OIA ... TPP? FFS!

Back in December, my comrade Harley Greenbrook decided to take the notion of open and transparent government seriously ... and OIA'd Minister of Trade Tim Groser asking for anything and everything the Minister and his cohorts had on the TPPA (and, in specia, the drafts of the agreement themselves).

The response he got back was, quite frankly, laughable.

Now, given some of the recent and highly publicized incidences of a certain (sorry ... *cetacean*) private citizen repeatedly OIA'ing the government and getting back *exactly* what he asked for - occasionally even *within the hour*, and *particularly* when it came to what was supposedly classified or otherwise extraordinarily sensitive information ... Harley could, perhaps, be forgiven for expecting a similar level of *actual* response to his OIA request - rather than a paltry effort at abjuration that would disgrace the name of Thomas Jackson by referring to it as "stonewalling".

National's pretense of transparency around these issues is particularly galling given Groser's confusing assertions in the letter that his government has been "open about the issues under negotiation" - or, more outrageously, that "the consultation processes for the TPPA have been among the most extensive a New Zealand government has undertaken for any trade negotiation."

Oh really?

Given that National has fiercely resisted releasing the draft text for the TPPA - and thus, the scope and detail of the actual issues under discussion - even to Parliament (or, for that matter, lowly blog-based-citizen-journalists and other concerned citoyens) ... I'm not *quite* sure how Groser's curious statements square up with reality.

How do you meaningfully "consult" on something when the people you're allegedly consulting with have no idea about the contents of the thing they're being consulted on?

What's "open" about being continually asked to blindly trust National's assurances as to what's really in there? I mean, it's not like they'd have any demonstrable and vested interest in *lying wholesale* to the People of New Zealand in order to get the damn thing passed, is it? (Or, for that matter, a track-record of doing *exactly that* when it comes to other controversial legislation)

Why are they so incredibly eager to avoid any genuine transparency or scrutiny when it comes to the terms of the TPPA?

Would Cameron Slater have been more successful than Harley if *he'd* filed an OIA on the subject...

[If you don't get why taking the government at its word about the TPPA is an issue, then the next few paragraphs are for you. For everyone else who's *already* fundamentally distrusting of our government's machinations as standard operating procedure, skip straight ahead to the heading marked "OIAs".]

One of the reasons more than a million New Zealanders voted to change the electoral system in 1992, was because we were fulminatingly fed up with the fundamentally feudalist attitude to consultation and accountability displayed by each of the "big two" parties when it came to implementing myopic and manifestly masochistic economic policy.

We learned the hard way that if they're trying to pass controversial or unpopular policy with far-reaching consequences, neoliberal governments *will* attempt to obfuscate and outright lie to the electorate in order to get the job done. (Labour, for instance, tried to invoke a deity called TINA to tell us that there was no alternative to innovatively applied economic destruction as a tool for "reforming" our economy in the 1980s; while National promised us in 1990 that they'd "Roll Back Rogernomics" ... then gave us Ruthanasia instead once we'd voted for them)

That's why the advent of MMP was so vitally important for constraining the neoliberal agenda; and why National was so incredibly eager to try and ditch it back in 2011. Because in a world where the government feels it can relegate notions of democratic accountability down to the harvesting of an apparently quasi-carte-blanche mandate in a figurative box-ticking exercise once every three years instead of meaningfully engaging with the electorate ... it nevertheless remains (somewhat) answerable to Parliament. And, in contrast to willfully misleading the electorate, Misleading the House is something which posses actual and immediately enforceable consequences.

By refusing to release the terms of the TPPA to Parliament (despite other countries not exactly renowned for the transparency of their politics like Malaysia and the USA seeing the wisdom in letting their legislatures take a look at what they're signing up to), the government is attempting to render impotent the main effective check or tool of scrutiny which the People of New Zealand have on the implementation of whatever new neoliberal nonsense National now appears hell-bent on signing us up for this time.

And, in situations such as the present one wherein the faculties and institutions of our Parliamentary political process appear to be rendered less able to protect us due to deliberate incapacitation through sabotage from on high ... that doesn't mean we simply surrender and allow the government of the day to do as it pleases.

I'm a great believer in the creedo that when the orthodox and institutional political system appears to comprehensively drop the ball on an issue, it's the right and responsibility of the ordinary citizen to rise up and attempt to fix the situation.

(As an aside, this is one of the reasons why I'm an cautious advocate for a greater role for Direct Democracy in our system - as it affords an avenue by which popular opinion can circumvent complicit marginalization by pliant parties in Parliament. Given that it was precisely this sort of deliberate failure by the major parties to immanentize widespread popular opposition to Rogernomics and Ruthanasia that lead to over a million disgruntled Kiwis attempting to achieve with their votes in the 1992 electoral reform referendum the halt to the neoliberal revolution that their regular FPP votes in every election from 1984-90 had frustratingly failed to deliver; it makes a certain degree of sense to explore ways to let the electorate work *around* the Parliamentary parties *without* having to go straight for the nuclear option and threatening to overturn the electoral system entirely)

OIAs.

By filing his OIA and making an official demand for transparency on the TPPA from the government, that stepping up and unto the breach is exactly what Harley has done here.

Admittedly, given the fairly broad powers granted to officials under s6 and s9 of the Official Information Act 1982 to withhold information from applicants, getting access to the draft text of the TPPA through this mechanism was always incredibly unlikely. Although I also note that Harley's OIA didn't just request the drafts, but instead "all documentation" relating to the TPPA that the relevant Minister might have to hand.

