In a recent update ‘Document confirms Minister’s estimate of lives saved by seismic policy was fabricated’ we explained how MBIE had hidden, for nearly five months, the document that showed how the estimate of “335 lives saved over the next 100 years” was calculated. The document was an embarrassment because it showed that the estimate relied on the absurd assumption that cities that had been affected by earthquakes were rebuilt to the pre-quake standards and that new buildings would also be built to low historical standards.
MBIE didn’t want us to point out the flaws to the public and to to the Select Committee, so we did not obtain the document, following a request to the Minister, until after the Committee had reported.
In a follow-up request we asked why the document had not been provided when we received some other documents under the OIA. We received a letter with the following response.
“As detailed in our response dated 2 October, this document was not released to you in our response of OIA 1614 of 12 August 2015 as the information was contained in an e-mail. On 17 July 2015 we wrote to you about the substantial collation your request involved, and proposed refining the scope to exclude e-mails. We received no response, so proceeded on the basis of the refined scope, supplying the substantive material, briefing and aide memoire, but refusing, on substantial collation grounds, the e-mail correspondence”
This explanation is absurd. MBIE knew exactly what we wanted, e-mails are documents, and it does not provide ‘substantial collation’ to provide a single e-mail trail with a document attached.
The offer to refine the scope of the request (two months after the OIA request was made) was an obvious trap. We did not know that the key document was attached to an e-mail, and were being induced to exclude e-mails from the request to address the ‘substantial collation’ issue. That would have put MBIE off the hook with respect to providing the document.
We did not fall for the trap. But no matter, MBIE took it upon themselves to ‘refine’ the scope of the request for us. There is no provision in the OIA for them to do so. The Act has this to say about amendments or clarifications.
“15(1 AA) If a request (the original request) is amended or clarified after the date on which it is received, the department or Minister of the Crown or organisation that receives the request may treat the amended or clarified request as a new request that, for the purposes of subsection (1), replaces the original request.”
There can be no suggestion here that agencies can unilaterally amend requests. If that were so the OIA would be vitiated. All requests would be what ever an agency wanted them to be. In any event (1 AB) states:
“However, subsection (1AA) does not apply if—
(a) the original request is amended or clarified because the department or Minister of the Crown or organisation to which the request was made sought an amendment to, or a clarification of, the request; and
(b) the department or Minister of the Crown or organisation did not seek that amendment or clarification within 7 working days after receiving the original request.”
If MBIE wanted to play the ‘unilateral amendment’ game it was out of time.
MBIE’s explanation was not a botched response from a junior staffer. The letter was signed by Derek Baxter, Acting General Manager, Building System Performance.
What MBIE has not explained was why the Martin Jenkins report on the number of deaths was only available in an e-mail to the Minister. MBIE directed the authors of the report on the methodology, and presumably managed the contract. Was MBIE so embarrassed by the document that they didn’t want a copy in their files? Or did they deliberately not keep a copy to defeat a possible OIA request?
It is also clear that MBIE’s initial grounds for refusing the request “making available of the information requested would constitute contempt of Court or the House of Representatives” was a deliberate falsehood. How could making available a document that the Select Committee could not have seen and did not know about be contempt?
We will be complaining to the Ombudsman on this matter (a complaint has already been made about the delays and equally absurd ‘contempt’ excuse), but this will do little good. MBIE has achieved its purpose of delay; the Ombudsman is snowed under with complaints and may take years to get to it; and it is unlikely that there will be any negative implications for those responsible. Indeed, successfully delaying this embarrassing release could be a positive performance indicator.
The Ombudsman is currently conducting a review of OIA practices. We think she should consider the incentives on agencies to comply with spirit and letter of the law. If an agency has a culture where non-compliance is not regarded as a serious matter; where there are no penalties for non-compliance; and where senior management are in on a cover-up, then the incentives not to engage in the chicanery we have seen in this case are weak.
We think there should be criminal penalties for serious non-compliance with the OIA, which would apply to the chief executive. If there was a risk that a chief executive could be prosecuted for egregious breaches of the OIA, the incentive structure alters radically, and agency cultures would quickly change. This not an outlandish suggestion. The Securities Act provides for criminal penalties for directors and certain other company officers when untrue statements are made in prospectuses and other documents. This risk has a material impact on compliance with that act.
We think that the Securities Act comparison is apposite. Honest compliance with disclosure requirements is part of the fabric that makes markets work more efficiently. The OIA is part of New Zealand’s constitutional fabric and similarly needs to have criminal sanctions in reserve to work well.