Editorial: Chief Ombudsman shows how not to be an information watchdog

Retiring Chief Ombudsman Dame Beverley Wakem.

Retiring Chief Ombudsman Dame Beverley Wakem.

EDITORIAL: The Ombudsman is the guardian of the citizen's right to know. Politicians and bureaucrats by their nature don't want to share information, because information is power. The Official Information Act forces them to share and makes the Ombudsman a kind of tribune of the people. 

What a shame, then, that retiring Chief Ombudsman Beverley Wakem is leaving office amid a cloud of justified controversy. Her recent remarks make her look less like a champion of freedom than a friend of the powerful.

It is truly extraordinary to hear her scolding journalists as "rottweilers on heat" and warning them not to annoy "innately conservative" officials who might then become "gun-shy". These statements are what you would expect from a bad-tempered bureaucrat, not an ombudsman. 

It is not for the Chief Obudsman to tell anyone to be polite and humble when asking for information. It is most certainly not for her to suggest that officials can obstruct information – because that is all that being "gun-shy" can mean here – when they are irritated.

The Official Information Act requires the government to provide information unless there is good reason not to. The reasons for refusal are laid out in statute. The law must determine when the gate is open and when it is shut, not the manners of the applicant or the mood of the gatekeeper.

If Wakem had made these statements when first appointed, they would be good grounds for seeking her resignation. They show a fundamental misunderstanding of her role and an establishment mentality.

Unfortunately, other evidence suggests a similar misunderstanding.  Justice David Collins suggested as much in his recent verdict on Professor Jane Kelsey's OIA case about the Trans-Pacific Partnership trade pact. Wakem had said that where an Ombudsman is in two minds about allowing the disclosure, "then the information should be withheld."

The judge said politely that this is not what the law says. In fact, it says the opposite. If the gatekeeper is in two minds, the information should be released "unless there is good reason for withholding it."

The Chief Ombudsman, as law professor Andrew Geddis notes in a recent column, "does not come out of [Collins'] judgement all that well." Not only did she misunderstand the law. She also waved through Minister Tim Groser's amazingly high-handed decision not to release any information at all about the trade negotiations. 

Wakem is retiring and this week she will release her review of OIA practices in the public sector. Her retirement is welcome.  We don't expect much from her review.

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But some lessons should be drawn from her unfortunate experience. Wakem was chief executive of Radio New Zealand. She seems to empathise more with senior officials than with those asking pesky questions. 

It might be better in future to avoid picking top bureaucrats as Ombudsmen. Their hearts and minds may be in the wrong place

 - Stuff


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