The Official Information Act, and the Art of Not Releasing

New Zealand’s Official Information Act begins with a principle most countries never wrote down: information held by the government shall be made available unless there is good reason to withhold it. Availability is the default. Secrecy has to justify itself. On paper, it is one of the most open information regimes in the world, and it has been since 1982.

This week offered a live demonstration of the other half of the machine. Immigration Minister Erica Stanford declined to release a file that Winston Peters, her own coalition partner, says would prove the Government covertly changed migration settings to target Indian nationals. Whatever the file says, the episode is a useful specimen, because refusing to release things is not a malfunction of the OIA. It is a feature with its own user manual.

The Act lists the good reasons. Some are conclusive, such as genuine national security. Most are balanced against the public interest, and this is where the craft comes in. The workhorses are “free and frank advice”, which protects officials’ candour and can be stretched to cover almost anything a minister was told, and “confidentiality of advice tendered by ministers”, which does similar work one floor up. There is also the humble time extension, the transfer to another agency, and the release on a Friday afternoon before a long weekend, none of which are in the statute but all of which are in the culture.

The backstop is the Ombudsman, who can investigate a refusal and form an opinion that the information should be released. Governments almost always comply with those opinions, which is genuinely to the system’s credit. The catch is time. An Ombudsman’s investigation can take months, sometimes longer, and information has a half-life. A document released eighteen months after the controversy it concerns is a historical artefact. The refusal did not have to hold forever. It only had to hold until the news cycle moved.

So the honest summary of the OIA is this. It is a good law, it has real teeth, and it operates on a timetable that favours whoever is holding the paper. When a minister says information cannot be released, the correct reading is not that the law forbids it. The law presumes the opposite. The correct reading is that someone has decided the reasons for withholding outweigh the public interest, and that decision is itself a piece of information, available to you immediately, at no charge.