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Should agencies be punished for breaching the OIA?
By Steven | March 20, 2009
Stephen Franks makes an interesting comment in response to my post below, where I argued that the Department of Corrections breached the Official Information Act. Should agencies be punished for wilful breaches? (There are no sanctions for breach of the OIA, except criticism from the Ombudsmen). Are we becoming increasingly disdainful of laws that can’t or won’t be properly enforced?
Taking the second question first: I agree with Stephen that there are laws that seem to work by not working. Another example is some of the possession offences in our censorship legislation. After a decision in 1997, for instance, it was an offence to be in possession of a particular edition of New Truth and TV Extra, which ended up being banned for some advertisements it contained. But nobody got prosecuted for having a copy in a pile in the garage.
Still, I don’t think the OIA is one of those laws. My research (and Nicola White’s book Free and Frank: Making the Official Information Act 1982 Work Better) showed that it works well most of the time, and that it’s had a useful effect in improving the quality of advice officials are providing (and probably making sure that the edgier stuff is never written down).
We also both concluded that most breaches of the OIA aren’t really wilful: they’re based on a misunderstanding of the OIA or the pressure of competing priorities for officials’ time and resources.
Still, there are plainly occasions in which agencies or Ministers deliberately flout the law to avoid releasing embarrassing information. They stonewall, even after complaints are made to the Ombudsmen. They adopt ridiculously wide interpretations of the withholding provisions. They don’t conduct a good-faith balance of the public interest that may be served by releasing information. They impose obstructive charges to deter requests. Should there be punishment for this?
There’s a good case for it, I think. Where the Ombudsmen find that agencies have been unjustifiably obstructive, the agency could be forced to reimburse the Ombudsmen’s office for its investigation time, say at the same rate that agencies can charge requesters to retrieve the information. (Is this just shuffling money from one government agency to another? Perhaps, but most are concerned enough about their budgets that this may provide some disincentive).
Even more effective, though, would be prompt and public denunciation by the Ombudsmen. The media would be happy to print it. Along with that, I think that the Ombudsmen should write to any agency that is spinning out the process unjustifiably, give them a deadline, and say that if no response is received they will automatically uphold the complaint and order the release of the information (or at least determine the complaint in the absence of the department’s response).
I gather some Australian FOI regimes have criminal penalties for obstructive behaviour. I’d be interested in how those have worked out…
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