Squeaky wheel doesn't get the grease

Complaints about the State are on the rise, but there are few there to do anything about them

The Office of the Ombudsman is one of the few oversight bodies for the actions of State agencies & government departments. Although the Ombudsman has no coercive powers (e.g. a ruling from the Ombudsman cannot force an agency to do something), the compliance (or lack thereof) of government departments – particularly for requests for information under the Official Information Act (OIA) - is reported to Parliament, and ultimately to the people of New Zealand.

However, the Office of the Ombudsman is clearly reeling from the very large number of complaints the office has received – as at March 1st the office had 2,800 complaints. Over 450 had yet to even be allocated to an investigator. Indymedia recently received a letter from the office saying that they had insufficient investigators and in effect no idea when a particular complaint would be able to be dealt with.

The Annual Report of the Ombudsman from last year indicates that they received 10,636 complaints and other contacts, an increase of 22 per cent on 2010/11 numbers. As tellingly, they received 1,236 OIA complaints, an increase of 25 per cent on 2010/11 numbers, and the highest number since 2000/01.

When the state sets about drafting legislation, we are often placated about our concerns by being told that there is sufficient ‘oversight’ through agencies like the Ombudsman both to provide protection for us from state abuses, and to expose the workings (or failings) of government. These agencies are supposed to provide some avenue for redress for ordinary people against the enormous resources and invasive powers of the state. However, it is clear that at least two things are going on: one, oversight agencies like the Ombudsman are being starved of resources as is evidence by the lack of people to deal with complaints, and two, the sheer number of complaints and problems people are having with government departments is on the rise.

The Official Information Act replaced the Official Secrets Act in 1982, but it is clear that little has changed since the dark ages inside many government agencies. Similarly, the rise of privatisation and contracting out services mean that the opaque operations of corporate service providers are effectively unable to be scruntinised by the public due to ‘commerical sensitivity’ clauses both under the OIA and Local Government Act (LOGIMA) irrespective of Ombudsman or other oversight.

The Law Commission reviewed the OIA last year and has made some recommendations. A number of commentators have indicated that the review is a mixed bag, providing some good and bad for the public. On one hand, it should clarify the circumstances under which information can be withheld from the public and it requires government agencies to be more ‘proactive’ in releasing material. On the other hand, it extends the ‘commerical sensitivity’ exemption by adding exemptions for ‘competitive position and financial interests.’ Moreover, it puts more burden on ordinary people to make clear their requests for information.

In the US, this requirement under the Freedom of Information Act essentially requires that YOU identify the specific record that you want. This is a huge burden to place on people who simply have no idea about how records are created and managed.

There is no suggestion by the Law Commission that the Ombudsman should have enforcement powers to require agencies to release information. This is a major problem since ultimately, agencies will simply hold out until the information no longer holds the same potential embarrassment or accountability threat. The public really does not have any right to know since none of these government departments can actually be required to do anything. The continued withholding of the legal opinion in the government’s employment law change prompted by threats from the thugs who funded the Hobbit is a good case in point.

There is good reason to champion a stronger Official Information Act. There is little reason to think that doing so will get us one.

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