OIA compliance and practice at Waka Kotahi 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.

Read the 'Ready or not?' report

Read the 'Not a game of hide and seek' report

From the executive summary

This summary draws together the key findings and suggested actions from my investigation.     

Leadership and Culture

Leadership is key to developing and maintaining a strong culture of openness and transparency within an agency. The Chief Executive has an open leadership style and values transparency. While there was little evidence of internal communications to staff from the Chief Executive about the OIA and transparency, the staff survey results indicate Waka Kotahi’s leadership is becoming more open. I encourage Waka Kotahi’s leaders to provide regular and consistent positive messaging about the OIA and openness as this will lead to improved attitudes and actions from staff members.

Messaging from agencies to the public about the OIA and openness is also important. Waka Kotahi has improved its messaging to the public in a number of ways. For instance, it has updated its website; and commissioned a stakeholder survey that included questions about openness and transparency, which was made public. I am pleased that some key strategy documents include clear statements about Waka Kotahi’s commitment to transparent decision making processes.

The OIA webpage is clearly sign-posted and only one click from the homepage. The OIA webpage contains a lot of useful information to assist requesters to make an OIA request and provides guidance on the type of information it holds. Some additions would further enhance the OIA page, such as adding an overarching OIA ‘statement of principle’ and publishing OIA guidance material on the website. It would also benefit from including a link on the OIA webpage to the Ministry of Justice’s Directory of Official Information and signal on the webpage that supporting documentation can be requested in a variety of formats.

Waka Kotahi’s leadership in relation to OIA and openness during the COVID-19 pandemic was good. It had an up-to-date and well-practiced business continuity plan, which meant staff could seamlessly meet statutory deadlines on OIA requests whilst working from home.

Action points: Leadership and culture

1. Ensure ongoing messaging from senior leaders to staff about the importance of the OIA, and openness more generally
2. Include an overarching ‘statement of principle’ on the OIA webpage, outlining the importance of OIA and openness
3. Provide a link on the OIA webpage to the Directory of Official Information
4. Signal on the OIA webpage that supporting documentation can be requested in a variety of formats 
5. Publish relevant internal OIA decision making material on the OIA webpage

Organisation structure, staffing and capability

Waka Kotahi has moved from a partly centralised to fully centralised model for processing its OIA requests. Staffing numbers in the Ministerial Services team have increased with the additional work load. Staff report benefits to the model, which Waka Kotahi states will be reviewed on a six-monthly basis.

Training is conducted on the OIA to new staff at induction. However, there is no formal training programme to assist those managing OIA requests or advanced courses for OIA specialists, and regular refresher training is also not offered. I encourage Waka Kotahi’s senior leaders attend formalised OIA training on a regular basis.

Action points: Organisation structure, staffing and capability

6. Ensure those with official information responsibilities attend role specific, specialist OIA training courses and regular refreshers
7. Ensure all senior leaders are attending formalised OIA training on a regular basis

Internal policies, procedures and resources

Waka Kotahi has a number of OIA resources to assist staff to manage requests. These include an OIA guide, template letters, and an OIA memo. It also has a number of process maps and specific OIA-related policies on its internal intranet site. Overall, the OIA guide includes useful information and is a good summary of the OI and Privacy Acts. However, some issues were identified and improvements could be made to further lift the quality of the document. For example, the guidance could be improved by including further information on the differentiation between consultation and notification with Ministers’ offices; requests for internal decision making rules, requests for reasons, requests from corporate entities for personal information; considering urgent requests; and conducting the public interest test.

Waka Kotahi has recently implemented a policy on the proactive release of official information. It is positive the policy covers all types of proactive release, not just the release of OIA responses. Some improvements were identified which, if enacted, will enhance the policy further. For instance, Waka Kotahi should consider updating the proactive release policy to include information on the frequency and timing of release, as well as making information accessible. I also encourage Waka Kotahi to publish the proactive release policy on its website. Guidance which is used to make agencies open and accountable to the public should, in turn, be made available to the public.

