In the middle of the pandemic when the government is implementing such sweeping powers, transparency is severely lacking, writes Investigations Reporter Michael Morrah.
The Health Ministry's top lawyer has apologised for "unreasonable" delays and refusals to release information relating to supplies of personal protective equipment (PPE).
Newshub made a request for information under the Official Information Act (OIA) in May 2020. More than 17 months later, after an investigation by the Ombudsman, the Ministry has finally been forced to release the information and say sorry.
"The Ministry would also like to apologise for the delay in providing you this information," the Ministry's chief legal adviser Phil Knipe said.
The 17-month delay in providing the information is another worrying example of how the Official Information Act is being circumvented. This information should have been released as per the law – within 20 working days.
The final determination of the Chief Ombudsman, Peter Boshier, who investigated Newshub's complaint, also appears to point to manipulation of the process.
When the Ministry initially said it needed to extend the timeframe to respond, Boshier found the Ministry had already drafted its response.
"There was not a substantial amount of information to be searched through or collated. Further, the only 'consultations' that have been identified to me are internal ones," he said.
Boshier found workload pressures at the Ministry were "not a reason" to drag out the OIA process which was determined to be "unreasonable".
This is fundamentally part of the problem. Journalists and the public for that matter have no way of knowing whether notifications of extensions or refusals are legitimate, unless of course the Ombudsman gets involved.
The OIA is a critically important part of a democratic society and it ensures those in power can be held accountable. But in the middle of the pandemic when the government is implementing such sweeping powers, transparency is severely lacking.
The Ministry also made a blanket refusal for the release of information about the supply of PPE between the Ministry and Whanganui mask manufacturer, QSI.
Again, in respect of the refusal, the Ombudsman found the Ministry's handling of the request was flawed.
Boshier found the only information that should have been refused related to pricing data between QSI and the Ministry, but all other information about procurement and distribution of PPE should have been released when Newshub asked for it.
At the time of making this request, in early 2020, PPE was a hot topic. Doctors and nurses were saying they couldn't get it while the Director-General of Health, Dr Ashley Bloomfield, brushed off concerns saying there was "plenty" in the country.
The information released verifies what's already publicly known, what the Auditor General established, and what's already been reported on extensively.
Hospitals were worried about running out of PPE early in the pandemic
DHBs had no way to forecast PPE demand
MOH had 18 million masks in reserve, but there was "significant uncertainty" about ongoing supply.
In March, it was estimated that "supply of masks would be exhausted" within two to three months of community spread and mass hospitalisations if masks were provided just to DHBs.
There was confusion and delays around the way PPE was distributed by the Ministry and its partners, NZ Health Partnerships and mask manufacturer QSI.
'Some agencies have yet to conscientiously comply with the law'
It is clear the Chief Ombudsman still has serious concerns about the application of the law when it comes to the Official Information Act.
Speaking in general terms, Boshier said the Act remains a "good law" if complied with properly. He noted that in the current climate it's more vital than ever.
"Accountability is critical at a time when the Government needs to exert extraordinary executive power," he said.
Boshier said government agencies must contribute to the efficient flow of information, but this was not always happening.
"Some agencies have yet to conscientiously comply with the law," he told Newshub. Problems with government agencies complying with the law when it comes to the OIA are not new.
In 2015, his predecessor, Dame Beverly Wakem, interviewed 300 officials and requesters about the OIA in a report titled "Not A Game of Hide & Seek".
Wakem found that "most of the time" government agencies were compliant with the OIA and that the legislation has achieved "great gains in openness and transparency."
But she also found evidence some public agency bosses didn't understand their legal obligations and a small number of ministerial staff members attempted to limit the scope of requests for unwarranted reasons.
As a journalist, you often wonder whether Government agencies delay or refuse information requested under the OIA because staff know if the information came out immediately it would be politically inconvenient and damaging.
Boshier told Newshub he's keeping an eye out for this type of behaviour.
"It is an issue that I am always alert to and checks for this type of activity are made when I investigate Official Information complaints," he said.
Boshier said he is continuing to investigate whether weaknesses identified by his predecessor in 2015 have been addressed.
'We've seen steadfast refusals'
Former Ombudsman investigator and the Deputy Chair of the NZ Council for Civil Liberties, Andrew Ecclestone, spoke of his longstanding concerns about the OIA.
He worked on the 2015 "Not a Game of Hide and Seek" report and says it is not an excuse for government agencies like the Health Ministry to claim they're overwhelmed with OIA requests during the pandemic.
The Wakem report said agencies should plan and be resourced to comply with the law.
"It is not acceptable for a government agency to say we're really busy and to have not ensured it is properly resourced to deal with a surge in OIAs," Ecclestone said. He pointed to recommendation 9 of the 2015 report, which says 'Agencies should ensure there is sufficient resilience in their structure to respond to contingencies such as staff absences, departures, and sudden surges in the number of OIA requests.'
He added that MPs should be asking questions about how much the Ministry of Health has increased the number of staff working on OIA responses, and if this is in line with its claim of a 50 percent increase in the number of requests.
Ecclestone says the OIA is there for two reasons – to help people contribute and shape government policy and to improve accountability.
"Information must be released in a timely fashion for this to occur."
He believes the Health Ministry is one agency that's failed in this regard.
"We have seen steadfast refusals for information, which means people can't contribute in a meaningful way. The Health Ministry has not shown a positive attitude to releasing information people have asked for."
He points to early OIA requests on the vaccine certificates which were refused, and an increasing tendency for requests to be transferred to other agencies close to the 10-day deadline "which restarts the clock."
Earlier in the pandemic response, information was regularly being released as part of what the government calls "proactive releases".
In essence, what this translated into was a huge dump of documents normally late on a Friday afternoon.
A good example of this was the COVID Response Minister Chris Hipkins long-awaited release of the testing and contact tracing review by Sir Brian Roche last year, which came out a week before Christmas.
Ecclestone notes there's been nothing proactively released about the government's changes to its pandemic response strategy since July and suspected there would be the "dump of all Friday dumps" just before the holiday period this year.
