During a recent public consultation on the future of Archives New Zealand, a key report was suppressed. The Ombudsman has ruled that the refusal was unjustified. Sadly, the consultation was over by the time of the the decision has been made. However, the law on the use of the Official Information Act has been clarified.
While there may not be a legal obligation to follow the rules of engagement during a consultation (when it is not required under a statute), an innocent might expect a democratic government to follow them. The rules can be summarised as
- a genuine effort;
- sufficient time;
- sufficient information;
- meaningful discussion; and
- an open mind on the part of the decider.
Their spirit is so regularly breached, that you might think this column is to remind readers of the frequency of the breach. However, the case resulted in the settling of a nice point of law.
To reprise: the 2017 Labour election manifesto promised to move Archives New Zealand and the National Library from the Department of Internal Affairs (DIA). The incoming government established a committee to examine the options. The National Archival and Library Institutions Ministerial Group called for submissions which gave the appearance that it wanted to consult with the public. The overwhelming public reaction was that the DIA had been a poor steward of the two institutions and that they should be moved elsewhere in the government system.
Meanwhile, the DIA commissioned a report from a private-sector policy adviser who was also a lawyer. The terms of reference were tight, assuming the two would remain in the DIA.
You would have expected that, under the rules of consultation engagement, the report would have been made available to the public. It would have shaped what they had to say and, for anyone with an open mind, it would be useful to have a critical review of its arguments. (From the reactions I hear, the criticism would have been very strong. A major concern of mine is that, despite the claim of the DIA that the report was by a lawyer, it paid no attention to the constitutional role of the Chief Archivist.)
But the DIA did not make the report available when asked for it under the Official Information Act because, it argued, ‘legal privilege’ applied. Briefly, the provision means that confidential legal advice need not be disclosed – a necessary protection for the effective workings of the law.
But the DIA failed to distinguish between ‘legal advice’ and ‘advice by a lawyer’. (A lawyer telling you not to cross the road because of heavy traffic is hardly offering legal advice.) There was no legal advice in the report, for the issue had nothing to do with litigation; it contained only policy advice. If the DIA were correct about this justification for refusing to show a report, OIA requests on any policy paper, and many others, could have been rejected by the writers asking a lawyer to join in the signing off and then claiming legal privilege. The effect would have been one of the most effective ways to undermine the OIA in its 47 years.
The next step was an appeal to the Ombudsman who, in due course, made the obvious ruling – albeit in the measured tones of a judge rather than the simplifications of a columnist. However, blocking departments have a back-up resistance. We underfund the Ombudsman’s office so there are long delays before the decision can be made. As a result, the decision was released long after the consultation had finished, so the public had no access to the report. The rules of consultative engagement had been ignored.
The policy report was released about the same time that the government made its announcement on changes to the administration of Archives New Zealand and the National Library. Only innocents will be surprised that the proposed changes ignored the public’s submissions and essentially adopted the recommendations of the secret policy report, whose outcome was constrained by the department’s determined terms of reference.
A summary of the proposed changes goes back to when the two independent institutions were merged into the DIA. The DIA had made numerous promises about maintaining their integrity. As soon as the merger took place, it abandoned the promises, which is why there is so much anger towards the DIA stewardship. The proposed changes keep the Archives New Zealand and the New Zealand Library in the DIA but shift their treatment back towards the regime which the DIA had promised earlier. (They also foreshadow a possible merger of the two institutions, thereby ignoring the constitutional role of Archives New Zealand, as centralists are wont to do.) There is no reason to think they cannot abandon their promises again, once our backs are turned.
There is a final curious part to the story. Following the Ombudsman’s ruling, and given that the changes had been approved, the DIA agreed that the policy report should be released. Of course, they were not proposing to apologise for the delay.
However the DIA minister, Tracey Martin, continued to resist the release. There is no hint in the available papers why she really wanted the report to continue to be hidden from the public. Perhaps she realised that the release would demonstrate that the earlier public consultation was a farce and that she ought to apologise to us all for breaching the consultation engagement rules. Even innocents do not expect apologies.
Footnote: Here are a set of earlier columns, all related to this column.
Whither Archives New Zealand and The National Library? (2 August, 2018)
Ake, Ake, Ake (21 August, 2018)
Of Memory and Forgetting (20 November, 2018)
How to Reduce Accountability: Downgrade the Chief Archivist! (20 June, 2019)
In Praise Of Dictators – Those Under The Control Of Representative Democracy. (24 September, 2019)
The Attack on Literacy (7 January, 2020)
Fahrenheit 451 (13 January, 2020)
Manifesto for the Text. (5 February, 2020)
Consultation and Generic Managers (26 February, 2020)