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A few notes on the OIA scandal
By Steven | September 23, 2026
A Ministry of Education official has been caught on video telling staff not to write down their feedback from the Minister’s office because it is “OIA-able”.
It’s not good. It looks like an attempt to create a misleading impression that feedback on a draft curriculum didn’t come from the Minister’s office. It may be a breach of the Public Records Act, which requires officials to maintain ordinary prudent business records. It doesn’t directly infringe the Official Information Act, but may run foul of the requirements in the Ombudsman Act that official action not be “unreasonable, unjust, oppressive, or improperly discriminatory, or in accordance with a rule of law or any legislation or a practice that is or may be unreasonable, unjust, oppressive, or improperly discriminatory” or “wrong”. The Ombudsman is investigating.
So, a few things.
First, this happens. Outgoing Chief Ombudsman Sir Peter Boshier noted this concern in his departing remarks that some officials are not keeping proper records so that they are later accessible.
Second, it matters. One of the points of the OIA is to hold officials and Ministers accountable for their actions. We can’t do that if there’s no record.
Third, we don’t really know how much it happens. The nature of this tactic means it’s difficult to discover.
Fourth, I suspect it happens more than it used to. My impression is that the OIA is more politicised than it used to be, creating pressure for officials not to release things that embarrass the government. There’s evidence that Ministers (of both parties) are much more aware of the significant potential harm of OIA releases and focus on managing them better. There’s also evidence that Ministers occasionally try to bully officials into holding material back in response to OIA requests. I understand the thinking behind the “no surprises” policy, but I think a downside is that officials become more acutely aware of the impacts of OIA releases on their political masters.
Fifth, when it does happen, it’s not always evil. Not everything has to be recorded under the Public Records Act. It’s legitimate for some things to be handled by an unwritten discussion.
Sixth, when things are not written down, that does not mean that the OIA does not apply. The OIA gives us a legal right to “official information” even when it hasn’t been written down. You can ask for information about facts and states of affairs even if they are unwritten. Did the Minister meet with lobbyists? When? How often? Who was there? Was X topic discussed?
Seventh, despite what I’ve just said, when things are not written down it’s much harder to get the relevant information. Many requesters don’t know about the rule that you can ask for things that aren’t recorded in documents. Nor do many officials. Even when they do, memories may be vague. Things may be forgotten or omitted.
Finally, organisational culture matters a lot. In a healthy organisation, leaders and Ministers create norms of transparency and expectations that it’s not okay to try to evade the OIA.
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