Investigators for the public: target transparency and timeliness

By Stephen Easton

Monday November 7, 2016

New Zealand’s Chief Ombudsman wants complaints handled more quickly, and public servants to push the government to new heights of transparency. He’s speaking in Sydney this week at the National Investigations Symposium.

Investigating claims of public sector bungling and malfeasance can be a complex and demanding job — but transparency and timely investigation of complaints and allegations thrown around the public sector are fundamental to modern democracy, says New Zealand’s Chief Ombudsman Peter Boshier.

The role of agencies like ombudsman’s offices, integrity watchdogs and the various commissions that deal with specific kinds of injustice is often a subject of robust public debate. These bodies seem to find themselves in frosty relationships with the government or opposition of the day more often than most and face regular legislative reform.

Bodies like the NSW Independent Commission Against Corruption not only need strong powers to uncover hidden corruption, but must also be seen to use them as a deterrent and to promote public confidence. In doing so, however, critics often accuse them of violating the rights of the accused, by publicising serious allegations that haven’t been proven in court.

In a similar way, ombudsman’s offices give aggrieved citizens an important avenue to complain about the government cheaply and easily. They too must be fair to people and organisations accused of wrongdoing and, in a politically charged environment, are often unable to satisfy either side completely.

The recent review of the Australian Government’s relatively new Public Interest Disclosure Act found deficiencies for whistleblowers and government agencies alike, and may lead to another round of legislative reform there as well.

Boshier (pictured above) has a keen understanding of all these issues, as the former principal judge of the NZ Family Court, and intends to use a strong public profile he developed through that role to enhance public confidence in the Ombudsman’s office.

The highly experienced jurist will discuss his early plans to speed up the office’s response times, which he accepts are too slow, and facilitate increased transparency, at a two-day symposium for government investigators and complaint handlers in Sydney this week. Hosted jointly by ICAC, the NSW Ombudsman and the NSW branch of the Institute for Public Administration Australia, the 11th National Investigations Symposium has a packed program of expert speakers this Wednesday and Thursday, followed by related professional development workshops on Friday.

Dealing with people from all walks of life in his time on the Family Court is a good basis for handling complaints at the Ombudsman’s Office, Boshier told Radio New Zealand in a recent interview.

“You’re dealing with people’s raw emotion, you’re dealing with people in crisis, you’re dealing with people that want things done according to timeliness,” he said. “Their life may be on hold. You’re making far-reaching decisions which … cause you to pause, cause you to reflect.”

In terms of its importance as a democratic institution, he believes the office he now leads is “up there” with parliament and the courts.

“And the reason is it’s the one avenue that New Zealanders can have, at no cost, where if they don’t think they’ve had a fair deal and they want someone to look at it — and they can’t get an official to do so — we will,” Boshier said.

“It’s fundamentally important, I think, for people with a grievance to know that in this democratic country, they have somewhere to go.”

As his office’s last annual report acknowledged, Boshier accepts there is a problem with complaints to the Ombudsman taking too long. He also believes public servants have some way to go to make the aims of the country’s far-reaching Official Information Act a reality.

“It was designed to bring New Zealand up to modern speed with openness, and yet there are still delays and difficulties in supply of information,” said Boshier, who is responsible for disputes around rejected information requests.

“And I think our job is to try and ease that process, to try and develop means by which, if someone wants legitimate information quickly, they should get it.”

Likewise, if there are “really good reasons” to withhold the information, that process should also occur as quickly and openly as possible, he believes. The new Chief Ombudsman accepts New Zealanders are frustrated by the process too often, and takes a dim view of charging fees for access. But he has also seen the other side of the story, where enormously broad information requests tie up a lot of public service resources.

“I happen to agree that charging [fees] should only carefully be undertaken by government agencies,” Boshier said in the radio interview. “… It should only apply in circumstances where it seems to be reasonable or needed.

“And most people should expect that they can get information according to the act’s wish for increasing openness — and that doesn’t include a hefty charge.”

The former judge advocates a more “robust” approach to asking information seekers to narrow down very large or open-ended requests by simply asking what they are really looking for. He suggests the ombudsman — it would the Information Commissioner in Australia — could then just go to the agency or minister and say: “This is what the person really wants. Will you do it?”

It might not work out so simply in highly politicised cases, like the long-running FOI battle between the current and former Australian attorneys-general, George Brandis and Mark Dreyfus. Or when activist groups seek ammunition to attack current policy that ministers would prefer they did not receive.

Another of Boshier’s suggestions is that NZ public servants with strong knowledge of the Official Information Act need to be “increasingly assertive with the agencies and the ministers they work for” about embracing the spirit of the legislation.

And to reduce delays in mediating information access disputes and responding to other complaints, the new Chief Ombudsman is looking to make the complaint management system more efficient, rather than ask for more funding.

“I think it’s up to me, and politicians will expect this, to manage the office in such a way that I’m not continually asking for money — that I am making it more and more efficient and changing processes so that we use what we’ve got to the best effect,” he said.

Boshier will be looking though every aspect of the system — “what happens when a complaint first comes in, how we assess it, how we deal with it and the level at which we resolve it” — and suspects the solution might lie at the start of the process.

It might be easier to tell New Zealanders with relatively trivial, vexatious or thin complaints upfront that their concerns are not a high priority.

“I may want us to devote more time to those requests that, on the face of it, at the beginning, have a lot in them,” said Boshier.

“The ones that are a bit more superficial might have to accept less input of time. We can’t be all things to all people. But we’ve got to deliver to those people that have had an unfair decision and who rely on us to put it right.”

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