STATE SERVICES COMMISSION Te ltamihana 0 iigi Tari Kiwanalanga SSC Report: New Zealand?s Open Government Programme Mid? term Self?Assessment Report Publication Date: 4 December 2015 880 report no: Contact: . Tim Blackmore Telephone: 495 6713 Principal Advisor Proposal: 1. This briefing: 1.1 provides a final mid?term self-assessment report on New Ze-aland?s Noted 2014/16 Open Government Partnership (0GP) National Action Plan, for your review, in Attachment 1 with changes from the discussion draft highlighted 1.2 seeks your agreement to publish the final version of the self? Yes/No assessment report with changes incorporated on the SSC and OGP international websites, with an intended release time of- 21 December 2015. 2. As part of its OGP membership, New Zealand is required to publish a final mid?term self- assessment report (the Report) outlining New Zealand?S progress against its 2014-16 OGP National Action Plan. The Report needs to outline the consultation process undertaken to develop the National Action Plan, and our progress towards achieving our specified commitments Up to September 2015. 3. A draft of the Report was released for public comment in late October 2015. This final consultation process hasnow concluded, with a small number Of submissions received. A final version of the Report has been prepared for publication, following this consuha?on. I 4. It is important that we publish the Report either before the end of December 2015, (or, at the very' latest, by mid-January 2015) to ensure that New Zealand is not referred to the OGP international body?s Criteria and Standards subcommittee for inquiry and possible questioning concerning New Zealand?s ongoing eligibility for membership of the OGP. Key points: Summary of mid-term self-assessment Report findin gs 5. The Report outlines a number of core achievements against our national commitments. The key message of the Report is that substantial progress has occurred across all Action Plan commitments, which are: a. the Better Public Service (BPS) Results Programme the Government ICT Strategy and Action Plan to 2017 responding to the Transparency International National Integrity System Report d. reviewing the Kia Tutahu Relationship Accord. 6. The Report also highlights the progress towards the OGP grand challenges and principles that is demonstrated through actions included in the Action Plan. The OGP grand challenges relevant to New Zealand?s National Action Plan are: improving public services; increasing public integrity, and more efficiently managing public resources. The principles are transparency; accountability; participation, and technology and innovation. Consultation 7. As set out in the Report outlines the breadth of consultation undertaken when developing New Zealand's first OGP National Action Plan and corresponding draft mid?term self?assessment report. 8. The Report acknowledges tight timeframes for consultation, and that as a result consultation was constrained. SSC worked to meet OGP consultation obligations, and sought clarity where there was uncertainty and responded accordingly by providing a further consultation period for the draft mid-term self?assessment report and extending online consultation channels. Summary of submissions on the draft mid-term self-assessment Report 9. A final public consultation process on the mid?term self?assessment draft occurred in October 2015. A summary of submissions and analysis is provided in Attachment 2 to this briefing. Revision to New Zealand?s draft mid-term self?assessment Report 10. Following submission analysis we have incorporated some changes to the final mid? term selt?assessment Report. Relevant adjustments include: a. insertion of further information in the next steps section of the Report to include additional text on the intended New Zealand process and approach to the next OGP National Action Plan development and consultation processes b. insertion of further comment on the digital consultation outcomes, to update on the further submissions received, including a large targeted group of submissions on the Trans Pacific Partnership Agreement c. inclusion of suggested changes from the Office of the Auditor-General d. other minor amendments and reference changes as Updates since the release of the draft mid?term assessment. 11.. These changed are outlined as annotations in the version of the report attached to this bne?ng. Engagement with other agencies 12. SSC has developed the mid?term self?assessment in consultation with agency leads for each of the Action Plan commitments. 