OIA compliance and practice in New Zealand Defence Force 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

NZDF’s senior leaders’ messaging to staff on the OIA and openness in general appears to be an area of vulnerability. The agency’s response to my questionnaire, while outlining some positive OIA practices, did not provide examples of proactive regular messaging from senior leaders. The results of my initial and post-lockdown surveys also show that a significant proportion of respondents did not know how to rate the signals sent by NZDF’s senior leaders on openness and the OIA or thought the leaders were silent on these issues.

While some of NZDF’s recent measures may go some way towards effecting the necessary change in the agency’s OIA culture, in my view, the NZDF leadership should send more regular communications to staff (via emails, memos, the intranet, meetings, blogging and newsletters) reinforcing the importance the NZDF attaches to openness and complying with the principle and purposes of the OIA. Senior staff should actively role-model openness, transparency and good OIA practices (including sound information management and record keeping), for example, by setting a clear expectation that staff are trained to the appropriate level for their role and making this expectation visible by attending training themselves.

NZDF’s corporate and strategic documents include many positive statements signalling the agency’s commitments to being an accountable government agency that aims to maintain public trust and confidence. However, I note that the documents contain only a few references to openness and transparency and do not mention the OIA at all.

As with internal messaging on openness and the OIA, review of the NZDF’s signalling to its external stakeholders reveals many opportunities for the agency to improve its messaging. The NZDF’s response to my initial questionnaire did not contain any examples of proactive and regular signalling by the agency’s leaders of its commitment to openness and compliance with the OIA. The NZDF’s website and strategic and corporate documents also appear to be in need of increased messaging. I encourage the NZDF to consider the impact of promoting good OIA compliance and practice (including proactive release) on public trust and perceptions of transparency and openness by weaving OIA compliance into the agency’s corporate and strategic documents.

Finally, the NZDF has been experiencing technical issues with its website since late July 2020 when a hardware failure at one of the agency’s data centres caused the website to go offline. I was advised by the NZDF that, although the new website went live on 18 October 2021, it ‘remains a work in progress’ with further changes expected with respect to content. When planning the content of the website, I encourage the NZDF to ensure that the new website is consistent with guidance published by the Public Service Commission, and includes an overarching statement of the NZDF’s commitment to the purposes, principle of availability and requirements of the OIA, and information for OIA requesters such as links to proactively released information.

Action points

1. Senior leaders should make clear, visible and regular statements to all staff about the OIA and its role in enabling more effective participation in government and promoting accountability through openness and transparency
2. Senior leaders to set clear expectations that staff receive appropriate training on the OIA and make these expectations visible by attending training themselves
3. Senior leaders should make clear, visible and regular statements to the public about the OIA and its role in enabling more effective participation in government and promoting accountability through openness and transparency
4. NZDF should incorporate in its corporate documents a strategic framework describing how the agency intends to achieve:
   • Compliance with the OIA;
   • Good practice;
   • A culture of openness and continuous improvement; and
   • Participation and access to information by the public and stakeholder groups.
5. Review and update the website incorporating my suggestions 

Organisation structure, staffing and capability

The NZDF operates a partly centralised model of processing OIA requests which helps ensure that the agency generally meets its reported OIA timeliness obligations.

I was advised by the NZDF that the agency’s Chief of Staff signs upwards of 1000 responses per year. Given the sheer volume of requests it seems unlikely that the Chief of Staff would have capacity to decide on each of these requests in a detailed manner. I suggest, therefore, that the NZDF review its delegations and sign-out procedures for responses to OIA requests to ensure that decisions on OIA responses are able to be made by a wider range of relevant and sufficiently senior staff members who are authorised and have capacity to make decisions.

The results of my initial staff survey highlight a lack of OIA training as a significant area of vulnerability for the NZDF, which I suggest the agency address in order to enhance its OIA culture and practices. While I acknowledge the NZDF’s recent measures to improve its OIA training, I suggest that the NZDF continue to build on the work it has already done towards establishing an effective OIA training system. In addition, NZDF’s senior leaders should model an internal culture whereby all staff are trained to the appropriate level for their job on official information policies and procedures and understand the legal requirements.

Training on information management and record keeping appeared to present another opportunity for improvement for the NZDF. For example, a reasonable proportion of respondents in my initial staff survey indicated that, since starting work at the NZDF, they had never received training on information management and record keeping. In addition, a large number of respondents in the survey were not clear on how to use NZDF’s information management systems and many reported that it was difficult to use the systems for storage, retrieval and collation of information.

In my view, the NZDF should ensure that adequate training in information management and record keeping is provided to all staff. Such training should include both induction and refresher training provided at appropriate intervals. In order to identify areas where staff require additional support, I suggest that the NZDF also consider conducting a survey of training needs, and of compliance with information management and record keeping policies. These measures should be bolstered by increased messaging from senior leaders to signal NZDF’s commitment to maintaining sound information management and record keeping practices.