This is a clever trick that may allow you to get something useful out of an OIA request even if the main focus of your inquiry is blocked from being released to you. Another one is to ask for a *list* of all documents on that subject held - which, apart providing helpful targeting information for your next OIA, also tells you handy things like whether they've bothered requesting cost-benefit or legislative impact analyses on a policy and what not (and therefore how far along a policy is, and how seriously they're taking it). A third idea that's particularly useful when OIA'ing the more *ahem* secretive government agencies, is to ask for the deletion date of files pertaining to information you're pretty sure they *should* have, or *did* have, yet which appears to have vanished off into the ether. I believe those last two suggestions fall into the category of "metadata analysis" :D

In retrospect, tightening up the phrasing on that part of Harley's request might have been a wise move to minimize the Minister's wiggle-room for playing silly buggers by ensuring that the specificity and particularity requirements under s12(2) were incontrovertibly met; but given Harley's quite clearly asked for "all documentation, including drafts related to the [TPPA]", rather than what appears to be the Minister's understanding that he was just after the draft, he might be able to take a crack at an appeal to the Ombudsman under s28. The grounds for this would be the Minister's office choosing to interpret the wording of his request in a manner that's arguably quite different in ambit to what he'd plainly intended and explicitly asked for. Which helps to illustrate why it's important to get the wording on your OIA right. The boffins charged with responding to OIA requests are, entirely unsurprisingly, highly malicious literal-genies when they think they can get away with it.

Now some of you might be asking - if it was always a virtual certainty that Harley's OIA would go nowhere ... why bother filing one on this subject in the first place? Particularly given there's a perfectly good (if a little outdated) series of draft chapters and other material to be found over on Wikileaks if you're actually interested in getting a rough sense of what National's engaged in signing us up to.

Well in most cases, one reason to first ask the legitimate source nicely instead of heading straight for the illicitly acquired material is for the sake of accuracy and completeness. There's apparently about 29 chapters in the TPPA, of which only a precious few have found their way out into the public domain via Wikileaks. Further, the material available on Wikileaks mostly dates from 2013 or early 2014; and it's entirely possible that those parts of the agreement have changed in important ways in the interim. While we've got very little choice when it comes to sourcing material from the TPPA, this nevertheless demonstrates that attempting to rely exclusively on unofficial sources doesn't always give you a full - or even entirely accurate - picture of what's going on.

It's also a matter of fairness and principle. Where there's a standard and established legal process by which to approach the government for official information, the moral and ethical thing to do (yes, there are such things in politics) is to start with that. Using the legal avenues also tends to be considerably less technically demanding/paranoia inducing than donning a white hat and trying to construct your own Raw-Shark-Tank.

Oh, and if you want to be ruthlessly pragmatic/trolly about it ... officials have a statutory duty under the Official Information Act to respond to your request. Previous miscreants have noted this and taken to filing dozens if not hundreds of individual (and slightly different, so as to prevent time-saving cookie-cutter responses) OIAs at particular targets in attempts to snow them under with requests that require not just a cursory letter of acknowledgement back (which is basically all you're entitled to get as the result of merely contacting an MP or Minister without invoking a specific statutory duty on their part), but the sparing of actual man-hours of time for the relevant staff to go off researching on your behalf (and therefore, stalled productivity on something *else* that your target's up to).

At the very least, by making an OIA request of the government on a contentious subject like this; you're making something of an official protest about the way the TPPA has been handled. Because every OIA request is logged and registered, the government is able to tell how many of them are going to particular ministries or departments, and on what issues. (A fact which became rather amusing and demonstrably useful for people who *weren't* the government when somebody had the bright idea of OIAing a list of the OIAs handled by the Ministry of Justice over the last 3 years with a view to catching FailOil & Judith playing in-House. See how *incredibly cool* these OIA things can be with a bit of creative thinking?! :D ) The resultant data gives them a crude barometer as to what issues out there in the electorate are riling people up enough that a mere mundane letter of protest to the ministry or minister doesn't cut it.

A sudden spike of thousands of OIA requests to MFaT querying the lack of transparency around the TPPA would definitely not go unnoticed; and there's a certain pleasing symbolism to the idea of street-protesters and online activists stepping into the realm of officialdom to engage the enemy with its own customary weapons of statute and bureaucracy.

Having said that, while persons such as myself who've got a Parliamentary Services background or longstanding political experience tend to feel reasonably comfortable deploying OIAs; I imagine that the idea of making the magic spell work by grappling with statute, doing a bit of targeting research, and then having to wait a month or more to find out if you've done it right renders the whole exercise a little more daunting for the average Kiwi. 

That's why I'm incredibly grateful for the existence of services like fyi.org.nz; which simplify the process down and make firing off an OIA something that's easily doable by just about anyone.

If you're interested in giving it a go yourself, it's not terribly hard to track down examples of successful OIAs to template yours off; and when it comes to the TPPA, there's certainly no shortage of contentious points to query about.

Obvious suggestions include: requesting documentation containing tangible evidence as to the benefits to NZ from joining (and, for that matter, the costs); asking for material covering what mechanisms (if any) the government intends to put in place to protect itself from lawsuits by foreign companies; or going after any information held by the Minister that establishes why Malaysian and American lawmakers are allowed to scrutinize the TPPA before signing, while their NZ MP counterparts are afforded no such privilege.

While the odds that you'll get a sane and sensible answer to just about any OIA on the TPPA are not exactly stellar; the point of this form of protest is to demonstrate that in the absence of readily afforded transparency, you will *demand* it.

And, just as importantly, that we point-blank *refuse* to accept, as my good friend Alex Fulton put it, the notion that the entire point of the OIA is "to deliver politically convenient material to the allies of the sitting government."