Slippery Hipkins & the Official Information Act
The Ombudsman can't do anything about it - can we help?
Make no mistake, democracy is in crisis across the west. New Zealand’s government which promised openness, is as opaque as it has ever been; Ministers allegedly instruct new MPs to not write important information down; and courts struggle to transparently deliberate and judge the authority of science supplied by government officials versus evidence supplied by top scientists in the world.
In this maelstrom, the Official Information Act (OIA) is one of the few – increasingly fragile – instruments that stand in the way of unaccountable authoritarianism.
There is no transparency without a working Official Information Act; and nor can there be accountability. The Act, as Geoffrey Palmer and Andrew Butler have stated, is
‘One of the most critical elements in preventing corruption and engaging the citizens in the affairs of government is the Official Information Act. This Act is the engine of open government; which is such an important value. Public opinion is one of the checks against arbitrary power, but only if people know what is going on. As a famous American Judge Louis Brandeis once said:
‘Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.’
That is why we have the Official Information Act.
Ironically, despite much rhetoric about open government – we need to stand guard, and keep an eye out for practices that might erode the power of the Official Information Act.
The now-independent MP, Gaurav Sharma’s August 18 allegation that MPs elected in 2020 were forced to attend a workshop ahead of election year, where they were coached on how to handle information’ so as to avoid government information being captured in an OIA request, is the tip of an iceberg that distorts the democratic process.
The OIA is actively gamed. By extending response times, by systematic redactions, from the hiding of public officials names, to the privileging of private company data through confidentiality agreements. It’s capped off by an all to frequently, powerless Ombudsman.
As the New Zealand Council for Civil Liberties (NZCCL) states,
When talking to journalists, it's not whether they have a bad OIA story, but how many they have and how bad they are.
The OIA needs strengthening. As Palmer and Butler noted in 2018:
the Act is showing signs of its age and is serious need for refreshment. Despite two Law Commission reports [1997 2012] that have recommended important improvements to it, nothing has happened.
In 2018 the NZCCL added to the Law Commission’s call, and proposed significant changes to the Official Information Act and other associated laws (e.g. the Ombudsmen Act and Local Government Official Information and Meetings Act). In 2019 the NZCCL called for a comprehensive review.
In 2019 the Ministry of Justice conducted a survey, but I can’t identify a published report, only a reference to a September 2019 report on the Open Government Partnership. This site doesn’t do much in the public interest to promote transparency, as it is so blithely (‘transparently’) uninterested in updating the OIA. (Noting the comment above - that the OIA is the engine of open government). It seems to be more about securing legitimacy through performance art (Andrea Vance has called it an ‘artfully crafted mirage’).
NZCCL called for an Open Government Commission, it’s important not to get the two confused.
When we consider the extent of problems identified with those with much greater experience than I, the 2019 single page reference on the Open Government Partnership New Zealand website murmuring well intentioned platitudes, is well… underwhelming.
There is a major loophole that’s bugging me right now. It’s that once a Minister has shifted portfolios, they then escape any obligation to respond to the OIA request. At all.
When the Hon Chris Hipkins switched portfolios, he slipped through this loophole. He now doesn’t have to answer OIA requests regarding his decisions and activities relating to previous Ministerial portfolios. So when he refused to respond, and on June 20, 2022 deftly tossed the request to the Hon Verrall (who also booted it to the Ministry of Health….
The subject matter you raised falls within the portfolio responsibilities of the Minister of COVID 19. Your correspondence will therefore be transferred to the office of Hon Ayesha Verrall for her consideration.
I complained to the Ombudsman.
The complaint to the Ombudsman fell on deaf ears. Because the Ombudsman is impotent. Senior Advisor Victor Lee stated:
While I acknowledge your frustration at the Minister’s decision to transfer your request, this is not a matter that the Chief Ombudsman is able to investigate.
As you can see from the letter (image below)
‘the OIA does not provide the Ombudsman with authority to investigate complaints about the transfer of a request for official information’ – but the Ombudsmen Act might – ‘but Ministers of the Crown are not subject to the OA and the Ombudsman therefore has no jurisdiction to investigate such a complaint where it is made in relation to the transfer of a request by a Minister.’
This is nothing less than insane. And unjust. And bullshit.
Hipkins produced legislation that put in place surveillance, compulsory medication, quarantine and lockdown measures at an unprecedented pace. But he could then shift portfolios, jump ship and sail into the distance.
