area and I support the review to ensure the model is fit for purpose and the most effective operating model for OIA processing.
Te Tāhū has improved its provision of OIA training since 2017. It delivers an online training module and ad-hoc specialist training. However, there are some improvements to training that would ensure staff have a good understanding of the OIA. Currently, Te Tāhū-wide induction training does not include an introduction to the OIA. In addition, Te Tāhū did not provide evidence of conducting OIA training to senior leaders and I suggest conducting further in-depth training for specialised roles.
Action point: Organisation structure, staffing and capability
- Ensure regular OIA training is provided to:
- all staff at induction;
- in-depth training for specialised roles such as those involved in processing OIA requests such as subject matter experts and the Communication Services team; and
- senior leaders.
Internal policies, procedures and resources
Te Tāhū has an OIA policy and a number of guidance documents. The majority of staff survey respondents considered the guidance material easy to find. I applaud Te Tāhū for having a wide variety of OIA resources to assist staff, and for the generally sound content within the resources. On the whole, the guidance provides clear and practical steps for staff completing OIA requests.
However, in order to further lift the quality of the resources, I suggest Te Tāhū review its guidance and consider including additional information, such as:
- keeping records of scoping meetings and searches;
- keeping a record of public interest considerations;
- peer review processes;
- the differentiation between consultation and notification to the Minister’s office; and
- additional guidance on charging for the supply of official information.
I also encourage Te Tāhū to publish the updated OIA guidance documents on its website. Guidance which is used to make agencies more open and accountable to the public should, in turn, be made available to the public.
Te Tāhū has a number of internal guidance documents related to the proactive release of information. The guidance about publishing OIA requests broadly outlines the process to prepare and publish OIA request documents on Te Tāhū’s website. However, while I commend Te Tāhū for producing guidance around the proactive release of Cabinet papers and OIA request documents, there is no overarching proactive release policy document. I encourage Te Tāhū to revisit the OIA proactive release document to ensure it is fit for purpose and to prioritise the drafting of an overarching a proactive release policy. I also encourage Te Tāhū to publish any proactive release policy on its website.
Te Tāhū’s information management systems were identified as an issue by initial and post-lockdown staff survey respondents. Te Tāhū uses a number of different information management systems that one staff member described as ‘disparate and disconnected’. If documents are not stored correctly or able to be retrieved, OIA requests will not be responded to in an accurate or fulsome manner. I urge Te Tāhū to consider the feedback from staff members on its information management systems and conduct a review to ensure the best system is in place.
In addition to having a fit-for-purpose information management system, adequate guidance and training is required to ensure staff are clear about their responsibilities in relation to the Public Records Act 2005 (PRA) and the OIA.
Te Tāhū has a good overarching policy, which is operationalised by using material that encourages staff to consider information management on a case-by-case basis. However, there is some information that I consider to be lacking, which Te Tāhū should include in its information management guidance. Te Tāhū should consider including further guidance on creating, organising, maintaining and storing records; managing and modifying records; and a guide to determining which records systems exist and what information each system holds.
Te Tāhū currently conducts some online training for staff on Data and Information. However, the training is not compulsory to all staff and I am concerned that Te Tāhū stated that only approximately 15 percent of current staff members have completed the training.
I encourage Te Tāhū to consider reviewing its training to ensure it is providing sufficient information to staff on information management and record keeping to ensure they are adhering to the PRA which, in turn, helps to facilitate compliance with the OIA.
Action points: Internal policies, procedures and resources
- Review and update OIA guidance material incorporating my suggestions.
- Publish the OIA guidance material on Te Tāhū’s website.
- Finalise and publish a comprehensive proactive release policy.
- Review information management system to ensure it enables compliance with the OIA.
- Review and update information management guidance and training to incorporate my suggestions.
To gain an understanding of how Te Tāhū processes requests, my investigators reviewed a selection of OIA request files. Overall, Te Tāhū’s OIA handling process is good, but I identified some inconsistencies.
It is positive that the progress on OIA requests is tracked and maximum statutory timeframes were usually adhered to. Correspondence was generally of a high standard, and responses referred to requesters’ right to complain to me, where applicable. In addition, Te Tāhū has some excellent initiatives, such as providing counselling sessions to staff to discuss the processing of sensitive OIA requests.
However, there were some vulnerabilities. For instance, although relevant decision letters include standard wording about considering the public interest, there was little evidence that public interest considerations had genuinely taken place. A number of record keeping issues were also identified. There were inadequate records kept of searches for information requested under the OIA; no records of telephone conversations or meetings; and a number of blank coversheets were included in the samples provided to me.
