OIA compliance and practice in Ministry of Social Development 2022
This report was released as part of ‘Ready or not?’, an investigation into OIA practices at 12 core agencies.
'Ready or not?' is a follow-up to 'Not a game of hide and seek', an investigation published by former Chief Ombudsman Beverley Wakem in 2015.
From the executive summary
This summary draws together the key findings and suggested actions from my investigation
Leadership and Culture
The Ministry’s leaders value transparency and are driving a more open culture. This is reflected in the Ministry’s external messaging to the public, which includes overarching statements on its commitment to openness and transparency. The Ministry also provided examples of internal messaging to staff that foster the spirit of the OIA through the promotion of its purposes and principle, in conjunction with these topics.
In relation to being strongly or moderately pro-disclosure about the OIA, staff survey respondents rated the signals sent by their immediate manager higher than they rated the signals sent by the Chief Executive and Deputy Secretaries.
Therefore, I encourage the Chief Executive and senior leaders to ensure ongoing internal messaging is provided to staff about the importance of the OIA and openness more generally. This will ensure the legislation stays front of mind for staff, and that the percentage of staff who view their senior leaders as strongly or moderately pro-disclosure will continue to grow.
The Ministry has an excellent OIA webpage. Not only is it easy to access and use, but it includes helpful information for requesters. I am pleased that through the course of this investigation, the Ministry’s OIA webpage has continued to improve.
However, there is still an opportunity for the Ministry to add an overarching ‘statement of principle’ outlining the importance of the OIA and openness, and that OIA responses can be provided in alternate formats. The Ministry could also expand on the description of information held (in the Directory of Official Information and on the OIA webpage) and publish details of its approach to internal decision making on OIA requests.
Action points: Leadership and culture
- Ensure ongoing messaging from senior leaders to staff about the importance of the OIA, and openness more generally
- Include additional information on the OIA webpage, such as an overarching ‘statement of principle’ outlining the importance of the OIA and openness, and that OIA responses can be provided in alternate formats
- Expand on the description of information held by the Ministry in the Directory of Official Information and on the OIA webpage
- Publish details on the OIA webpage of the Ministry’s approach to internal decision making on OIA requests
Organisation structure, staffing and capability
The Ministry uses a fully centralised OIA model, and OIA requests are handled by the Official and Parliamentary Information (OPI) team. An OIA workflow tool is integrated with the Ministry’s information management system. Overall, the Ministry appears to have the staffing capacity and organisational capability to ensure it generally meets its OIA obligations in a timely manner.
It is commendable that during the course of this investigation the Ministry started providing OIA training to all staff at induction. The OIA online training module used at induction was also provided to all current staff to complete, and staff will be required to repeat the module every two years as part of their OIA refresher training. Further specialised training on the OIA, provided by the OPI team, is available to the rest of the Ministry. There did not appear to be any recent, OIA-specific training on decision making for senior leaders. I encourage the Ministry to provide OIA decision making training regularly as it will assist in the consistent application of OIA provisions across the organisation.
It is also commendable that information management and record keeping training is provided to all staff at induction, and refresher sessions are offered on a regular basis.
Action point: Organisation structure, staffing and capability
- Ensure the leadership team and staff who have the authority to make decisions on OIA requests are attending formalised, specialist OIA training on a regular basis
Internal policies, procedures and resources
During the course of my investigation, the Ministry asked my staff to review its OIA guidance materials. I have provided my full feedback on these materials to the Ministry separately. Overall, the Ministry’s OIA guidance is largely accurate and comprehensive, while also being clearly written and readily accessible to staff.
Although the Ministry has developed guidance for the proactive release of Cabinet papers, it has not yet developed a proactive release policy to cover other types of information that could be released (such as OIA responses). Despite the lack of policy, I am pleased select OIA responses are published on the Ministry’s website. I encourage the Ministry to develop a proactive release policy and procedures for OIA responses and other types of information. Once developed, the proactive release policy should be published on the Ministry’s website.
Information management and record keeping resources are robust, but should be kept up-to-date through regular reviews. The Ministry informed me that a project for this was delayed due to COVID-19, but is starting to be implemented.
