Integrity Briefing: Still a “game of hide and seek” – 30+ years of OIA shenanigans
Today’s “Integrity Briefing” is written by The Integrity Institute’s Jem Traylen. Jem has just started working for The Institute, after a career first in the public service, and then in journalism. Most recently, she has worked from 2021 to 2025 for BusinessDesk. At BusinessDesk, she was responsible for reporting on the public service, and during this time, she shone a light on issues of integrity deficits, transparency problems, and conflicts of interest. In working for The Integrity Institute as a Senior Researcher, Jem is now continuing that focus on the public sector and has a number of exciting projects to bring out over the next year. She will also write Integrity Briefings on public sector issues. Today is an important one – on “open government” issues. Jem details her own history with the Official Information Act, and looks at outgoing Chief Ombudsman Peter Boshier’s recent statements about reforming the OIA to improve New Zealand’s integrity systems.
Jem Traylen: Still a “game of hide and seek” – 30+ years of OIA shenanigans
More than three decades ago, the office of the then Prime Minister Jim Bolger received a request “under the Official Information Act” (OIA) for the advice he had been given on a key speech he made supporting his government’s controversial “Mother of All Budgets”.
The year was 1991, and this was ground zero for the ongoing “game of hide and seek” between government officials and those trying to hold them to account using the OIA, such as journalists, activists, and, in this case, Opposition MPs.
At least that’s how the late Peter Neilson, a former minister in the Fourth Labour Government, told it when I asked him a few years ago about his recollections on the OIA. Neilson said his government had really been the first to be on the receiving end of the OIA (it came into effect a year before it was elected), and by the time Labour was back in opposition, it had figured out how to weaponize it.
This was how it ended up with a relatively unredacted document advising Bolger on not just what to say in his speech but, more crucially, how to deliver it. Cue one very humiliating press release mocking the PM.
Cause and effect?
The opposition attack didn’t make the slightest dent in the Bolger Government’s position. Still, it ruffled enough feathers that all politically sensitive OIA requests were henceforth handled through a centralized process within the Beehive, which led to delays and redacted responses that have been complained about ever since.
By the time I started my own career as a public servant about a decade later, the rot had spread far from the Beehive.
A few weeks into my job as a Ministry of Economic Development policy analyst, I was sternly told off for “creating a discoverable document”. I was then schooled in the ministry’s modus operandi to avoid putting anything on paper concerning anything that someone might ask questions about.
A colleague told me of a similar experience they had when they were working at the Treasury. They had been told off for emailing someone their feedback on a draft report. They were instructed to only provide handwritten comments on post-it notes that would be shredded after the report was finalized.
Even when records were created, constant restructuring and constant migration to the supposedly latest and best “knowledge management” systems have left filing systems in disarray.
At the outset of a policy project for the Ministry for Primary Industries, I was informed that a consultant’s report had been written on the very topic just a few years earlier. Frantic searching of the department’s electronic filing cabinet failed to locate it – but several weeks later, and too late to be of any use, a colleague finally located a hard copy.
If someone embedded in the public service has these kinds of problems locating important documents, then how much harder it must be for people on the outside to get information from an agency.
A matter of public record?
So, it’s gratifying to see the outgoing Chief Ombudsman Peter Boshier highlight the public service’s lack of compliance with the Public Records Act (PRA) in his final reflections on the OIA – see: The Chief Ombudsman’s reflections on the Official Information Act
Boshier said that a greater focus on the PRA might be needed if New Zealand was to regain top place in the Transparency International Corruption Perceptions Index. He even suggested it was a more urgent priority than fixing the OIA itself: “I think our citizenry would be best served by focusing on record keeping legislation, and the need to address any tendency not to create and maintain accessible records in the first place.”
Boshier was contemplating the need for both stronger sanctions for infringing the PRA as well as giving the chief archivist “additional tools” to detect non-compliance.
