Legal Beagle by Graeme Edgeler

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Legal Beagle: Adventures in the OIA or: Why Don Brash wanted to lead ACT

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  • Rowan Crawford, in reply to Idiot Savant,

    Bugger. Thanks for the fix on the URL.

    Auckland • Since Oct 2008 • 27 posts Report Reply

  • izogi, in reply to Craig Ranapia,

    But compliance? That’s more of a curate’s egg. Idiot/Savant’s done some excellent analysis, and I think a fair summary is that compliance continues to be, at best, patchy and too often downright Kalfka-esque.

    Yes that's true and there's a hell of a lot of room for improvement, both for tracking compliance internally and for pushing how serious it is. I think some CE's need a slap in the face about the OIA, but then it's not always in the Minister's interests for departments to be compliant or sometimes they just don't care because they don't see it as being a primary part of their role, which is stupid. The top people at Defence (for instance) probably still see the OIA as a big inconvenience rather than a way to gain some trust with the populace, and that needs much more than just enforcing compliance to change.

    We had a fairly good internal workflow system and very good staff for tracking compliance (I think), but the whole thing seemed inefficient within government generally. Everyone runs their own independent OIA tracking, and most departments also end up tracking stuff on behalf of ministers and trying to manage complex arrangements where ministers insist on about sending printed paper copies back and forth 50 times for checking and redrafting. I'm sure some ministers are better than others.

    Some departments have brilliant systems that'll tell them exactly where every OIA is, who's responsible, when it's due and if it's overdue. Others have crappy systems or maybe just push paper around people's desks in coloured folders (which might be fine in some circumstances), and some have no system at all. Then staff switch around and people are new in jobs and have inconsistent ideas of whether things are working days despite them being defined in the Act, and all kinds of stuff.

    Everyone's meant to be following exactly the same rules, and it'd make lots of sense for OIAs to be tracked (and then policed) by someone designated as responsible and external to most departments, who'd take requests directly (allowing for tracking) and then forward them on. Maybe the Ombudsman with proper funding, or another miscellaneous box within Internal Affairs. That way it'd be consistent, departments could use a system from that entity to track what they need to get done rather than have to (50 times) build their own, requestors could be clearly told straight away when to expect a reply, and there could be reliable stats published regularly. Maybe questions could be published as they're submitted (as with the FYI site) to make the OIA process more transparent to everyone, although I'm sure some journalists wouldn't like that. Beyond a certain point it needs a sympathetic government to get it going, though.

    Wellington • Since Jan 2007 • 1139 posts Report Reply

  • David Hawke,

    Re Yellowcake approval by ERMA under the Hazardous Substances & New Organisms Act: A shameless amateur speaking here, but I thought that radioactive material does not come under the HSNO Act. The hazard classification system used by the the HSNO Act is the United Nations Globally Harmonised System, which has 9 hazard classes. Except that the HSNO Act leaves out Class 7 Radioactive Materials, because the regulation of radioactive material is covered by other pieces of legislation (especially the Radiation Protection Act).

    Christchurch • Since May 2011 • 1 posts Report Reply

  • Graeme Edgeler,

    A shameless amateur speaking here, but I thought that radioactive material does not come under the HSNO Act.

    Yellowcake is also toxic.

    HSNO Act, s 2:

    hazardous substance means, unless expressly provided otherwise by regulations, any substance—

    (a) with 1 or more of the following intrinsic properties:
    (i) explosiveness:
    (ii) flammability:
    (iii) a capacity to oxidise:
    (iv) corrosiveness:
    (v) toxicity (including chronic toxicity):
    (vi) ecotoxicity, with or without bioaccumulation; or

    (b) which on contact with air or water (other than air or water where the temperature or pressure has been artificially increased or decreased) generates a substance with any 1 or more of the properties specified in paragraph (a).

    Section 51 of the HSNO Act deals with transhipment:

    51 Transhipment of substances and organisms
    (1) Nothing in this Act shall apply to any hazardous substance or new organism transhipped through New Zealand where any person has—

    (a) received approval from the Authority to tranship the hazardous substances or new organism; and
    (b) complied with any controls that the Authority has imposed on the transhipment.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Andrew E, in reply to izogi,

    The system you're describing is pretty similar to that used in Canada for quite a while, known by its acronym, CAIRS. I think the Harper government got rid of CAIRS though. There are reasons to be in favour of a system like that, but it can also be used as an instrument of control and manipulation.

    A country with a more advanced request-making, tracking and appeals mechanism - which enables the stats to be produced as you go - is that developed in Mexico. Originally known as SISI, it's on to its second version already, and is now called InfoMex. It is basically a big database of requests, with 3 types of user: people making requests, agencies responding to requests, and the Information Commission adjudicating appeals. Requesters can lodge their request in the system, the agency officials check the system 'inbox' for their agency each day, responses are sent back out via the system (as are requests for clarification of the request etc) and if the requester is unhappy with the response, they can file their appeal to the Information Commissioners via the same system. Nothing can get 'lost in the post', all delays are systematically recorded, and so on, and so on.

    It has less of a downside in terms of potential for control and manipulation as the system has been developed, and is hosted by, the Information Commission (which plays the role equivalent to our Ombudsmen). Whether government agencies there have developed their own parallel systems for ensuring coordination between themselves (and that their responses are from the same hymn sheet) is something I don't know.

    As far as I know, the Mexicans are willing to give the software to other jurisdictions for free (they've done this with other Latin American countries), so - as you suggested, and with most things needed to make the OIA work - all that's needed is the political willpower.


    ETA - the Mexicans have also tied this in to what is known as a 'disclosure log', that they call 'Zoom', which contains the agency responses to previous requests.

    174.77 x 41.28 • Since Sep 2008 • 200 posts Report Reply

  • DaveClemens, in reply to Rowan Crawford,

    Been meaning to says thanks for your efforts on the OIA site Rowan. I'd dreamed of doing somethings similar years back , inspired back then by Alasdair Roberts and the Canadian CAIRS site, but never followed through with it.

    Kind of sad that the recent OIA review only received around 20 submissions by its close off date though. The earlier OIA review, back in the 90's, was hardly flooded with submissions either.
    http://www.radionz.co.nz/news/political/63813/20-submissions-received-on-oia-review

    Christchurch • Since May 2011 • 2 posts Report Reply

  • DaveClemens, in reply to Andrew E,

    Andrew, The Mexican Zoom search facility sounds rather interesting.
    I wondered some years back how easy it might be to request OIA 'request logs' from NZ agencies, and perhaps then make that meta data searchable. Having surveyed over 50 agencies I came away convinced that this was unlikely to be an option at that time.
    Maybe in the age of the Public Records Act that's no longer such a pipe dream...

    Christchurch • Since May 2011 • 2 posts Report Reply

  • Rowan Crawford, in reply to DaveClemens,

    Been meaning to says thanks for your efforts on the OIA site Rowan. I'd dreamed of doing somethings similar years back , inspired back then by Alasdair Roberts and the Canadian CAIRS site, but never followed through with it.

    Absolutely my pleasure.

    If MySociety and WhatDoTheyKnow.com hadn't blazed the trail, there's no way fyi.org.nz would have gotten as far as it has.

    Apparently, though, they got a google grant to advertise for them for FOI type keywords, which drove a lot of early adoption. Sadly no such arrangement is available for New Zealand. Mind you, it's third for "make oia request" so that's not terrible.

    Auckland • Since Oct 2008 • 27 posts Report Reply

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