The Official Information Act - Ma-ori with Lived Experience of Disability, and New Zealand Disability Data: a case study
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Paula King, Gabrielle Baker,
Bernadette Jones and Tristram Ingham
The Official
Information
-
Act
Maori with Lived Experience
of Disability, and New Zealand
Disability Data: a case study
Abstract
This article presents a case study of the use of not able to be released because it was not collected
the Official Information Act 1982 (OIA), for at all. The impact of these limitations is discussed,
research commissioned by the Waitangi Tribunal particularly pertaining to core government
in 2018 into disability-related issues for Mäori. roles of performance monitoring and ensuring
The responses of Crown organisations to OIA accountability.
requests examined in this research highlight In addition to querying who benefits from, and is
both issues with inconsistent application of the privileged by, the OIA and its application, questions
OIA, and limited access to information held and are raised around the necessary components of a
made available by Crown agencies for Mäori with legislation rewrite in order to deliver on a modern
lived experience of disability.1 The statutory time approach to official information that ensures
frame for responses to OIA requests was rarely met. equitable, high-performing and truly democratic
Organisations also resisted providing information, public administration.
while crucial information for ensuring equity for Keywords disability, Mäori, Official Information
Mäori with lived experience of disability was often Act, Waitangi Tribunal
Paula King (Te Rarawa, Ngäpuhi, Ngäti Whätua, Waikato-Tainui, Ngäti equity. Bernadette Jones (Ngä Wairiki, Ngäti Apa) is a senior research
Maniapoto) is a public health medicine specialist and senior research fellow at the University of Otago, specialising in Mäori health and disability
fellow at the University of Otago, Wellington, specialising in tängata equity. Tristram Ingham (Ngäti Kahungunu, Ngäti Porou) is a clinical
whenua rights to health and well-being. Gabrielle Baker (Ngäpuhi) is a epidemiologist and senior research fellow at the University of Otago,
director at Baker Consulting Ltd, specialising in Mäori health and health Wellington, specialising in health equity and healthcare governance.
Page 72 – Policy Quarterly – Volume 17, Issue 1 – February 2021Background
The Official Information Act 1982
... ‘the Tribunal’s information requests, and for deliberate
delay and obstruction. There is far too
(OIA) aims to make official information researcher much scope for organisations to delay
accessible, applying a general principle responding to a request until the
that information held by the New Zealand encountered information is no longer useful. And
government should be made available
unless there is a legislated ground for
considerable there should be a time limit on the
provision that allows an organisation
withholding it or refusing the request (ss5, difficulty in gaining to withhold information if it will ‘soon
6). The approach taken with the OIA is be publicly available’. Soon should not
in contrast to its predecessor legislation, full and timely mean ‘in two years’ time’. (Transparency
the Official Secrets Act 1951. This made it
an offence to release official information
access to official International New Zealand, 2019, p.2)
without authority (s6). However, the records through the Although there is regular informal
general report of the Committee on Official commentary about issues with the
Information published in 1980 found that centralised Official application of the OIA (Macdonald, 2020),
various government departments tended
to
Information Act there is very little information in the
available literature that focuses on the way
procedure the OIA is implemented currently across a
proceed on the assumption that there range of Crown organisations to which its
is in practice an implied authority to orchestrated by provisions apply. This article presents the
disclose a great deal. But the nature of
the information which is seen to be
Crown counsel’... findings from a case study of the use of the
OIA within the context of research
covered by such an authority has commissioned by the Waitangi Tribunal in
depended heavily on departmental and 2018.