I also identified issues with email record keeping. When I requested acknowledgement emails as part of the sample OIA file review, it became apparent that the emails were saved in an individual’s mailbox, and the person had left the organisation. While the emails could be retrieved, it would have come at a cost to Te Tāhū. The same issue was evident in the practices of the Communications Services team where an email could not be provided as it was saved in an individual’s mailbox and the individual had left Te Tāhū.
A number of staff survey respondents also said they had been advised to permanently delete all emails stored in their ‘deleted’ folders after 60 days. While there may be no issue with deleting some emails in accordance with an established disposal authority, I urge Te Tāhū to ensure staff are saving business records, including key emails, onto a shared network before they are deleting them from email storage. If documents are not stored correctly, staff may not be able to identify, access and collate information that has been requested under the Act.
In its response to my provisional opinion, Te Tāhū stated its view that ‘(i)n any large, complex system that involves hundreds of thousands of documents and thousands of interactions between officials, there will always be issues of human error or inaccuracies. I understand we did identify a small number of instances of poor practice …. and I would be concerned if this was elevated to a finding of unlawfulness’.
My investigation relied on a sample of files to identify practice. Within that sample, numerous examples of insufficient record keeping were identified. My finding is also based on the views and experiences of staff, some of whom expressed concerns with Te Tāhū’s record keeping practices around email correspondence, and confirmed that practices related to keeping emails in mailboxes rather than in shared drives, were not uncommon.
Accordingly, I have not been persuaded to depart from my opinion that Te Tāhū appears to have acted contrary to law in relation to sections 17(1) and 17(2) of the Public Records Act 2005 which, respectively, require Te Tāhū to:
- create and maintain a full and accurate record of its affairs; and
- maintain records in an accessible form to enable use for subsequent reference.
Despite this opinion, I have not made a recommendation in this instance as Te Tāhū, in its response to my provisional opinion, confirmed a number of steps it is taking to improve its information management systems and record keeping practices.
I expect sufficient records of substantive matters to be kept, and for those records to be accessible so that they can be used for subsequent reference by the agency when required, including during a review by me.
Te Tāhū’s reported percentage of OIA requests completed within the maximum statutory time limit for the last six years has been somewhat changeable. The lowest reported percentages were in 2017/18 and 2019/20. After the reported timeliness rates dropped in 2017/18, the Chief Executive started monitoring OIA performance and compliance at a Strategic Leadership Team level. This led to an increase in reported timeliness in 2018/19, which dropped again in 2019/20 due to circumstances arising as a result of the 2020 lockdown.
These include some difficulties with technology and resources, and a lack of staff or resourcing to process requests.
The proactive release of information to the public promotes good government, transparency and fosters public trust. The Public Service Commission website states that Te Tāhū published two OIA responses from January to June 2021. The low number of responses released so far may be due to a number of reasons. Te Tāhū also releases a variety of other information proactively, including Cabinet papers, some COVID-19 information, a range of survey information and commonly requested statistics.
However, I urge Te Tāhū to consider broadening the scope of OIA requests eligible for public release.
It appears Te Tāhū had a number of challenges maintaining its obligations under the OIA during the 2020 lockdown, including initially providing mixed messages to staff about the prioritisation of OIA requests. I understand that this stemmed from cross agency concerns at the start of the pandemic regarding the likelihood that OIA requests may not be able to be prioritised or met in a ‘worst case scenario’. It is pleasing that a cohesive message from leaders appeared to emerge which confirmed the priority of the OIA over the lockdown.
Te Tāhū also had difficulties with technology and resources, including a lack of laptops and issues with the electronic records management system. There was a reported lack of staff or resourcing to process requests. While improvements have been made on many of these issues, I am concerned that when asked if Te Tāhū had adequate resources to cope with OIA responses during the 2021 lockdown, it said it was much better prepared in terms of technology, but approximately 50 percent of staff in the Ministerial Relations and Services team still did not have a laptop to enable them to access Ministry systems and information. I suggest Te Tāhū review its OIA practices during the 2020 and 2021 lockdowns to ensure Te Tāhū can meet its obligations under the OIA should a lockdown or emergency occur in the future.
Te Tāhū’s OIA policy and its process guides include some detail on Te Tāhū’s interactions with Ministers’ offices on departmental OIA requests. The section of the policy dealing with Ministerial interactions includes some important aspects I consider a Ministerial protocol should cover. However, the timeframe in which responses should be sent to Ministers’ office as an ‘fyi’, is not set out clearly in policy or guidance. I suggest Te Tāhū review and update written guidance on its interactions with Ministers’ office on departmental OIA requests incorporating my suggestions. This will ensure Te Tāhū’s practice and its written resources are in alignment. I also suggest the guidance is agreed with the Minister’s office.