Action points: Internal policies, procedures and resources
- Develop and publish a comprehensive proactive release policy
- Ensure information management and record keeping resources are regularly reviewed and up-to-date
The Ministry reported 96.8 percent of OIA requests were processed within the 20 working day maximum statutory timeframe for the period of 1 July 2019 to 30 June 2020. During the 2020 lockdown, overall OIA practices were maintained, including proactively releasing select OIA responses, which is laudable. Most proactively released OIA responses on the Ministry’s website are PDF documents, but only the most recently released ones are searchable. In order to support accessibility, the Ministry should ensure the text of all proactively released OIA responses are searchable and not ‘image only’, and all visual elements are tagged with alternative text.
The Ministry has a number of good practices that it utilises when responding to OIA requests, and generally exhibits a high level of overall compliance with the requirements of the OIA. There are a few areas which could be improved, such as ensuring there is consistent record keeping of OIA decision making, and championing the use of the Ministry’s templates to achieve this. Also in relation to OIA templates, I suggest the Ministry consider updating its OIA request acknowledgement to include the information requested, and an explanation that an extension will be notified if a decision cannot be made and communicated within the 20 working day statutory timeframe. Further, I suggest the Ministry consider updating the OIA response template to include the full wording of OIA subsections when information is withheld or refused, and the steps taken when searching for information to determine it does not exist or cannot be found. Finally, every OIA request should be acknowledged.
I am pleased the Ministry and Ministers’ offices understand the final decision maker on departmental OIA requests is the Ministry. However, the Ministry should review its practice of providing departmental OIA responses to Ministers’ offices for notification under the ‘no surprises’ principle, in order to identify opportunities where this may be fulfilled by providing the departmental OIA response to Ministers’ offices at the same time, or shortly before, it is sent to the requester; and providing Ministers’ offices with only the topic of the departmental OIA request, or a summary of the departmental OIA response, rather than the full departmental OIA response. In conjunction, the Ministry should update the MaES Process Manual to encompass changes in practice as a result of the review into the Ministry’s application of the ‘no surprises’ principle.
During the course of my investigation, the Ministry developed a guide with its Ministers (OIA requests involving Ministers) to clarify when, and in what circumstances, decision makers will consult with Ministers’ offices on departmental OIA requests or notify Ministers’ offices of departmental OIA responses. I have identified some aspects of this guide which could be improved. Once updated, the OIA requests involving Ministers document published on the OIA webpage should be replaced with the revised version. The Ministry should also ensure the OIA requests involving Ministers and MaES Process Manual documents are consistent with each other, and that the Ministry’s practices align with the guidance.
Requests to the Media team for information which is held by the Ministry are subject to the OIA. The Ministry must ensure that all requests for information are handled in accordance with the OIA. During the course of my investigation, the Ministry developed a new OIA guideline for the Media team (Media responses and the Official Information Act [OIA]) to assist in handling requests for official information from journalists. I identified some aspects of this guideline which could be improved, and the Ministry promptly made my suggested changes. The Ministry should also ensure the Media team’s practices comply with the Media responses and the OIA guideline.
On the occasions the Media team refused requests for information, I was concerned that requesters were not provided with a reason for refusal under the OIA, and informed about their right to complain to the Ombudsman. It is my opinion that these practices appear to have been contrary to section 19(a) and (b) of the OIA. However, I have not made a formal recommendation in this instance because the Ministry has now advised that it has reviewed and updated its guidance and practice to ensure a reason for refusal under the OIA is referenced in all responses when a media information request is fully or partially refused (as required by section 19(a) of the OIA). I have included an action point to reflect this.
The Ministry also advised that if the Media team fully or partially refuses a media information request under the OIA, standard text will be added to the media information response advising that the requester can make a complaint to the Ombudsman (as required by section 19(b) of the OIA). I am pleased this action has already been implemented, and that the standard text is included in the Media responses and the OIA guideline.
Some of the Media team’s records I reviewed also appeared to be incomplete. In my opinion, I consider this practice appears to have been contrary to section 17(1) of the Public Records Act 2005. However, I do not consider it necessary to make a formal recommendation in this instance because:
- the Ministry has assured me it is aware of its record keeping obligations, and has taken steps to address my concerns;
- the Media team will provide my Office with ‘a quarterly assurance check of a sample of its records to ensure they are full and accurate, in accordance with normal prudent business practice.’; and
- a section has been added to the Media responses and the Official Information Act guideline on ‘Obligations under the Public Records Act 2005’.