ministerial attitudes. (Committee on
Official Information, 1980, p.13) governance’ (Price, 2005, p.50). In 2012 the Waitangi Tribunal research using the OIA
New Zealand Law Commission made a to collect information
Thus, the new Official Information Act range of recommendations on amendments The Waitangi Tribunal is a permanent
was intended not only to make information to the OIA itself, as well as on guidance to commission of inquiry, set up under
more available, but to do so in a way that agencies regarding application of OIA the Treaty of Waitangi Act 1975, with its
was both consistent across agencies and provisions, particularly around the primary purpose being to receive and
built trust and confidence in the operation withholding of information (New Zealand report on claims of Crown breaches of
of government (Committee on Official Law Commission 2012). the principles of the Treaty of Waitangi
Information, 1980; New Zealand Law In 2019 the minister of justice sought (Baker, Baxter and Crampton, 2019; Treaty
Commission, 2012; OIA, s4). Members of input from a select group of experts, as well of Waitangi Act 1975, s5). The inquiry into
Parliament have since spoken in favour of as public submissions, on whether to health services and outcomes (known as
the intent of the OIA, Labour’s Adrian review the OIA. More recently, the minister Wai 2575) is one of 11 kaupapa inquiries
Rurawhe stating: has stated to the media the government’s signalled by the Tribunal and includes over
commitment to rewriting the OIA 200 claims, organised into stages. The first
[t]he Official Information Act is one of (Macdonald, 2020). Publicly available of these was primary healthcare, reported
the few mechanisms of democratic submissions, and excerpts reported on on by the Tribunal in July 2019 (Waitangi
accountability: it gives taxpayers and from the submissions, have highlighted a Tribunal, 2019).
voters the confidence that decisions are number of concerns regarding ‘an The second stage of the inquiry focuses
made on their behalf, and that they are apparently broken process, with … on claims connected with disability, mental
right and proper. (Rurawhe, 2016) excessive delays and deletions, overuse of health, and alcohol, tobacco and substance
vague withholding grounds, political abuse (Waitangi Tribunal, 2018a). In
Concerns have been raised, however, interference and an ombudsman appeal anticipation of this stage of the inquiry
about inconsistent application of the OIA process made ineffective by sometimes process, the Tribunal commissioned
by government agencies and by ministers. years-long waits’ (ibid.), and the need for disability-focused research in late 2018.
Research over a decade ago examining over consequences for organisations that apply The purpose of the research was to examine
690 OIA requests, across a wide range of the OIA poorly. For instance, one how the contemporary health and disability
government agencies, found issues with the submission states: system recognises and provides for the
application of the OIA that ‘seriously needs of Mäori with lived experience of
compromise[d] the OIA’s ability to fulfil [t]here need to be real sanctions for disability, and to what extent Crown acts
its constitutional role of promoting delays caused by inefficient and overly or omissions have contributed to inequities
accountability, participation and good complicated processes for dealing with in disability services and outcomes for
Policy Quarterly – Volume 17, Issue 1 – February 2021 – Page 73The Official Information Act, Ma-ori with Lived Experience of Disability, and New Zealand Disability Data: a case study
Table 1: Time frames of Crown organisation responses to OIA requests disability; and how this data was used
Time frame for response Number of Percentage of to monitor health and disability system
responses responses performance. There was initial resistance
Within 20 working days with complete answers 10 30.3% from some Crown organisations to
providing responses to the OIA requests.
Within 20 working days with incomplete answers 4 12.1% For instance, a professional services
Beyond 20 working days with an extension 15 45.5% organisation for DHBs contacted the
researchers stating that the majority
Beyond 20 working days without an extension 3 9.1%
of the questions were ‘subjective’ and
Has yet to respond 1 3% because of this were outside the scope of
the OIA. Questions considered ‘subjective’
Mäori with lived experience of disability regarding a centralised Crown Law process included a request for a breakdown of
(King, 2019). around the release of information would be DHB board membership by ethnicity
remedied by the researchers, not Crown Law, (the two categories requested were
Background to the Waitangi Tribunal coordinating the requests, and within the Mäori and non-Mäori) and by disability
research and use of the OIA broader context of stronger central agency (King, 2019). Further clarification was
Kaupapa Mäori researchers were guidance developed for Crown organisations sought from this organisation on how a
commissioned by the Tribunal to examine in order to ensure swift and reasonable request for disaggregation of DHB board
the historical and contemporary issues release of information (Kibblewhite and membership by ethnicity and disability
relevant to Mäori with lived experience Boshier, 2018; Office of the Ombudsman, could be considered ‘subjective’, but no
of disability. This required access to 2019). further rationale or correspondence was
both primary and secondary sources provided to the researchers.