13.? The minor changes from the draft mid?term self?assessment to the final publication version have now been discussed with each agency. Communications context 14. The community of interest for the OGP self?assessment is small, but there are some strongly critical voices. It can be expected that the final publication of New Zealand?s mid-term self?assessment will generate some negative comment consistent with some of the consultation feedback we have received. This is likely to focus on a perceived . lack of commitment and ambition, the scope of communications/consultation undertaken 1 in the lead up to New Zealand's agreement of the TPPA, the government?s online communication channel for open government, experienced a considerable spike in submission traf?c on the government's OGP digital consultation channel. Over a period of some ?ve working days a group of over 600 respondents provided input en masse through the OGP site. The majority of this commentary consisted of one or two lines of personal views indicating that that New Zealand?s approach to the TPPA negotiations was inconsistent with New Zealand's reported position on open government. This TPPA?related group of submissions has been linked to online issues-based campaigning that sought for the public to voice opposition to the TPPA and negotiations though a breadth of social media channels and telephone calling of MP3 and Ministers? offices. 15. 16. 17. to date, and possibly, further concerns with the TPPA, and non?inclusion of argued inadequacies in openness and risks in New Zealand?s mid-term self?assessment report. As part of the formal OGP process an independent researcher, Steven Price, Victoria University Law School, has been commissioned by the OGP international body to conduct an independent third party review of New Zealand?s National Action Plan development and mid?term self-assessment, and to report back. Mr Price has undertaken his own independent consultations as part of thisreview. His existing public commentary on this engagement suggests that his draft review findings may: a. be critical of New Zealand?s ambition, extent of consultation with civil society, and approach to OGP self-assessment reporting. b. criticise the appropriateness of New Zealand?s OGP commitments 0. reflect particular civil society and community voices and their concerns. However, there is a very positive story of progress to be told about New Zealand?s achievements, which demonstrates clear deliverables in a variety of areas across relevant OGP grand challenges and principles. We need to be mindful of where New Zealand sits in the context of public sector and national integrity, globally, and present our legitimate and relevant achievements through our mid?term self-assessment. Communications approach 18. 19. We propose the release of the mid-term self?assessment through a soft launch-of the . Report on the 8805 website, and contemporaneous publication on the OGP international website, preferably on the week of 21 December 2015. We will develop a short statement to accompany the publication of the Report. This statement will: a. outline the general nature of the Report b. acknowledge the input and submissions from stakeholders, particularly on consultation processes and National Action Agenda ambition c. recognise that OGP consultation processes may need to be further augmented, to improve the representativeness and breadth of feedback and engagement d. note that the government is committed to developing a new work programme and a refined set of OGP commitments, incorporating lessons learnt from New Zealand?s first year of OGP country membership, and stakeholder feedback, and that this process to due to commence shortly -- . e. note that New Zealand?s government administration continues to evolve, with new initiatives that improve New Zealand?s openness in government and stretch government beyond its existing baseline of reform confirm that New Zealand intends to refine and revise its commitments and the reporting against commitments in future years, building on stakeholder feedback and recent experience gathered following change and refinement in OGP guidance. We will liaise further with your office on any associated media releases or responses that may be needed, following publication. A further briefing on the OGP forward work programme 20. 21. 880 and other government agency officials have been reflecting on how we may improve stakeholder engagement and coverage to support the next National Action Plan, and enhance the perception of New Zealand?s ambition and direction through the OGP programme. We will report to you separately with options and recommendations for: a. reconfiguring consultation mechanisms, coverage and management b. refining'New Zealand?s future OGP reporting programme given the international reputational aspects of New Zealand?s ongoing membership of the OGP, and our domestic OGP programme management obligations c. ensuring that our future 0GP engagement may augment, support and build on New Zealand?s public service reform and state services innovation agenda d. your early contribution and review of themes to be included in the next National Action Plan for OGP. COmments: Ag reed I Not agreed Minister?s signature: Date: Attachment 1: Mid-term Self-Assessment Report Attachment 2: Summary of submissions on draft mid?term self-assessment report and Submission Analysis Submissions Four respondents provided submissions on the draft report. A summary of these submissions is provided below: - Transparency International this submission: 0 encouraged greater public participation in agenda development and wider outreach for the next National Action Plan - asserted that the 2014?16 National Action Plan is largely derivative, claiming that currently listed programmes were internal government exercises rather than externally facing suggested further