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