of information from a range of Crown The OIA request process
organisations with roles relevant to Mäori For the initial research, OIA requests were Delays in providing substantive
with lived experience of disability. sent to 33 Crown organisations, including responses to requests
A precedent had been set for use of the all 20 district health boards (DHBs), Fewer than a third of Crown organisations
OIA by earlier Tribunal research the Ministry of Health, the Accident provided responses within the statutory
commissioned for the inquiry into Napier Compensation Corporation, other health time frame of 20 working days to all
hospital and health services (Waitangi sector Crown entities (such as the Health aspects of the initial OIA requests made
Tribunal, 2001). The OIA process was Quality and Safety Commission), the of them (ten organisations out of 33). A
instigated by Crown organisations, with Office for Disability Issues, the Ministry for further four agencies responded to the
Crown Law running a centralised process to Children, the Department of Corrections initial request on time but did not provide
release information. However, in this case the and Te Puni Kökiri. All requests clearly complete answers. One other organisation
process appears to have been unsatisfactory, indicated that the information was did not acknowledge the request for 30
with the Tribunal report noting that ‘the sought for the Tribunal-commissioned working days, and is yet to provide a final
Tribunal’s researcher encountered research project. In accordance with the substantive response more than a year
considerable difficulty in gaining full and New Zealand Disability Strategy, which after the initial request was made. These
timely access to official records through the uses the United Nations Convention on findings align with those of Price (2005),
centralised Official Information Act the Rights of Persons with Disabilities who found that one out of every eight
procedure orchestrated by Crown counsel’ definition, disability was defined as ‘long- OIA responses exceeded the statutory time
(Waitangi Tribunal, 2001, p.20). term physical, mental, intellectual or frame (without requests for extensions
As the Tribunal’s research had to be sensory impairments which in interaction having been made).
completed within five months (Waitangi with various barriers may hinder … full Table 1 sets out the time frames for the
Tribunal, 2018a, 2018b), and due to previous and effective participation in society on first request and response for all 33 Crown
use of the OIA for Tribunal-commissioned an equal basis with others’ (Office for organisations. Note that for some
health research, the researchers opted to use Disability Issues, 2016, p.20). organisations there were follow-up OIA
the OIA to access information. This was requests, which are not covered in this table.
considered appropriate by the researchers Findings on the use of the OIA The OIA allows agencies to set
given both the statutory time frame for OIA Initial resistance by Crown organisations extensions for ‘a reasonable period of time
requests to be responded to of 20 working to providing responses to requests having regard to the circumstances’
days, and assumptions that each of the The OIA requests generally sought (s15A(2)). The Office of the Ombudsman
relevant Crown organisations would have information on how Mäori with lived provides agencies with further guidance,
adequate processes in place for responding experience of disability were involved emphasising that the concept of ‘reasonable’
swiftly to OIA requests. It was also in decision making, policy development, will depend upon the circumstances of the
reasonably assumed by the researchers that service design and delivery; provision of particular case (Office of the Ombudsman,
some of the issues previously raised data for Mäori with lived experience of 2019). Three agencies replied to the OIA
Page 74 – Policy Quarterly – Volume 17, Issue 1 – February 2021requests late, without seeking an extension. Table 2: Variation in DHB responses to OIA requests
Fifteen Crown organisations set extensions OIA request DHB responses
ranging from a few days through to an
additional 25 working days. Not enough Ethnicity and disability information on Thirteen DHBs indicated they did not hold this
information was provided by these agencies DHB board members information.
to determine if the extensions could be The Ministry of Health subsequently provided this
considered ‘reasonable’, but it is noted that data on behalf of all DHBs, but was only able
in one example a Crown organisation to identify whether DHB board members were
sought an extension of 20 working days in Mäori or non-Mäori, not whether they had lived
experience of disability.
order to answer a single question.
Spending on Mäori with lived experience Only eight DHBs were able to provide information
Incomplete responses were often provided of disability compared with non-Mäori on spending, with the rest providing partial
As previously noted, four agencies did with lived experience of disability information or stating that they did not hold this
respond to the initial OIA requests on information.
time but did not provide complete answers. Data disaggregated by: Mäori, non- Across all DHBs, variations of the following
Incomplete answers were fairly common Mäori, Mäori with lived experience of response were common: ‘[the] DHB does not
and included responses where information disability, and non-Mäori with lived collect patient data/information specific to a
was withheld without sufficient rationale, experience of disability person’s disability or impairment. There is
responses were too general to address the therefore no basis for understanding how well we
requests adequately, wording of requests respond to those with impairment or disability’
was repeated in responses without (King, 2019, p.159).