Action points

6. Consider whether to authorise a wider range of senior staff members to make decisions on OIA requests, and ensure that the NZDF’s responses to OIA requests are signed by the authorised decision maker
7. Ensure the OIA training programme includes the following components:
   • induction training for all staff;
   • advanced training for OIA specialists including private secretaries seconded to the Minister’s office, as well as the Media team and any other front-line staff tasked with processing or responding to OIA requests;
   • targeted training for decision makers; and
   • regular refresher training for all staff
8. Ensure all staff receive training at induction on record keeping and the use of information management systems relevant to their role; regular refresher training should also be available
9. Consider conducting a needs analysis in order to identify areas where staff require additional training support and/or guidance on the use of the information management systems and good record keeping

Internal policies, procedures and resources

The NZDF’s OIA guidance for its staff is comprehensive and addresses, in addition to OIA requests, NZDF’s proactive release and dealing with personal information under the Privacy Act 2020, as well as staff’s obligations under the Public Records Act 2005. The guidance could be further improved by including tools to help enable easy processing of OIA requests, such as checklists, process maps, links to template letters, and a record of the NZDF’s decision-making process on OIA requests set out in one discrete document. I also suggest expanding the range of substantive OIA issues covered by the guidance to include such aspects as the application of the public interest test and engagement with requesters.

At the time of writing this report, the NZDF has been unable to fully implement its proactive release programme due to technical issues with its website. The agency’s OIA guidance outlines the proactive release policy in some detail and covers much of what I would expect to see in a proactive release policy. I make one suggestion, and that is to include a provision on the frequency and timing of publication of official information.

The NZDF currently operates an information management platform called Defence Documentation Management System (DDMS), which, at the time of writing this report, has not yet been implemented in all business areas within the organisation. I note that the results of my initial staff survey reveal some challenges in the staff’s use of NZDF’s information management systems. For example, only 11 percent of respondents in the survey stated that there was one, centralised system for records storage, and many (28 percent) indicated that it was not clear how and for what type of information each of the NZDF’s records storage systems should be used.

In my view, the NZDF should ensure that the DDMS is implemented in a way that improves the efficiency of capturing, storing, searching and retrieval of information to support its overall capabilities and performance. In addition, until the DDMS is fully established, the NZDF must remain aware of the limitations of its current systems, and ensure it has policies and processes in place that will mitigate any risk of information being overlooked when it is searched for in the context of an OIA request. Senior leaders should bolster these measures by signalling NZDF’s commitment to maintaining sound information management and record keeping practices.

The NZDF has a comprehensive suite of guidance to regulate its information management and record keeping practices. This includes ‘Information strategy 2020’, ‘Defence Force Order 60’, and guidance produced by the NZDF’s Knowledge and Information Management Directorate on an ‘as required’ basis. As the NZDF advised that it will review and update its information management and record keeping policies, I encourage the agency to ensure that the guidance covers such matters as creating and managing records, as well as determining which records systems exist and what information each holds.

I note that an issue may exist around the OIA team’s limited access to protected systems and documents. While I understand that the NZDF is aware of this and is considering taking steps to mitigate the issue, I suggest that staff are advised of the limitations in their access and which business units can assist in searching for information when processing OIA requests.

Action points

10. Review and update OIA guidance material incorporating my suggestions
11. Develop user-friendly tools to support the NZDF’s OIA process, such as checklists, process maps, links to template letters, along with a template for recording the NZDF’s decision making process on OIA requests to include considerations as outlined in my report
12. Include information on frequency and timing of publication of official information in the proactive release policy
13. Ensure that the introduction of the NZDF’s new information management system, DDMS, is:
    • accompanied by appropriate interim measures (such as additional training and/or guidance) to address staff’s difficulties with the use of the current information management systems to mitigate the risk of information being overlooked when it is searched for in the context of an OIA request; and
    • supported by clear and regular messaging from senior leaders on the importance of sound information management and record keeping practices.
14. Ensure that information management and record keeping guidance covers the matters outlined in my report
15. Review the OIA team’s access to protected systems and documents 

Current practices

The NZDF’s reported timeliness compliance has been increasing since 2015/16 and remained high – 97.5 percent – in the reporting period from January to June 2020, which includes the 2020 lockdown. The agency appeared to respond well to the challenges of the 2020 lockdown with many respondents in my post-lockdown survey for staff reporting that operations and processes continued as normal during the lockdown.

Review of the NZDF’s sample OIA files conducted by my investigators revealed some inconsistencies with best OIA practice. For example, the reviewed files did not appear to contain letters acknowledging receipt of OIA requests. While the files contained records of most information I would expect, they did not include documents outlining NZDF’s decision making process on OIA requests and articulating the rationale behind the NZDF’s decision. I suggest the NZDF remedy the above inconsistencies by amending its OIA templates consistent with my suggestions.