refinement of New Zealand response to the National Integrity Systems Assessment to further define initiatives and milestones for inclusion in the New Zealand OGP National Action Plan endorsed the inclusion of Kia Tutahi in the National Action Plan, but suggested expansion of OGP initiatives and relevant measures and milestones to more fully reference grand challenges and principles advocated further inclusion of actions within the OGP National Action Plan Agenda to better ensure the effectiveness of the Official information Act criticised the compressed timeframes for consultation and advocated that further resources be provide to enable fuller national public participation on a revised OGP action agenda. The Office of the Auditor General?this submission was supportive of the report, it: noted opportunities to deepen the accountability reporting for BPS results through including some of these results more formally in responsible entities? statements of service performance advocated alignment of this with the development of an evaluation framework for the New Zealand?s OGP initiatives suggested inclusion of a further passage in the ICT strategy section of the mid-term self-assessment report mentioning the government?s more open approach to publishing information on the Government?s future capital injections. The Environment and Conservation Organisation of New Zealand (ECONZ) this submission: - noted role in supporting open government, open society, and environmental rights, constitutional reform and the institutions that maintain an open and democratic society encouraged the government to include issues of democracy, due process, rights of civil society, privacy from spying and timeliness of release of information, in the OGP National Action Plan suggested more specificity and extension of milestones, targets and actions in the OGP National Action Plan advocated inclusion of New Zealand case studies that identified open government failings and problems in the self?assessment report. ECONZ in its submission cited alleged ?abuse of state held information as a means to embarrass political opponents?; ?the extension of surveillance and the scope and reach of surveillance"; and ?the illegal denial of information on trade, investment and economic agreements? as key examples of- failings that should be outlined in the self?assessment, with remedies identified proposed that New Zealand should ratify and give effect to the Aarhus Convention2 formally the Convention on Access to Information, Public Participation in Decision- making and access to Justice in Environmental Matters 2 The Aarhus Convention is a multilateral environmental agreement through which opportunities for citizens to access environmental information are increased and transparent and reliable regulation procedure is encouraged. The convention was developed by European nations in 1998, and many of the principles and obligations are now already reflected-in EU directives. Notably, there are no non?European signatories to the agreement. While many of the obligations of the convention would align with Open 0 included a number of suggestions for improving access to information for New Zealanders, through reform to New Zealand freedom of information legislation, institutions and norms. 0 Mr Malcom Harbrow a blogger3 and individual interested in open government. This submission advocated a restructuring of the report, questioned the relevance of New Zealand including pre?existing government reform programmes within the action plan, and advocated that greater resources be provided to support engagement with civil society to co-create a second action plan. Mr Harbrow also suggested removal of illustrative case studies, and the addition of more milestone driven reporting. Submission analysis Of the four submissions received, one was supportive and three have provided feedback that criticise: - the ambition and appropriateness of what has been included in New Zealand?s OGP National Action Plan - New Zealand's perceived reliance on pre?existing programmes 0 the extent and breadth of community and civil society engagement in developing the New Zealand National Action Plan. These criticisms are not new, and have already been reflected in the mid-term self? assessment report. We propose to address these concerns through the development of the next National Action Plan. This revision will include more direct consultation and engagement to receive broader input from stakeholders, aligned to future development of a new National Action Plan. We do not accord with the extent of criticism concerning the pre-existing nature of New Zealand?s OGP commitments. Indeed, we propose to refine New Zealand?s National Action Plan to incorporate and align with aspects of New Zealand?s continuing public sector reform programme. We intend to leverage projects within New Zealand?s ongoing reform agenda, where it is possible to demonstrate improved results in openness, access to information, or responsiveness against pre?existing baselines. We Will retain this position going forward, noting that: - Guidance provided by the Open Government Partnership support unit, indicates that Governments may include specific open government