10 April 2011
Commentary on the proper handling of information has captured many column inches recently. The Accident Compensation Corporation will have an uphill struggle defending some of its processes. But there is also an interesting contrast in the way officials in Britain and the United States have handled sensitive information. In a strange set of circumstances the British Serious Organised Crime Agency has been shown to have provided inherently harmful information about British residents to corrupt officials in the Russian Interior Ministry, allegedly involved in the death of Sergei Magnitsky. In the United States, on the eve of Good Friday, and presumably to minimise media coverage, a former CIA officer was charged under the Espionage Act with leaking information to journalists regarding waterboarding by the CIA. The GAP website (Government Accountability Project) claims that charges are a measure to punish whistleblowing, that the officer was unique when he stuck his neck out five years ago, stating that waterboarding was torture.
In New Zealand, the Official Information Act has been with us throughout the careers of the vast majority of State sector employees. The Human Resource Survey (2011) indicates that the average length of service in a Public Service department is 9 years and the average age is 44.3 years. It can be inferred from this that most would still have been at school when the Official Secrets Act was repealed. Most State Servants have only ever “known” the Official Information Act, with its purpose to increase progressively the availability of official information to the people of New Zealand. (The complaint of the media of course is that an institutional memory of the Official Secrets Act is embedded, that secrecy is implicit in the culture of government and officials are occupationally resistant to openness in their work.)
Information is a primary asset of government. It is an asset that officials have a primary obligation to protect. The underpinning principle is that information shall be made available unless there is good reason for withholding it. But that doesn’t mean that the Official Information Act is a mandate for agency staff to exercise personal notions of the best use of information.
The State Services code of conduct includes a standard that “We must treat information with care and use it only for proper purposes”
“The proper management of information is central to the integrity of the State Services. We have a duty to handle official information appropriately and ensure that personal privacy rights are preserved. We must all be familiar with legal obligations relating to the protection and release of official information. Statutory privacy principles must always govern the handling of personal information. … It is a breach of trust for us to make use of information that we have learned through our work, or to disclose it in any way, unless we have permission to do so. We should always be very circumspect about discussing our organisation’s information when we are not directly engaged in organisation business… “
Information held by an agency belongs to that agency. Every disclosure of material not already publicly available, must be properly authorised. The Protected Disclosures Act provides the circuit breaker where agency staff learn of serious wrongdoing within that agency.The Act specifies the disclosure process and the obligation of an agency to act on that disclosure. Whistleblowing by releasing information to a foreign enforcement agency or to the media can never be appropriate or lawful.