providing any additional information, or Some DHBs sought clarification on the definition
the rationale provided for withholding of disability before declining the request on the
information seemed implausible (for basis that they do not collect information on
instance, the information was already disability.
publicly available or had been released
under a previous OIA request, when, in Although every DHB was sent the same It can be argued that this rationale does
fact, this was not the case). set of OIA requests, there was variation in not stand up to scrutiny, as there are a
the responses as to what information they number of services that DHBs are
Variation across the 20 district health boards held, what information they released, and responsible for providing to Mäori with
in approaches to the OIA the reasons why they withheld information lived experience of disability. Although the
As set out in the New Zealand Public (Table 2). For instance, seven DHBs Ministry of Health has funding
Health and Disability Act 2000, all 20 provided responses that were unclear or responsibility for a limited range of
DHBs have the same roles and functions. simply did not address the questions disability support services for people under
This includes objectives to: ‘promote outlined in the OIA request. One DHB 65 (Ministry of Health, 2020), DHBs still
effective care or support for those in need reiterated what its professional services have funding and statutory responsibilities
of personal health services or disability organisation had previously stated, that a for healthcare and disability support
support services’ within their districts; number of the questions in the request were services for their entire population,
‘promote the inclusion and participation ‘outside the scope’ of the OIA (King, 2019). including Mäori with lived experience of
in society and independence of people disability (New Zealand Public Health and
with disabilities’; ‘reduce, with a view to Complicated funding and accountability Disability Act 2000, s22). In this specific
eliminating, health outcome disparities arrangements within the health and case, a complicated funding arrangement
between various population groups’; disability system make navigating appears to have been used as a means of
and improve ‘health outcomes for Mäori OIA processes challenging avoiding answering an OIA request.
and other population groups’ (s22(1)). The specific arrangements between DHBs DHBs have both a provider function
Although it was found wanting by the and the Ministry of Health and the range relating to services delivered by the DHB
Tribunal (Waitangi Tribunal, 2019), of functions carried out by each DHB and its staff – for example, in hospitals –
the governing legislation of DHBs also can be complicated. Intentionally or not, and a funder function covering the
provides mechanisms to give effect to the this can make direct answers difficult to purchasing of services delivered in the
principles of the Treaty of Waitangi/te obtain, which has implications for citizens community (Gifford et al., 2020), and DHB
Tiriti o Waitangi regarding participation attempting to navigate the OIA process. responses to OIA requests were often
of Mäori in decision making and service For instance, one DHB referred to funding unclear around which of these two
delivery. For this reason, it was anticipated arrangements with the ministry as limiting functions was being referred to. For
that DHBs would hold information the information that DHBs hold for Mäori instance, one DHB responded to a question
pertaining to issues relevant to Mäori with with lived experience of disability if they asking about workforce development
lived experience of disability. are under 65 years of age. within its district by providing an answer
Policy Quarterly – Volume 17, Issue 1 – February 2021 – Page 75The Official Information Act, Ma-ori with Lived Experience of Disability, and New Zealand Disability Data: a case study
Table 3: OIA requests refused under sections 18(e) and 18(f) of the legislation lack of data collection when it comes to
Ground for refusing request Subject of requests Mäori with lived experience of disability.
Section 18(e) Membership of ministerial committees disaggregated by This is not an issue with the legislation
… that the document alleged ethnicity and disability governing the release of government
to contain the information Number of providers contracted to provide health or information, but it shows that legislation
requested does not exist or, disability support services to Mäori with lived experience on information availability is not enough
despite reasonable efforts to of disability in and of itself to provide appropriate
locate it, cannot be found. levels of democratic accountability and
Proportion of Vote Health targeted for healthcare and
disability supports for Mäori with lived experience of transparency to all population groups.
