Court’s decision on TPP OIA has both Nats and Ombudsman squirming

Written By: - Date published: 10:44 am, October 15th, 2015 - 23 comments
Categories: Abuse of power, accountability, law - Tags: , , , , , , ,

As recently covered here, the High Court has upheld Jane Kelsey’s application for a declaration that the Government and Tim Groser improperly considered her application for information concerning the TPPA negotiations.

The Nats aren’t happy:

Govt considers TPP OIA appeal

The government is considering whether to appeal against a court decision finding Trade Minister Tim Groser acted unlawfully in the way he rejected requests for information about the Trans-Pacific Partnership (TPP) negotiations.
…
Green Party MP Russel Norman said he hoped the court decision would mean an end to the National-led government’s abuse of the OIA.

“John Key’s statement suggests that the ministers in his government routinely are in breach of the Official Information Act.

“Really that’s no surprise when the Prime Minister himself advised public servants and ministers to routinely break the act when he said ‘we delay stuff as long as we can’ when the act is absolutely clear that the government should release information as soon as possible.”

The Ombudsman isn’t happy either – how’s this for defensive:

Chief Ombudsman’s statement on High Court TPPA Decision

The High Court’s decision released today requiring the Minister of Trade to reconsider his decision relating to Professor Jane Kelsey’s request for information about the TPPA relates only to the decision making process followed by the Minister.
…
Any suggestion that the Court passed judgement on the merits of the Chief Ombudsman’s decision is incorrect.

Mmmmmkay.

Both Nats and Ombudsman would be well advised to take three deep breaths, and read this typically excellent piece by Prof. Andrew Geddis:

Comes the rule with no exception

Jane Kelsey’s court victory over the evil MFAT/Tim Groser empire is probably too little, too late for her campaign against the TPPA. But it sends some important messages to a range of public actors in New Zealand’s governing arrangements.
…
The problem with this [Groser’s] approach is that it runs completely counter to the OIA’s basic purpose – to make any and all information available unless one of the specific reasons in the legislation applies. For the information holder to decide that it won’t provide information without actually looking at it and considering if there is a valid statutory reason for refusing its release inverts the way the OIA is supposed to work.

Furthermore, the OIA has provisions within it to deal with requests for large amounts of information. If it would take a long time to go through the material and decide on its release, the agency holding the information can extend the time limits contained in the OIA. And if it would be very costly to comply with the request, then a “reasonable” charge can be levied for doing so.

However, MFAT/Tim Groser didn’t give any consideration to these options before issuing their blanket refusal. Which means that they didn’t comply with what the legislation requires, making the decision unlawful. And so Justice Collins told them to go away and make the decision again, this time after doing what the OIA says. …

That’s pretty definitive. And just for the Ombudsman:

The third audience for this judgment is the Ombudsman’s office, and the Chief Ombudsman Beverley Wakem in particular. Because it is fair to say that she does not come out of the judgment all that well. Not only does Justice Collins find that she apparently misunderstands how a quite key legal test under the OIA is meant to apply (at para. [139]), but her failure to pick up MFAT/Tim Groser’s ignoring of proper process is quite concerning.

After all, the Ombudsman is meant to be the primary check on those who hold official information failing to abide by their legal obligations. If that office is not noticing those failures – if it is basically waving through decisions that fail to comply with the OIA – then what is a citizen to do?

Prof. Jane Kelsey showed us one option a citizen can pursue – the courts. But not everyone has the skills, resources and determination to do it. Better that the system just works as it should – as the High Court has just reminded those in power.

23 comments on “Court’s decision on TPP OIA has both Nats and Ombudsman squirming ”

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  1. dukeofurl 1
    15 October 2015 at 11:15 am

    Who will rid me of this turbulent OIA priest ?

    Cant see to find the Ombusman office decision online which declined to back Kelsey up.

  2. Stuff the Politicians 2
    15 October 2015 at 12:36 pm

    To these modern day politicians, the process of democracy is just a nuisance.

    This shows how easy it would be for a country to slip into a dictatorship if the correct procedures are not followed.

    Thank goodness for the likes of Prof Jane Kelsey.

  3. Tracey 3
    15 October 2015 at 12:52 pm

    This is an example of where the appointment of the Ombudsmen is VERY important. Oversight of the Ombudsmen is crucial and so is RESOURCING of the office. If you are not a professor of law or a wealthy person you have to sit back and watch months (and sometimes years) pass before the O’s office can get to you. Government departments know this and, in my experience, abuse it by defaulting to refusal knowing how long followup will take.

