Chris Eichbaum: Free and frank advice fast disappearing

Almost all OIAs in full (that is every single document to be released) now goes to the minister's office – these are ...
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Almost all OIAs in full (that is every single document to be released) now goes to the minister's office – these are departmental, not ministerial OIAs.

OPINION: In a recent speech to Transparency International New Zealand, former prime minister Sir Geoffrey Palmer QC observed that: "There has been an absence of free and frank advice offered to ministers in recent years.

"If ministers do not receive free and frank advice there is a real risk that this will promote a tendency to politicise the public service and endanger its independence, thereby adversely affecting the quality of advice given and decisions taken."

What do others think? My colleague Professor Richard Shaw of Massey University and I are in the early stages of analysing data from a questionnaire distributed through the New Zealand Institute of Public Administration. We received 640 responses and more than 80 per cent of these came from individuals employed within the state sector.

One question invited responses to the statement, "Public servants in 2017 are less likely to provide a minister with comprehensive and free and frank advice". More than half of respondents (53 per cent) indicated some measure of agreement with the statement. Slightly less than a quarter indicated any measure of disagreement.

Our respondents were invited to expand through written comments. We received many but here are two reflecting the view that all is not well:

* Free and frank advice is almost a standing joke in the public sector. Much of this is because of the  a) lack of intellectual capability of the minister to intelligently receive and deal with information b) protection of the minister by senior officials – not many experts get in front of the minister these days, everything is relayed second or third hand c) over-zealous anticipation of the minister's wants (not needs) meaning short-term satisficing (this isn't a typo) rather than senior officials having a strategic view and d) the short term political view, meaning that anything that takes longer than three months isn't considered worth investing in.

* In my experience there is a degree of "finessing" of information that is going to the minister and/or that may be discoverable, and there seems to be a concern about how the department's performance will be judged based on the information that goes to the minister. Things seem to be reported to the minister in a way that might not be completely free and frank, but rather, makes us "look good". Efforts are made to include information that puts us in a positive light, and to put some spin on things that may give a negative impression – so I find it hard to see it as "free and frank".

The first of these responses is about the demand side – and reflects on the quality of ministers. The second reflects on the quality of supply and issues of self-censorship and the perils of the institutional and personal "brand".

It is also clear from our initial analysis that the Official Information Act is influencing behaviour in some departments or agencies and in some Beehive offices.

I have seen a huge increase in the number of departmental OIAs going to ministers' offices over the last 10 years, with very negative effect.

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It used to be that departmental OIAs were dealt with by the department, and the minister's office was briefed, in accordance with the no surprises policy, but all decisions on the OIA were made by the department, and the minister's office never saw the documents in question at all …

Now almost all OIAs in full (that is every single document to be released) goes to the minister's office – these are departmental, not ministerial OIAs. The minister's political adviser then goes through them and puts pressure on to redact or withdraw items, saying they are out of scope … or pressuring for another ground to be used.

These research results support the assumptions (and no doubt confirm the personal insights) that inform Palmer's analysis and prescription.

So what is to be done? The constitutional project advanced by Palmer is to be supported. But it will not produce results in the short term.

To the extent that some actions by "political advisers" are part of the problem, action could be taken to rein in those of a cavalier disposition and ensure those who occupy these privileged positions are aware of their responsibilities, which include not compromising the capacity of others to discharge theirs.

There is an issue here. The briefing papers to incoming ministers should make for interesting reading.

Dr Chris Eichbaum is a Reader in Government at Victoria University of Wellington.

 - The Dominion Post

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