These actions will ensure there is a record of decision making for media information requests handled by the Media team. I have included an action point to reflect this.
Providing targeted OIA training to the Media team to ensure they understand their obligations under the OIA, and how to quickly and easily meet them, would raise compliance. This should be supported by messaging from senior leaders reinforcing that requests for information handled by the Media team must adhere to the OIA.
Action points: Current practices
- Ensure consistent record keeping in relation to OIA decision making and champion the use of the Ministry’s templates to achieve this
- Ensure every OIA request is acknowledged, and consider updating the acknowledgement to include the information requested and an explanation that an extension may be notified if a decision cannot be made and communicated within the maximum 20 working day statutory timeframe
- Consider updating the OIA response template to incorporate my suggestions
- Review the practice of providing departmental OIA responses to Ministers’ offices for notification under the ‘no surprises’ principle in line with my suggestions
- Update the MaES Process Manual to incorporate changes in practice as a result of the review into the Ministry’s application of the ‘no surprises’ principle
- Review and update the OIA requests involving Ministers incorporating my suggestions
- Once updated, replace the OIA requests involving Ministers on the OIA webpage with the revised version
- Ensure the OIA requests involving Ministers and MaES Process Manual documents about interacting with Ministers’ offices on OIA requests are consistent with each other, and the Ministry’s practices align with that guidance
- Ensure the OIA requests involving Ministers and MaES Process Manual documents clearly distinguish between notification of, and consultation with, Ministers’ offices on departmental OIA requests
- Provide targeted OIA training to the Media team to ensure they understand their obligations under the OIA and are following best practice as provided in the Media responses and the Official Information Act guideline
- Amend the Media team’s practices to ensure a reason for refusal under the OIA is referenced in all responses when a media information request is fully or partially refused
- Amend the Media team’s record keeping practices to ensure full and accurate records of substantive correspondence (including telephone conversations, meetings and verbal discussions) with requesters, and any material internal discussions, are created and maintained to ensure there is a record of information scoping, administrative steps, and decision making for media information requests handled by the Media team
- Ensure messaging from senior leaders reinforces that requests for information handled by the Media team must adhere to the OIA
- Ensure the text of all PDF documents released are searchable and not ‘image only’, and all visual elements are tagged with alternative text
Performance monitoring and learning
The Ministry collects and reports on an extensive amount of OIA request data, and I applaud the Ministry for continuing to expand on the data collected during the course of this investigation. From this data, monthly and quarterly reports are provided to senior leaders. A weekly report also goes to senior leaders, key Ministry staff and Ministers’ offices. Reports include the monitoring of OIA performance in terms of quantity and quality.
The Ministry does not collect data on the type of request (Part 2, 3 or 4 of the OIA) because there is no field in the information management system in which to capture it. I suggest the Ministry consider whether there is a way it can collect this data. Also, the Ministry’s Key Performance Indicator for departmental OIA responses is 95 percent timeliness. This should be amended to 100 percent to ensure compliance with the 20 working day maximum statutory timeframe (unless extended), as it is a legal requirement in the OIA.
The Ministry counts media requests in its OIA statistical reporting. However, media requests are not currently recorded in a way that differentiates between media requests for information held (media information requests and so subject to the OIA), versus which are media requests for comment or an interview. In order to accurately report the correct statistics, both internally and to Te Kawa Mataaho, the Ministry must ensure it only includes media information requests in the count, and not media requests for comment or an interview.
Staff involved in the OIA process receive the outcome of Ombudsman investigations, and Ombudsman guidance is used when training new OPI team members. However, I strongly encourage the Ministry to formalise the process of circulating and learning from Ombudsman opinions and publications through written guidance. Finally, the Ministry could lift its OIA performance by developing a quality assurance process to be used after OIA responses have been finalised.
Action points: Performance monitoring and learning
- Ensure only media information requests are included in OIA statistical reporting and not media requests for comment or an interview
- Consider collecting data on the type of request (Part 2, 3 or 4 of the OIA)
- Amend the Key Performance Indicator for departmental OIA requests to 100% timeliness to ensure compliance with the legal requirement in the OIA
- Formalise the process for learning from Ombudsman investigations and guidance, and reflect this in OIA policy and procedures
- Develop a quality assurance process after finalisation of OIA requests