disability The well-documented inequities between
Section 18(f) Number of disabled Mäori and disabled non-Mäori in care Mäori and non-Mäori (Ministry of Health,
… that the information and protection residences and youth justice residences 2015) and increasing information available
requested cannot be made Number of disabled Mäori and disabled non-Mäori in on the inequities faced by Mäori with lived
available without substantial prisons who have been referred to disability support experience of disability (King, 2019; Ministry
collation or research. services of Health, 2019a) have highlighted
Staff training in cultural competence/safety and disability government failures in meeting the health
responsiveness and disability needs of Mäori. This is echoed
Number of mechanical restraint incidents disaggregated by the chief ombudsman, who recently
by ethnicity and disability investigated the collection, use and reporting
of information about the deaths of people
that pertained to a specific part of a There are serious gaps in official information with intellectual disabilities. There the
hospital. Based on responses, it was difficult for Ma-ori with lived experience of disability ombudsman found that ‘[t]he Ministry [of
for the researchers to ascertain whether or Across four central government agencies, a Health]’s systems did not support the
not DHBs even considered issues around number of requests were refused because collection of complete, accurate or sufficient
workforce development when purchasing information did not exist or would information, in the context of its fundamental
services for communities within their require unreasonable efforts to locate or responsibilities and obligations’ (Office of the
district. compile (see Table 3). The information Ombudsman, 2020, p.8).
covered by these requests related to data Additionally, the lack of information
Not all Crown organisations appear to that would support service planning and held by central government agencies raises
have well-implemented OIA processes funding decisions, as well as health and questions about the ability of these agencies
There were a number of administration disability system monitoring. For example, to give effect to their obligations under te
issues with the OIA responses. For information requested would support an Tiriti o Waitangi. In mid-2019 the Tribunal
example, some Crown organisations understanding of the effectiveness of the released its Wai 2575 report examining two
did not calculate the 20-working-day Ministry for Children and the Department primary healthcare claims. The Tribunal
time frame accurately. Although most of Corrections in meeting the health and found that a number of principles of the
organisations acknowledged the receipt disability needs of people in their care. It Treaty had been breached by the Crown in
of an OIA request, this was not universal, is concerning such information either does its approach to primary healthcare and
and in one case the original OIA request not exist, or is not held in a way that means critiqued the Crown’s adoption of
was not logged officially, causing delay in agencies can be accountable to Mäori with principles of ‘partnership’, ‘participation’
the overall response. lived experience of disability. and ‘protection’ (Waitangi Tribunal, 2019).
Understanding of the OIA also appears The Tribunal articulated instead a broader
varied among Crown organisations. For Discussion set of five principles: the guarantee of tino
instance, one organisation requested that The findings of the Waitangi Tribunal- rangatiratanga; the principle of equity; the
the researchers keep the material provided commissioned research overall principle of active protection; the principle
in the OIA response confidential (despite it demonstrated the disconnect between the of options; and the principle of partnership.
being released under the OIA without Crown’s stated objectives and its actions All five of these principles require good
redactions and without there being any (or inactions), which disproportionately, quality ethnicity and disability data to
obvious personal information). These unfairly and unjustly impacted on support policy development, service design,
variations were substantially more common Mäori with lived experience of disability funding, monitoring and evaluation. The
among Crown organisations outside central (King, 2019). The findings of this case guarantee of tino rangatiratanga goes
government. The Law Commission has study around use of the OIA to access further, emphasising that Mäori should
previously noted difficulties in administering information relevant to Mäori with lived have access to high-quality information in
the OIA faced by ‘smaller agencies who have experience of disability further illuminates order to monitor the performance of
not had frequent experience in applying the how Crown action (and inaction) unfairly government systems.
legislation’ (New Zealand Law Commission, and unjustly affects this group. The use of The suggestion that collating data on
2012, p.9). the OIA has also served to highlight the mechanical restraints used on Mäori and/
Page 76 – Policy Quarterly – Volume 17, Issue 1 – February 2021or Mäori with lived experience of
disability, or providing information about
... despite the OIA oppression (King, 2019), such findings
stress the considerable limitations of the
contracted providers of health or disability being nearly 40 OIA in providing a means of truly
support services for Mäori with lived democratic accountability for all
experience of disability, would require years old, Crown population groups within New Zealand. In
‘unreasonable efforts’ is of concern. This
indicates that the test of what constitutes
organisations are some notable instances, Crown
organisations contributed to some of the
‘reasonable efforts’ is unrelated to the not consistent in delay in OIA responses and created
seriousness of the issues, or the impact on seemingly unnecessary difficulties for the
Mäori generally and Mäori with lived their approach to researchers: for instance, describing OIA
experience of disability specifically. This
is a variation on the findings of Price
it; nor are they requests as ‘subjective’ and therefore not
within the scope of the OIA (King, 2019).