strategies and ongoing programs in National Action Plans and that action plan commitments may build on existing efforts, and identify new steps to complete ongoing reforms, or initiate action in new areas. Guidance also indicates that it will be rare, although not impossible, that that new policy areas will be introduced as part of the Open Government Partnership. Accordingly, we are of the view that it is legitimate for New Zealand and OGP member countries to use impactful pre?existing programmes as core commitments, noting that the OGP recognises this and that many (if not the majority) of commitments will need to utilise existing policies, legislation, and accountability mechanisms. - theBPS results, the New Zealand?s government strategy, the Result 10 initiatives and programme, the Open Data and information Programme, and the Kia TUtahi Relationship Accord (included in New Zealand?s current National Action Plan) have Government principles, it is not clear whether the Convention is available for endorsement by non-European nations. It is also a binding treaty, with obligations that may or may not meet with New Zealand?s domestic law or policy settings. Wider policy work would need to be commissioned, to confirm that it is in New Zealand's interests to sign the convention, and that the convention's adoption would actually support community engagement and citizen?s voice in environmental regulation, in New Zealand. At this stage we are not proposing to progress this suggestion within the OGP partnership, particularly given the cross-endorsement between the OGP programme and New Zealand's adoption of the UN 2030 Sustainable Development Agenda that has recently occurred. How New Zealand addresses this cross-endorsement and adoption is the broader more relevant question that needs to be addressed. This thinking would need to precede any possible consideration of New Zealand adoption of the Aarhus Convention. 3 See: delivered impactful transformative change with consequent improvements in public services responsiveness to citizens and clients through 2014 and 2015._ - These commitments stretch government practice ina number of ways: 0 The BPS programme and target reporting has established improved access to information on public services and has developed the means for local collaboration . and development of initiatives to address key social and economic outcomes. 0 The BPS Result 10 work, in particular, has established new approaches to responding to citizen and client voice, through citizen and client centric service design and outreach. The refresh of the Government Strategy has focused efforts on delivering a dynamic technology environment, so that government can achieve its vision of lCT-enabled transformation of public services to New Zealanders, in partnership with citizens and clients. The strategy has also supported new o'nline engagement guidance and capacity building for New Zealanders. The government?s review of the Kia T?tahi Relationship Accord has provided the opportunity to consider better case examples of good community?government engagement practices, showing the principles of the Accord in action. The survey results have also identified key areas for further action to better support constructive community engagement. These outcomes are reflected in the mid-term self?assessment report, and further developments with these programmes will be relevant and appropriate for the end-of?term self?assessment report in 2016. Evolution of OGP reporting guidance and obligations When considering respondents? comments it is important to recognise that New Zealand?s first National Action Plan commitment-s predate the latest revisions to the OGP Articles of Governance approved by the International Steering Committee that occurred in 2015. These revisions and amendments have refined some OGP obligations for reporting. For example New Zealand?s Strategy was included in our National Action Plan on the basis that the Strategy supported transformation and innovation of government programmes and services and improvement in the openness and responsiveness of Government, and in turn would contribute to augmenting integrity and trust in government over time. The inclusion of the ICT Strategy was not progressed with the explicit intent of presenting how the government?s technology and strategy would specifically and exclusively address transparency and accountability. This is because the OGP Articles of Governance that were current at the time were not as explicit on these particular obligations as subsequent OGP Articles of Governance and guidance. New Zealand?s OGP reporting approach needs to reflect this evolution in guidance and obligations. We are in discussions with the OGP international body about how reporting expectations are best addressed given this circumstance. . Notwithstanding these matters, the-general nature of the public submissions on the draft mid? term self-assessment report provide relevant input for the Government when considering future consultation processes. They also provide relevant input for future commitment development for the next OGP National Action Plan. This process of revision will be supported by the OGP Stakeholder Advisory Group.