To become the Minister for Police. Which is a little concerning.
When I asked an expert in this matter, he stated that this was a known gap in the legislative framework, he acknowledged that it was a problem that successive governments have been happy not to address for decades.
Why hasn’t the Ombudsman’s office lobbied heavily for this change? Maybe this has been done. I dunno, mate.
As I’ve remarked, (ad nauseum) - the Hon Chris Hipkins was granted enormous powers under COVID-19 legislation.
Hipkins oversaw the production of extensive legislation. While his rules initially required health and border workers to submit to an mRNA injection, these rules were then extended to the public service, education, - and finally to the entire community.
It required the New Zealand population to be injected with a novel mRNA technology or face exclusion from economic and social life. From visiting national parks, to getting a drivers licence, to ordering coffee - the state shut out non-compliant publics.
I’m really interested how Hipkins deliberated over these laws, and how much information he had access to.
That is why I placed the OIA request in the first place.
YES, THE COVID RESPONSE WILL HAUNT FUTURE GOVERNMENTS
For those who have considered the governments COVID-19 campaign response to be appropriate, many others consider that there have been profound and systemic information failures. This includes systemic failures to review the scientific evidence; and publicly acknowledge that waning and harm was understood from early 2021; and to pay fair attention to the vaccine injured.
A recent OIA response from the Ministry of Health, dated September 21, 2022, has drawn attention to this failure, it demonstrates how few meaningful reviews of the scientific literature have been undertaken. For example, Dr Ian Towns memo (let me lift my jaw up off the floor..) appears to be the only ‘evidence’ that has explored vaccine safety and efficacy and the potential risk for children. It lacks any methodological rigour, and is it seems a lovely effort at cherry picking.
Therefore, we assume, only other ‘evidence’ was corporate data, supplied largely secretly to agencies.
Why am I a little concerned? Because this technology, a genetic therapy, was encapsulated in a carried the instructions for the body to produce, without controls, an antigenic and clot promoting spike protein. The novel biological therapy was fast tracked, and from what I could see, when Pharmac declined to approve it, the MAAC group eagerly stepped in and approved it in 3 working days.
Facts relating to its potential to prevent transmission of infection were suppressed – the government never drew attention to the uncertainties which would compromise injection uptake across the New Zealand community. It was not commonly known that it was never viewed as sterile (as in, it could not be assured that it wouldn’t prevent transmission of infection); it did wane, and that by February 2021, Pfizer probably understood that it caused harm to nearly every system in the body.
The vaccine was risky - and most of the population were not at risk. So ethically, why would Hipkins oversee the drafting of legislation which required nearly everyone to take an mRNA gene therapy.. if they personally didn’t need to take it?
From 2020, it was understood that only the elderly and very multimorbid, those with uncontrolled diabetes, those who were most poorest and most malnourished – were the at-risk groups. The generally healthy population were not at risk. Yet the generally healthy were compelled to take one for the team, or else face social or economic sanctions. From the start, cardiac events were elevated, and the risk benefit profile now indicates adverse events may outweigh benefits. We now know that all the young men that were injected, were at much, much more risk from vaccine-related harm than they were from COVID-19 and that many never recover. The moral and ethical failure here is beyond belief.
At the same time, the risk that waning would happen more quickly with elderly, multmorbid, immunosuppressed groups, that symptom presentation was personal and highly complex was obfuscated. The fact that complex symptoms could be prevented in the first place with early treatment - was also obfuscated. The implications for public trust remain up in the air.
WHAT CAN YOU DO?
We often look for ways to reclaim democracy, and prevent further erosion. Perhaps a simple act is to draw attention to this loophole - which enables slippery Ministers to evade democratic accountability.
If you have experienced the same issue with your OIA request being deflected by an unaccountable Minister, and you feel like highlighting this problem, especially if you have a response from the Ombudsman citing the Brick Wall excuse, please consider writing to the chair of the Governance and Administration select committee to highlight the issue.
Please draw attention to the good work of NZCCL (Twitter @CivilLibertyNZ) and support their work by sharing their information, and asking them how you can help them draw attention to the need for an Open Government Commission - (not performance wordsmithing by the government that ends up with miniscule tweaks) and the simple fact that any meaningful change is realistically, off the agenda - if it’s left to the government.