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Analysis by Dr Bryce Edwards – One of the central elements of any democracy is information. Voters need to know what’s going on in government for accountability to be possible. That’s why in New Zealand we have various conventions, as well as the Official Information Act (OIA), which are supposed to allow the public to see how decisions that affect them have been made. 

The idea of open government is an important one. Yet over the years, National and Labour-led governments in New Zealand have been finding ways to reduce their accountability by keeping official information from the public.

That’s why the current controversy involving Associate Transport Minister Julie Anne Genter is important. She is refusing to make public a letter that she wrote as part of government negotiations over some major transport spending decisions. Some see this as being in contravention of the OIA and the general principles of open government promised, not only by the new Government, but specifically by the Green Party which has campaigned in the past for more open government.

The issue relates to a Government transport package for the Wellington region, titled “Let’s Get Wellington Moving” (LGWM), which involves $6.4b of spending on various initiatives. Associate Minister of Transport Julie Anne Genter wrote to Transport Minister Phil Twyford on March 26 about the package of expenditure, making some arguments about what particular projects should get priority funding, and which ones should be delayed or maybe scrapped. And when the final project was announced, it seemed that she had got her way, with the Green-friendly projects agreed to, and the ones they don’t like (tunnels, improved roads, etc) delayed or scrapped. The result has therefore been controversial.

Not surprisingly, many want to know how the Government came to their decision, and whether the now infamous letter from Genter to Twyford might have had an impact on changing the decision. Speculation has been rife, but Genter has refused to make the letter public, despite claims that under the OIA the public have a right to see it.

In Wellington local government, there have been stories about how the Genter letter attempted to leverage Twyford’s decision by various threats of resignation and havoc if the Greens didn’t get their way on the transport spending decisions.

On Wednesday, Collette Devlin published an investigation into what had gone on, with allegations that Wellington Mayor Justin Lester had told councillors that unless the transport package was accepted the Government would be destabilised, with Green MPs threatening to resign, which had the potential to bring down the Government – see: City councillors claim Green Party agreement used as leverage to get agreement on Let’s Get Wellington Moving.

Here’s the main point of the article: “The Green Party confidence and supply agreement would have been put in jeopardy if a watered down Let’s Get Wellington Moving wasn’t accepted, city councillors claim. A number of Wellington city councillors have revealed to Stuff the behind-the-scenes conversations that pushed the mass transport deal over the line in council chambers.”

This story has been followed up today with further details from city councillors. For example, “Diane Calvert confirmed Lester said the Green Party would withdraw from the coalition if it didn’t get what it wanted.” The article also points out: “what Lester actually told councillors remains hotly disputed, with councillors adamant that their version of events are true. Despite the corroboration between councillors, Lester has denied any conversations took place” – see Collette Devlin and Tom Hunt’s He said, she said: Disagreement over Genter-Lester LGWM spat.

National Party Blogger David Farrar has characterised the Genter email as “blackmail” against her own government, and pointed out that someone in the Wellington City Council must be lying about it all: “Either Lester is lying or multiple Councillors have decided to lie in unison. Lester is of course an official Labour Party Mayor which means his loyalty is primarily to Labour, not Wellington” – see: The truth emerges.

Farrar also points out that although there have been various denials about the story from Genter and Twyford, they have chosen their language very carefully to deny that a resignation was offered in the letter, but not whether a resignation was threatened in the letter. And he concludes: “So now Wellingtonians know why they are condemned to a decade of growing congestion because the Green Party forced Labour to kill off any significant roading projects, and the Labour Mayor went along with them.”

Should Genter release the letter?

Some arguments have been made against the Genter letter being released. For example Wellington Mayor Justin Lester has reportedly said that the public isn’t interested to know why decisions have been made, only the outcome, and they just want to see the transport projects get going.

Disagreeing with this, Newstalk ZB journalist Georgina Campbell has argued “Just because the decisions on Wellington’s $6.4b transport overhaul have already been made doesn’t mean people don’t care about how those calling the shots made them” – see: Open and transparent? Release your letter Julie Anne Genter. She also says “as Lester is so fond of reminding the general public, LGWM is the biggest transport investment the city’s had in decades. It’s therefore hard to believe Wellingtonians wouldn’t be interested in how that investment was decided.”