A stand out area for Waka Kotahi was its technology capabilities during the lockdown. Having adequate resources to allow staff to work from home meant those responsible for OIA processing were able to continue to perform their roles and meet obligations under the OIA.

Action points: Internal policies, procedures and resources

8. Review and update OIA guidance material to include more information on:
   • consultations and notification to the Minister’s office
   • requests for internal decision making rules, requests for reasons, requests from corporate entities for personal information;
   • considering urgent requests; and
   • public interest considerations
9. Review and update the proactive release policy to include information on the frequency and timing of release, as well as making information accessible
10. Publish the proactive release policy on the Waka Kotahi website

Current practices

There have been significant improvements to Waka Kotahi’s reported OIA timeliness rate. This is despite the number of OIA requests more than doubling since the 2015/16 financial year. Meeting attendees said the improvement to timeliness is due to a number of factors; including new management, a focus on OIA processing, centralising request processing, increased staff numbers to deal with OIA requests, and an increase in the proactive release of OIA responses.

My investigators reviewed a random selection of OIA files and overall, processing was good. Record keeping was generally of a high standard and statutory timeframes were usually adhered to. However, there were some areas identified that require improvement. For instance, there were no records of consideration of public interest factors favouring disclosure, internal decision making deliberations, or the search for information.

Waka Kotahi received fewer OIA requests during lockdown, which allowed some staff in the Ministerial Services team to assist the internal COVID-19 response team. Waka Kotahi said there were no significant changes in OIA practices or their prioritisation during the lockdown. A positive outcome of remote working during lockdown was that the entire OIA process is now electronic, including the sign off process. However, there was a drop in the amount of information released proactively. I strongly encourage Waka Kotahi to consider ways to increase the numbers of OIA responses it publishes going forward.

Waka Kotahi provides approximately 20 percent of agency OIA requests to the Minister’s office for ‘noting’. The noting practice is concerning because Waka Kotahi requires an email from Minister’s office staff indicating they have ‘no comment’ before the request is sent to the requester. If the OIA request is provided to the Minister’s office simply as a courtesy ‘FYI’ to inform the Minister of a decision Waka Kotahi has reached, a response from the Minister’s office should not be a prerequisite for sending the response. If input is required, Waka Kotahi should consider consultation.

In addition, Waka Kotahi stated that it gives the Minister’s office up to five days to provide a response to OIA requests before sending them to the requester. However in one instance, Waka Kotahi did not send an OIA response to the requester until it had received a response from the Minister’s office that they had ‘no comment’ nine days after it was sent to them for FYI. Section 15 of the OIA states that decisions on requests be made ‘as soon as reasonably practicable, and in any case no later than 20 working days’.

I am pleased that as a result of this investigation, Waka Kotahi has drafted a protocol clearly distinguishing between the consultation and notification of OIA decisions to the Minister’s office. The protocol states that where notification is required, it will be conducted at the same time as the decision is communicated to the requester. I encourage Waka Kotahi to finalise the draft document and obtain written agreement with the Minister’s office. As a result, the practice of the Ministerial Services team requiring a response from the Minister’s office before sending it to the requester should no longer apply. The blanket application of a five working-day period for the Minister’s office to respond to Waka Kotahi’s decision should also be removed. 

Requests to the Media team for information held are subject to the OIA. Waka Kotahi does not have a separate guidance document for dealing with media information requests, but there is some information in the OIA guide on requests they may not log as OIA requests. Waka Kotahi states it has very experienced Media Managers who work closely with the Ministerial Services team so there is often discussion on the best way to manage these types of requests. However, there are some improvements that could be made to ensure the Act is being adhered to.

My investigators reviewed a sample number of media information requests. I am concerned that in one instance, part of a media information request was refused, and the requester was not advised that they can make a complaint to the Ombudsman and did not provide the reason for its refusal. In this case, I consider this practice to be contrary to section 19 of the OIA. However, I have not made a recommendation in this instance because Waka Kotahi has advised that the example reviewed was an anomaly to its normal practice and was contrary to its OIA guide. Waka Kotahi has stated that refresher OIA training will be provided to the Media team to ensure that where a media information request is not responded to in full, it is actioned in accordance with the OIA.

