Transparency: the gulf between words and actions

Shortly after WALTAG formed, in May 2018, I met with the then CEO Simon Wickham. At that meeting I requested some information including a copy of their most recent market research. Simon had commented on The Project just a few days earlier that The Trusts enjoyed the support of 70% of West Aucklanders. Simon assured me that releasing that information wouldn’t be a problem, but that some of it may need to be redacted as it was commercially sensitive. Cool, I thought – that sounds reasonable.

Fast forward to February 2021, almost three years later, and I still haven’t seen a single page from that market research report.

The Trusts have gone to extraordinary lengths to shield that market research report from public view. Why?

A LGOIMA odyssey

After that initial request, I went on to make two further official information requests of The Trusts in June and August 2018, and subsequently lodged complaints with the Ombudsman about The Trusts’ responses to each. I wrote about my experience back in early 2019.

My case with the Ombudsman was large and complicated due to the volume of information The Trusts had withheld and the games they had played to delay the process. My complaint progressed at a glacial pace. The Ombudsman is obliged to conduct his investigations privately and so the updates I received were infrequent and vague.

Somewhat unexpectedly in June 2019, The Trusts released a set of documents which were often heavily redacted and in some cases of limited relevance to my requests. I objected to the redactions, which undoubtedly added further complexity and prolonged the case.

Finally in late November 2020, the case finally appeared to be nearing its conclusion. I received a preliminary opinion which indicated that The Trusts would be required to release almost all the information they had previously withheld. Only on two grounds of my complaints had the Ombudsman decided that the information need not be released (as it did not exist when I requested it).

Surely this was the end. The Ombudsman would publish his final opinion and we would have a clear ruling about what information could be legitimately kept secret and what should be released. Unfortunately, that did not come to pass.

One (final?) cunning strategy

Having received a highly adverse provisional opinion from the Ombudsman, The Trusts must have faced a serious dilemma. Their options were limited.

• Accept the Ombudsman’s provisional judgment (that none of information could be legitimately withheld) and release the full set of documents.
• Defy the Ombudsman’s judgment and refuse to release the information. That would entail suffering significant damage to their credibility and reputation – perhaps even to the extent that the government would consider intervening.

The Trusts however managed to find a third option, releasing most of the information whilst continuing to withhold the information they consider most sensitive.

The key to the success of this strategy was convincing the Ombudsman that they have made “fresh” decisions about what information to withhold. Because my complaints relate to their previous decisions, which were made in 2018 and are now superseded by “fresh” decisions, they hoped the Ombudsman would close my case. Such an outcome would mean that no critical final opinion would be published and The Trusts could continue to keep their most sensitive information away from public eyes.

Yesterday, I was notified by the Ombudsman that he was indeed closing my case, though he stressed that I have the opportunity to make new complaints about The Trusts’ “fresh” decisions.

Having spent countless hours getting this far, this is a devastating blow and I am overwhelmed by a sense of unfairness. Although the Ombudsman has already considered and provisionally determined that the information should never have been withheld, The Trusts have effectively frustrated this process for almost 3 years, and now look set to continue to withhold the most interesting bits of information for months or perhaps years. That there is absolutely no consequence for their behaviour, not even a public criticism from the Ombudsman, feels deeply unjust.

Yet whilst this is a deeply disappointing outcome, it is not a dead-end and we have made substantial progress.

• The volume of information released on Tuesday is substantial
• The refusal to release the market research (and other key info) remains open to challenge
• The relatively small amount of information withheld will enable a targeted complaint which can hopefully be resolved relatively quickly

“As transparent as we can possibly be”?

The Trusts’ new CEO, Allan Pollard, said on Wednesday that as “stewards of community money, it is crucially important that we be as transparent as we can possibly be”. Time will tell if that is empty rhetoric or authentic ambition but, at this stage, his strategy to avoid the release of information indicates a gulf between his words and actions.

Allan is undoubtedly a huge improvement over his predecessor, but he has made it clear that he intends to fight to keep the monopoly. It is also telling that the information which he continues to withhold is the most relevant to a debate about the monopoly.

I will likely meet with Allan soon to discuss this information release and I shall remind him that political sensitivity is not a legitimate reason for withholding information. Regardless of his personal opinion, he has a moral and legal obligation to release information as required by LGOIMA, even if it disadvantages the presiding elected members and/or the monopoly. Let’s hope his moral compass is in better shape than his predecessor’s.