The NZDF’s interactions with the Minister’s office around OIA requests are guided by the recently developed OIA policy and procedure, Defence Force Instructions 0.70 (DFI 0.70), which contains a dedicated section outlining the agency’s policies and processes in some detail. Notifications and consultations are clearly distinguished, with the guidance stating that ‘[t]he Minister is notified of [OIA requests] received by the NZDF in the Defence Ministers Weekly Report.’ The guidance itself, while extensive, can be further improved by including information such as a clear statement on where responsibility rests for decision-making on departmental OIAs, and whether all responses deemed of interest to the Minister are provided in full or can be notified by subject only or by brief synopsis.

Upon review of the NZDF’s responses to media information requests handled by the agency’s Media team, my investigators found that the Media team refused requests for information without citing the reasons relied on under the OIA, or informing requesters of their right to seek a review of the NZDF’s decision by way of a complaint to me. I consider this practice contrary to section 19 of the OIA.

It is also my opinion that the Media team has acted contrary to law in relation to section 17(2) of the Public Records Act 2005, which requires the NZDF to maintain full and accurate records for media information requests ‘in an accessible form, so as to be able to be used for subsequent reference.’ [1]

However, I have not made recommendations in these instances as the NZDF advised in its response to my provisional opinion that it will implement measures to address the identified issues.

The publication of the NZDF’s OIA guidance, accompanied with providing regular specialist OIA training to the Media team, will help ensure that staff within the Media team understand their obligations under the OIA, as well as give requesters a better understanding of the NZDF’s processes. These measures should be supported by messaging from senior leaders reinforcing that media information requests handled by the Media team must adhere to the OIA.  

The agency is currently dealing with a significant backlog of requests for military service records where these requests are processed with delays of almost 12 months.[2] The NZDF advised that the backlog has resulted from the impact of the 2020 lockdown, the upsurge of requests after Anzac Day commemorations, and some staffing changes that took place within the team tasked with handling requests for military service records.

While I acknowledge the NZDF’s attempts to address the backlog, I consider that the NZDF has acted contrary to law by not meeting its legal obligations under section 15(1) of the OIA. This section requires the NZDF to make and communicate its decisions on requests for military service records ‘as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the request is received’. Therefore, I recommend that the NZDF take steps to address the backlog of requests for military service records by ensuring that the requests are processed within the required statutory timeframes under the OIA.

Finally, I suggest that the NZDF ensure the accessibility of its official information by releasing information in a searchable format with all visual elements tagged with alternative text. This measure should also be applied to responses to OIA requests that the NZDF intends to publish on its new website.

Recommendation

Implement measures to address the backlog of requests for military service records by ensuring that NZDF has adequate resources to enable it to meet its legal obligations under the OIA

Action points

16. Develop a template letter for acknowledging receipt of OIA requests
17. Revise template letters for extending timeframes for responding to OIA requests and communicating refusals to release information under section 18(f) of the OIA incorporating my suggestions
18. Review the NZDF’s guidance on the agency’s interactions with the Minister’s office incorporating my suggestions.
19. Ensure the Media team’s responses to media information requests, which contain full or partial refusal, are dealt with in accordance with the provisions of the OIA
20. Ensure the Media team creates and maintains in an accessible form full and accurate records of substantive correspondence with requesters (including telephone conversations, meetings and verbal discussions), and any material internal discussions
21. Provide targeted OIA and information management and record keeping training to the Media team to ensure they understand their obligations under the OIA
22. Ensure messaging from senior leaders reinforces that media information requests handled by the Media team must adhere to the OIA
23. Ensure the text of all PDF documents proactively released are searchable and not ‘image only’, and all visual elements are tagged with alternative text

Performance monitoring and learning

The NZDF’s draft responses to OIA requests are peer-reviewed by completing a coversheet, which provides a strong base to help ensure high quality of the NZDF’s responses. However, I suggest that the agency consider developing a set of quality criteria against which all of NZDF’s draft responses to OIA requests can be reviewed. This measure can be supported by including clear guidance for staff around NZDF’s quality assurance and peer review policies and processes.

Quality assurance checks of OIA responses completed after requests are finalised is another way the NZDF can ensure that its practice is in accordance with the agency’s OIA guidance and consistent across the organisation.

The NZDF’s information management system, DDMS, captures a broad range of information on OIA requests, and the agency’s OIA guidance provides extensive instructions for staff around recording qualitative OIA data such as ‘total time taken to answer the request’. Some of the collected OIA data is reported weekly by the OIA team to senior leaders and ‘key personnel in all business portfolios’, with the weekly report containing a list of current OIA requests ‘presenting potential reputational risk’ and OIA requests due in the relevant week. The NZDF’s practices in this area can be further improved by including more data to monitor the quality of the agency’s responses to OIA requests. 

Action points

24. Consider reviewing the peer review template document and including guidance on peer review in DFI 0.70
25. Develop a quality assurance process for completed OIA requests
26. Collect and report further qualitative data on the handling of OIA requests
27. Include analysis of qualitative data on OIA requests (such as trends or themes of OIA requests) in statistical reporting to senior leadership