Although Waka Kotahi’s OIA guide outlines how information requests will be treated, it does not provide guidance on media information requests specifically. I urge Waka Kotahi to include details in its guide such as the circumstances in which a request from the Media team is passed onto the Ministerial Services team, and details on adhering to the OIA should a request be refused by the Media team. The guide should also include further details on a requester’s right to ask for a request to be treated with urgency. Once updated, I encourage Waka Kotahi to publish the guidance document. This would give requesters a better understanding of its processes when an OIA request is received and help manage journalist expectations about why the information they request cannot always be made available within a 24 hour news cycle deadline.

I note that there was no evidence of records of conversations between the Media team and journalists being kept. I suggest the Media team ensure it keep a record of all substantive communications with requesters, including telephone conversations and meetings. I urge senior leaders to reinforce the message that requests for official information that are dealt with by the Media team must adhere to the OIA.

The proactive release of information to the public promotes good government, transparency and fosters public trust. Waka Kotahi has improved its practice in this area in recent years. The public release of information promotes good transparent government, but also has administrative benefits. These potentially include reducing requests for information which are already publicly available, and allowing for greater ease of handling of the requests that are received.

Agencies should publish information in a format that accommodates the use of assistive technology, such as screen readers. For example, publishing or providing information in an ‘image only’ format could preclude the use of screen readers. It may also make the information less easy to use generally, by limiting the ability to search documents by keyword. Most of the OIA response documents published online by Waka Kotahi were searchable, but some were not. This indicates there may be some inconsistency of practice that could be mitigated by including details of accessibility and searchability in the Proactive Release of Official Information policy.

Action points: Current practices

11. Ensure OIA decision makers consider the public interest test where applicable
12. Record the reasoning behind OIA decisions, including consideration of public interest and results of consultations with third parties
13. Record administrative steps taken in respect to OIA responses where relevant, such as keeping a record of the search for information
14. Finalise the written protocol with the Minister’s office on handling agency OIA requests
15. When notifying the Minister of an OIA decision, cease the practice of requiring a response from the Minister’s office before sending it to the requester
16. When notifying the Minister of an OIA decision, cease the blanket application of a five working-day period for the Minister’s office to respond to Waka Kotahi’s decision
17. Update the OIA guide to include more detail on media information requests and consider publishing the guide
18. Keep a record of all substantive communications with requesters, including telephone conversations and meetings
19. Provide targeted OIA training to the Media team on a regular basis, to ensure they understand their obligations under the OIA
20. Ensure messaging from senior leaders reinforces that requests for information handled by the Media team must adhere to the OIA
21. Ensure all documents released in response to an OIA request or proactively released are searchable and not ‘image only’, and all visual elements are tagged with alternative text

Performance monitoring and learning

Waka Kotahi collects and reports on a variety of OIA data from requests and responses stored in its information management system, ‘Infohub’. Waka Kotahi monitors this data through its Workflow tool and reports regularly to senior leadership. Reporting includes requests received and completed within the maximum legislative timeframe, and the subject matter of any requests deemed notable.

Performance monitoring could be improved by expanding the range of data collected and reported to senior leadership to include qualitative data that would help measure and improve process efficiencies and the quality of responses to OIA requests. Waka Kotahi can obtain a more comprehensive picture of its OIA performance by expanding data collection to include OIA requests handled by the agency’s Media team.

Waka Kotahi occasionally updates its internal resources in line with guidance my Office publishes. I encourage Waka Kotahi to formalise this process through written guidance. While I commend Waka Kotahi on its robust peer review process, I similarly encourage the agency to develop a formalised quality assurance process for completed requests.

Action points: Performance monitoring and learning

22. Formalise the process for learning from Ombudsman investigations and guidance, and reflect this in OIA policy and procedures
23. Collect further qualitative data on the handling of OIA requests
24. Improve details in regular reporting of statistics to senior leadership
25. Include information requests handled by the Media team in OIA statistical reporting
26. Develop a quality assurance process for completed OIA requests