Still Under Wraps: Official Information Laws Keep Free Trade Details Away From Prying Public Eyes

I don’t know if he still uses it, but as a Member of Parliament in New Zealand, before being inflicted on the rest of the world through the WTO, one of Mike Moore’s favourite expressions was “I could tell you, but then I’d have to kill you.”

A Malaysian human rights lawyer once told me that it was a great thing that New Zealand has an Official Information Act, while Malaysia still has an Official Secrets Act. But when it comes to seeking official documentation on New Zealand commitments to free trade and investment, it often seems there are more official secrets than information.

Internationally, many NGOs, lobbyists and trade unions expend much energy and focus on the secretive, anti-democratic processes by which international trade and investment agreements are negotiated.

Some put forward proposals to make the WTO and other fora for economic liberalisation more “transparent”, “open” and “accountable”, as if that was the main problem with these institutions, their decision-making and the agendas that they promote.

Nice-sounding terms like good governance and transparency have little to do with people’s democratic rights. They are mere buzzwords for a limited state designed to service the free market and undermine popular mandates.

They are explicitly linked to the kinds of structural adjustment measures promoted by the World Bank and the Asian Development Bank – measures for which there is little popular support and which are rapidly increasing economic inequalities.

As Hong Kong-based labour activist/researcher Gerard Greenfield points out: “We need to have the ability to do something about what we see otherwise we’ll just be spectators in a transparent process.”

That is not to say that we should not be critical about issues of transparency and accountability. But I am unsure why we should be surprised by such secrecy and lack of accountability in international institutions when it does not exist at the national level.

Domestic legislation hardly allows for genuine public scrutiny of government commitments in international arena, even in countries whose governments portray themselves as model democracies.

Proponents of free trade and investment agreements in the New Zealand government want to have their cake and eat it too. The Official Information Act helps them to do so. Jim Sutton, Mike Moore’s successor as the New Zealand Labour Party’s chief free trade cheerleader and current Minister for Trade Negotiations claims that critics of corporate globalisation have “rocks in their heads” and are ill-informed.

Meanwhile, he and other members of his government routinely refuse to release information about negotiations on deals like the controversial bilateral trade and investment agreement, the so-called “closer economic partnership” (CEP) between New Zealand and Hong Kong, until talks have been concluded.

My computer is full of letters requesting documents from officials and ministers made under the Official Information Act about New Zealand’s commitments to trade and investment liberalization.

For almost every request comes some reason to withhold the material, some new stalling tactic, a denial of a document’s existence, or a hefty charge which effectively puts the information out of reach of anyone in a community organization or trade union. Then follows a long and often unsuccessful process of review by the underresourced Ombudsmen’s office.

In this era where the phrases good governance, transparency and open government buzz all around us, ordinary people’s rights to scrutinize the details of deals to which government technocrats are committing us all remain greatly hampered by the exercise of legislation supposedly drafted to “increase progressively the availability of official information to the people of New Zealand”.

Enacted in 1982, the Official Information Act is supposed to enable us to enjoy “more effective participation in the making and administration of laws and policies”, to “promote the accountability of Ministers of the Crown and officials”, and so on. Dream on.

The Act allows for the withholding of information provided in confidence by another government or international organisation, and information considered likely to seriously damage the economy by premature disclosure of a decision “to change or continue Government economic or financial policies… relating to entering into of overseas trade agreements”.

That already makes access to official information in order to analyse and contest New Zealand commitments to trade and investment agreements before negotiations are concluded difficult. Then there is the often defensive, sometimes downright obstructive stance taken by officials when considering information requests. Arguments about public interest considerations in releasing the material usually fall on deaf ears.

When we have successfully obtained official documents they have often provided important insights into the development of policy and positions, and shed light on internal contradictions, concerns and tensions within government.

Prior to its hosting of 1999’s APEC meetings, I secured documents under the Official Information Act which showed how the government sought to use NGOs and Maori as part of a communications strategy to build broad support for APEC and to manage dissent. With these in hand we successfully exposed the government’s attempt to woo “responsive” NGOs into selling APEC’s free trade and investment agenda to middle New Zealand.

But often information is released too late for it to contribute to a debate about an agreement or policy initiative before it is implemented.

I spent nearly a year and a half chasing official documents relating to New Zealand commitments to trade liberalization in the forest products sector at APEC and the WTO. Although the original request was lodged months ahead of the September 1999 Auckland APEC Summit, and the Seattle WTO Ministerial, the few documents which the government finally released in 2000, after a standoff over the thousands of dollars demanded for processing and copying the information (a fraction of what I had sought) came far too late to feed into contesting the policy positions before those meetings. How convenient.

Many officials and ministers clearly feel that they fulfil their commitments to transparency and open government merely by working in offices with windows.

At the same time, we are increasingly being invited to “informed briefings” by officials whose job is to advance the negotiations and conclude the agreement. And of course they want to corral us into these meetings or more informal verbal briefings.

Anything which the government can claim as consultation with the public in an area of policy under such siege for being fundamentally anti-democratic they will present with a grand flourish and fanfare as proof of open and democratic process.

Yet the parameters of the discussions in which they are prepared to engage are based firmly on the assumptions that free trade and investment is the only way forward. What do we need to see details on paper for when we should be satisfied with officials’ vapid Powerpoint presentations, minimalist briefing documents, and assurances that it’s all good? We are supposed to trust the officials and politicians. Too bad if they are wrong.

While in opposition, the Labour Party’s policy research unit was a heavy user of the Official Information Act and the Ombudsman and critical of their functioning. Yet in its two years in government since 1999, the workings of the Act have not improved.

In fact many researchers, activists, academics and journalists with whom I have spoken agree with me that things have got worse. Letters have been “lost” by officials, replies sent weeks after the 20 working day timeline in the legislation, or even no reply sent at all until follow-up emails and phonecalls are made.

Steep charging regimes for information continue to ensure that only those with sufficient financial resources can afford what information officials are willing to release. Often we are told to revise our requests to narrow the scope of the request.

Yet for any indepth policy analysis, and without being privy to exact dates and the nature of documents in existence, it is often impossible to be more precise. Conversely, if a request is worded very precisely, officials or ministers can get pedantic and withhold information because it does not technically match the description of what is requested.

The functioning of official information legislation in New Zealand and comparable jurisdictions confirms my deep cynicism about the commitments to openness of supposed model Western democracies – self-appointed champions of good governance for the rest of the world. Critics of the neoliberal agenda are to be left to speculate about the contents of the agreements and to shadow-box with government.

Writing to me in August, Jim Sutton implicitly admitted that the release of Cabinet papers and negotiating proposals would lead to such public concern that the Hong Kong agreement would almost certainly not proceed. He wrote:

“This would in my view seriously compromise progress in the negotiations and the achievement of a CEP agreement acceptable to both sides. In essence you are asking the two Governments to negotiate the CEP Agreement in public. That is a recipe for quick failure. (I realize you would be very comfortable with such an outcome but I would not be). Were I to release details of the negotiations at each stage, Hong Kong would inevitably see it as a ham-fisted attempt by New Zealand to put pressure on it to agree to our negotiating proposals.”

For all their fine words and self-congratulatory rhetoric about the openness of their decision-making processes, their approach to information disclosure shows that those in power remain as fearful of genuine debate on free trade and investment as they have always been.

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