Defenders of the current regime will no doubt cherry-pick Boshier’s words that the OIA itself does not need a full overhaul, but the point he was trying to make is that much of the Act's drafting is fundamentally sound—the problem lies with “the overall OIA culture.” To put it another way, the rules are sound; it’s just that the players aren’t following them.
This is why he suggested “additional incentives and sanctions” could be needed to curb what he politely called “problem behaviour”.
Such behaviour was noted even from the early 1990s, when the Law Commission began to take an interest in the OIA and eventually put out a report on it in 1997 — when little attention was paid to it. An even more voluminous follow-up report was produced in 2012.
Around this time, the issue began to gain some traction, with Prime Minister John Key’s public admission that the government used delaying tactics and Boshier’s predecessor Dame Beverley Wakem releasing her 2015 watershed report on OIA practices titled “Not a Game of Hide and Seek.”
In turn, Boshier built on the Wakem report by setting up a permanent unit to examine such practices. This resulted in an ongoing series of reports that took progressively deeper dives into the issue.
The Need for Reform
While these reports have resulted in some improvements, as he leaves office, Boshier can still remark that he sees “far too many agencies taking a defensive approach to OIA requests.” Therefore, he is calling for serious consideration of a sanctions regime to address “misbehaviour.”
Labour made an election promise in 2020 to review the OIA, which it didn’t deliver on. In 2023, National promised one for this term of government but has yet to begin any work on it.
For those who might point at the latest OIA timeliness statistics, which have been improving, and ask whether there really is an issue, Boshier pointed out that they don’t measure whether agencies are meeting their actual legal obligation of responding “as soon as practicable.” He also said that in six out of the seven latest agency case studies, his office found practices contributing to delays.
Despite his downplaying of the need for an overhaul of the OIA legislation, Boshier has identified more than a dozen issues requiring legislative change to be fixed. For more on this, see Andrew Ecclestone’s analysis: Advocating for ‘culture change’: the Ombudsman endorses strengthening the OIA
Finally, as someone who used to be a journalist and has waited for up to two years for Ombudsman complaints to be resolved, there is an issue as to whether his office is adequately resourced for the vital watchdog role that it plays – see Nikki Macdonald’s article from September: OIA delay watchdog failing own timeliness targets
This is an excellent piece.
My own personal experience is with three common things. One is games where agencies take whatever view of the scope a request they deem is in their best interests - usually absurdly/kafka-esquly narrow - then add delays so that one gets no information and one's time wasted. Often connects with refusals under section 18(g).
Another is abuse of section 9(2)(b)(ii) by over-wide interpretation. Fisheries-related information is routinely withheld for these reasons but in principle very little of it "would be likely unreasonably to prejudice the commercial position" of anyone.
A third is an unwillingness to simply talk. If the principle of writing nothing down is a self-serving attempt to keep information in by a falsely narrow interpretation of the "information" (documents are not the same as information); this is a falsely wide interpretation of the very same term and the need to treat every query as an OIA.
The common thread is a defensive and combative culture, going with "knowing best" perhaps.
The legislation may benefit from allowing easier access to judicial review. It is all well (and very positive) to have access to the Ombudsman but it is slow in a justification-culture context where speed can be everything. The way the Ombudsman "works with the agency" in its reviews does not always have the appearance of a strictly neutral arbiter either, though it is usually very good. Recourse to the Courts, which could unleash a flood of claims and therefore change behaviour very quickly, could help. But have not thought this through fully.
The PRA points are good. I once suggested that I might go to the Archivist on suggestion from an agency that something major had been lost due to a computer crash, upon which that excuse promptly disappeared.
Too many of my OIA requests are answered incompletely because of the poor record keeping and inadequate filing systems of government departments. The excuse that it would take too long to find the requested information is a common response.
In my experience the reliance on electronic record keeping in the public service seems to be largely devoid of protocols for naming files and for using keywords to allow easy searching for information held electronically.
These are deficiencies that should be addressed via the Chief Archivist and the enforcement of the Public Records Act in conjunction with addressing the deficiencies of the operation of the Official Information Act.