Te Tāhū’s media practices are guided by a media policy, which was provided to me as part of this investigation. The policy contains a small section about the OIA. The team that deals with requests from the media is the Communications Services team.
As part of my investigation, I reviewed a sample of files showing the Communications Services team’s handling of information requests. I was very pleased to see some excellent practices from the media team in their helpful exchanges with members of the media. I was impressed with the way the Communications Services team appears to work with the Ministerial Relations and Services team to handle complex requests for information.
However, the Communication Services team’s record keeping practices appear somewhat inconsistent. Te Tāhū should consider amending the Communication Services team’s practices to ensure full and accurate records are kept, maintained and stored accessibly.
I remind Te Tāhū that, where a request for held information is refused, section 19 of the OIA must be complied with in all respects, including advising requesters of their right to complain to me.
The messaging from Senior Leaders to staff should also reinforce that requests for information handled by the Communications Services team must adhere to the OIA. I suggest Te Tāhū review and update the media policy incorporating my suggestions.
All public service and non-public service agencies are required to meet the NZ Government Web Accessibility Standard. My investigators have reviewed a range of documents released on Te Tāhū’s website, and responses to OIA requests submitted to Te Tāhū via the ‘FYI’ website. Although some of the documents reviewed were in searchable formats, the practice appears inconsistent. I suggest Te Tāhū ensure all documents proactively released, are searchable and not ‘image only’, and all visual elements are tagged with alternative text. In addition, all documents provided to OIA requesters should be searchable and not ‘image only’.
Action points: Current practices
- Amend Te Tāhū’s record keeping practices to ensure full and accurate records are created, maintained and stored accessibly.
- Ensure OIA decision makers consider and record the public interest test where applicable.
- Amend OIA record keeping practices, to ensure:
- a record of the search for OIA request documents is kept;
- substantive correspondence is created and maintained such as telephone conversations, meetings, verbal discussions and extension letters; and
- coversheets are completed and saved in every instance.
- Amend record keeping practices to ensure business records, including OIA acknowledgement emails and other key emails, are saved in a shared network.
- Consider broadening the scope of OIA requests eligible for public release.
- Review OIA practices during the 2020 and 2021 lockdowns to ensure Te Tāhū can meet its obligations under the OIA should a lockdown or emergency occur in the future.
- Review and update written guidance on Te Tāhū’s interactions with Ministers’ office on departmental OIA requests incorporating my suggestions to ensure practice and written resources are in alignment.
- Ensure the guidance on Ministerial interactions is discussed and agreed with the Minister’s office.
- Review and update media policy incorporating my suggestions.
- Amend the Communications Services team’s practices to ensure that full and accurate records are created, maintained, and stored accessibly.
- Ensure all responses to information requests are dealt with in accordance with the provisions of the OIA, including citing the reasons for refusal and the requester’s right to complain to me where requests are fully or partially refused.
- Ensure messaging from senior leaders reinforces that requests for information handled by the Communications Services team must adhere to the OIA.
- Ensure all documents proactively released, are searchable and not ‘image only’, and all visual elements are tagged with alternative text.
- Ensure all documents provided to OIA requesters are searchable and not ‘image only’.
Performance monitoring and learning
Te Tāhū collects a variety of information on the OIA requests it receives. Recorded information largely focuses on request progress and compliance with the maximum statutory timeframe. I consider Te Tāhū would benefit from expanding the range of data it collects. Te Tāhū has advised that the Ministerial Relations and Services team creates a variety of reports using data collected in JAX. However, I suggest Te Tāhū considers improving details in its regular reporting of statistics to senior leadership.
Te Tāhū has a robust peer review process for OIA responses but does not have a post-closure quality assurance process. Quality assurance is conducted once the process of responding to the request is complete, and has a broader focus on the effectiveness of the process as a whole. I encourage Te Tāhū to develop a quality assurance process for completed requests, given the valuable qualitative data that can be gained.
Te Tāhū has advised that its Legal team has shared information about recent Ombudsman investigations, including guidance issued by my Office, at Ministry-wide Official Correspondence meetings. However, I consider that Te Tāhū would benefit from a formalised process to ensure case notes, lessons from investigation outcomes, and guidance published by my Office are incorporated into Te Tāhū’s practices and guidance where relevant.
Action points: Performance monitoring and learning
- Collect and analyse further qualitative data on the handling of OIA requests.
- Improve details in regular reporting of statistics to senior leadership.
- Develop a formal quality assurance process for completed OIA requests.
- Formalise the process for learning from Ombudsman investigations and guidance, and reflect this in OIA policy and procedures.