    Nats will appeal so it goes beyond the 30 days when all information of the agreement will be released BUT something tells me they dont want their cost/benefit analysis released until they absolutely have to. Which is odd given how sure they are the deal is “good” for NZ

  4. Tracey 4
    15 October 2015 at 1:01 pm

    This was a judicial review type process. The Court, as far as I can tell, has not said Groser should have released the information, it has said he and his office wilfully ignored the proper process to following in reaching the decision to not release. Hence it is sent back to be decided by following the correct process.

    No need to appeal surely, just go through the correct process this time and your original decision will be justified, right Timmy?

  6. Robert Glennie 6
    15 October 2015 at 2:48 pm

    With the help of https://www.fyi.org.nz I have filed a request for information from Mr Groser regarding the effects of the Trans Pacific Partnership Agreement on New Zealanders human rights and our obligations in this regard overseas. I got a nice long detailed answer that did everything BUT answer my questions.

    Trying again. Complaining to the Ombudsman is on the cards if this does not work out.

    • Ilicit 6.1
      15 October 2015 at 3:39 pm

      Good luck, seems the government finds all sorts of spin (on any subject) instead of a proper response.

      And given the irresponsibility of the OIA Ombudsman, a political appointee, I don’t hold high hopes for your challenge.

    • Mike the Savage One 6.2
      15 October 2015 at 4:03 pm

      I would not pin that much hope in the present Ombudsman, she is also going to be replaced soon, her age is well over the age an Ombudsman is meant to have while serving, she must retire a.s.a.p..

      • Tracey 6.2.1
        15 October 2015 at 4:10 pm

        ALL Ombudsmen have been hamstrung by a pitiful lack of resources arising from a cynical use of the system/process by Departments of our Government and their bosses.

  7. Mike the Savage One 7
    15 October 2015 at 4:00 pm

    Yep, both Ombudsmen we have are not that great at all, despite of the odd decisions that some have celebrated in the past. Ron Paterson seems to be rather soft on medical practitioners and also some state agencies when it comes to complaints about these, OIA related or otherwise. Beverley Wakem has made some appalling decisions, as I can gather, having read a few. She seems to be letting government agencies off too often, giving them more credit than any genuine complainant.

    It is time for a real shake-up in this area.

    If the government wants to appeal the court decision, then we can interpret this as a further attempt to cover up their breaches of the spirit and the law of the OIA.

  8. Tory 8
    15 October 2015 at 4:16 pm

    “Little takes the ball, he dribbles through the opposition like they were not there, his speed and timing are amazing to watch. He approaches the goal and shoots, it’s a ripper and the crowd roars!, right into the far right of the net, goal keeper Kelsey was powerless to stop that shot. Suddenly the crowd goes quiet, bigger, an own goal…”

  9. KJT 9
    15 October 2015 at 4:26 pm

    I await with breathless anticipation police charges for breaking the law.
    Or any admission of personal responsibility, from, the party of “personal responsibility”.

    • The lost sheep 9.1
      15 October 2015 at 5:11 pm

      You will wait a long time KJT, as no one can be charged with ‘breaking the law’ under the OIA, nor are there any sanctions for failing to comply with it – apart from the requirement to go back and have another crack at doing it properly.

      • McFlock 9.1.1
        15 October 2015 at 5:16 pm

        and, of course, the government’s complete lack of integrity and their constant refusal to take personal responsibility for their incompetence.

      • tracey 9.1.2
        16 October 2015 at 10:03 am

        True enough

        but

        note something the Judge said…

        The Act (OIA)
        ‘plays a significant role in New Zealand’s constitutional and democratic arrangements. It is essential the Act’s meaning and purpose is fully honoured by those required to consider the release of official information… The orders I have made reinforce to the Minister and other decision-makers the importance of discharging their responsibilities under the Act and promote future compliance’.

        • One Anonymous Bloke 9.1.2.1
          16 October 2015 at 7:40 pm

          What are the sanctions available to the courts if Groser (or some other compromised trougher) embodies everything the National Party represents by continuing down his illegal path?

      • Craig H 9.1.3
        16 October 2015 at 7:25 pm

        True, but the law can be enforced by a court order, and if that’s not complied with, Contempt of Court is on the table.

  10. KJT 10
    15 October 2015 at 5:27 pm

    Pity. Responsibility obviously does not apply in Government.

  11. KJT 11
    15 October 2015 at 5:33 pm

    If we could hold politicians to the same professional standard as builders, for example, we could charge them with serial child abuse for the 300 000 children they have neglected.

    • Draco T Bastard 11.1
      15 October 2015 at 9:15 pm

      Considering that this governments policies have likely resulted in increased suicide we should probably be charging them with murder. Life sentences for the entire government.