(2005), which highlighted an inadequate reliable when it Given the gaps in disability information
balance of public interest considerations. for Mäori held by Crown organisations,
That study reported that three out of four comes to providing such delays could potentially appear to be
OIA responses failed to explicitly balance
public interest considerations in the
official information tactics to avoid further scrutiny. This is
particularly concerning given the critical
decisions made to withhold information. on time. importance of this information and the
With regard to what should be part of ongoing failures of Crown organisations
decisions on whether effort to collate in meeting the needs of Mäori with lived
information is reasonable, public interest experience of disability (King, 2019;
should take into account government Responses to the OIA requests in this case Ministry of Health, 2019a).
obligations under te Tiriti o Waitangi, study suggest that the government
human rights legislation (the Human obligations under international human Conclusion
Rights Act 1993, the New Zealand Bill of rights instruments are not being fully met The findings of this case study indicate that,
Rights Act 1990) and various international by Crown organisations. despite the OIA being nearly 40 years old,
human rights instruments that have been The lack of high-quality data available Crown organisations are not consistent in
ratified by New Zealand (United Nations, for Mäori with lived experience of disability their approach to it; nor are they reliable
1946, 1966a, 1966b, 1966c, 1979, 1989, is likely to have practical implications for when it comes to providing official
1990, 2006, 2007). the day-to-day operations of Crown information on time. Given alignment
In the case of information relating to organisations. High-quality DHB-level between issues identified in this case study
seclusion and restraint, there is heightened data can support decision making and and the findings of Price (2005), it appears
interest driven by human rights concerns improvements in health and disability that, for well over a decade, developments
at its overuse (Committee on the Rights of services, and elimination of inequities in pertaining to the OIA, including
Persons with Disabilities, 2018) and terms of both DHB funding arms improved guidance to agencies (Office
evidence demonstrating inequities for responsible for the allocation of the DHB’s of the Ombudsman, 2019), have been
Mäori in the use of seclusion and share of Vote Health resources, and the insufficient. Some of these issues could be
segregation units (King, 2019; Ministry of DHB provider arms that have responsibility the result of organisational immaturity
Health, 2019b; Shalev, 2017). The United for specific service areas (Gifford et al., (particularly outside central government);
Nations Convention on the Rights of 2020). This information is clearly however, regardless of the reasons why,
Persons with Disabilities (ratified by the incomplete when it comes to Mäori with historical and current application of the
government in 2008) also articulates a clear lived experience of disability, severely OIA appears to be against the spirit of
obligation on states to collect appropriate limiting the ability of DHBs to carry out information availability and democratic
information, including statistical and their core functions. accountability that the OIA was founded
research data, to enable them to formulate In accordance with findings from on.
and implement policies to give effect to the commentators (Macdonald, 2020; New The OIA has been purported to
convention (United Nations, 2006, article Zealand Law Commission, 2012; Price, increase trust and confidence in
31). International human rights 2005), this case study highlights that, where government. This case study has indicated,
instruments ratified by government also information does exist, the application of however, that for some parts of the
state the right to the enjoyment of the the OIA across government agencies population, who already experience
highest attainable standard of health for requires knowledge and resources multiple forms of structural oppression,
Mäori with lived experience of disability (including time) in order to navigate OIA there is limited information on which to
(United Nations, 1966c, article 12; 1989, requests and government responses. build this trust and confidence. The
article 24; 2006, article 25; 2007, article 24), Within the context of information sought demonstrable reinforcement of existing
a right which requires high-quality for a population group that already power structures means that many of the
information in order to be given full effect. experiences multiple forms of structural benefits of the OIA are reserved for those
Policy Quarterly – Volume 17, Issue 1 – February 2021 – Page 77The Official Information Act, Ma-ori with Lived Experience of Disability and New Zealand Disability Data: a case study
who hold the most power and privilege the introduction of the OIA, raise questions performing and truly democratic public
within New Zealand society. The growing for the government about how to address administration.
understanding of how Crown organisations the inadequacies of current legislation and
1 The authors use the term ‘Mäori with lived experience of
must apply the principles of te Tiriti o urgently make the changes required to disability’, acknowledging that there are a range of terms
Waitangi to their work, and the increased deliver on a modern approach to official that may be used instead.
focus on human rights obligations since information that ensures equitable, high-
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