The same article cites Labour Party councillor, Daran Ponter, who is the sustainable transport committee deputy chairperson on the Greater Wellington Regional Council: “Let’s see what it is that she had pushed for and the direction that she has changed, because the things that have arrived on Wellingtonians’ plate in relation to Let’s Get Welly Moving are certainly not the things that they identified as projects they wanted when it went into the parliamentary process”.

Newstalk ZB’s Barry Soper also makes the case for the release of the Genter letter, saying: Taxpayers deserve to know what Julie Anne Genter and Phil Twyford are hiding. He says “Wellingtonians are left speculating as to what influence the Greens have had in foiling the $6.4 billion transport plan.”

And he complains that the Greens’ refusal to release the letter means they simply aren’t living up their promise of transparency in government. He says: “They’re obviously hiding something and the taxpayer has a right to know.”

Parliament’s Speaker, Trevor Mallard, has added to the momentum for the release of the letter, refuting claims by Twyford that convention dictates that such letters can’t be released. Mallard says from personal experience as an Opposition MP, he’s expected the release of such official correspondence, saying “I know that I had, as an Opposition member, regularly received copies of letters between Ministers” – see Derek Cheng’s Speaker shoots down Phil Twyford’s reason for keeping information secret.

Mallard has gone further: “I made it clear in the House that I didn’t agree with the Minister’s assertion that all Minister to Minister letters were withheld as a matter of course. I think we’ve now agreed that’s not the case.”

Debates about whether the Genter letter is subject to the OIA

In refusing to release her letter to Twyford, Genter has argued that the correspondence simply isn’t subject to the OIA. This is because, she says, the communication wasn’t a ministerial letter, but instead was sent in her capacity as an MP rather than a minister. This raises some important questions over whether politicians in government can argue that their negotiation of Cabinet decisions can be deemed to be non-ministerial.

If such negotiations, in this case between the Transport Minister and the Associate Transport Minister, are simply between MPs rather than ministers, then Genter is correct. And therefore, the OIA doesn’t apply, and her letter doesn’t need to be released. This is covered in Georgina Campbell’s story, Chief Ombudsman to investigate Julie Anne Genter’s secret letter.

One problem for Genter’s argument is that her letter was sent on official ministerial letterhead, and was signed off with her ministerial title. But for this she blames stationary supply issues, saying “As it happens I had only one type of letterhead but that is something I will be changing”.

Another problem for Genter’s argument is that she has already been answering written and oral questions on the issue on the basis of the letter being a ministerial one. And on this, Parliament’s Speaker has also made it clear that Genter can’t simply change her mind and now suggest that the ministerial correspondence in question was a Green Party letter not subject to ministerial conventions, saying: “Once the House has been told it is a ministerial document, it is almost certainly not appropriate to reverse that.”

Another line of defence to stop the letter being released is to argue that it is “not in the public interest” because if such correspondence was regularly released, ministers wouldn’t feel comfortable having the necessary “free and frank” discussions on issues, knowing their words would end up in the public spotlight. And there is some backing for this position from Chief Ombudsman Peter Boshier who recently made a similar ruling, saying there was “strong interest in maintaining the Government’s ability to undertake effective and efficient political consultation with political parties” – see Zane Small’s story, Julie Anne Genter’s justification for refusing to release letter to Phil Twyford.

If such a decision applied in this case, it would show just how broken the Official Information Act is says Matthew Hooton in his hard-hitting column today – see: Julie Anne Genter’s antics over the lin  (paywalled). He says this would be absurd: “She claims she wrote as one ordinary MP to another on an inter-party matter. If that rule takes hold, Finance Minister Grant Robertson and his associate David Parker could claim all their correspondence about next year’s Budget is just two Labour MPs communicating about their re-election plans.”

Hooton details the origin of the OIA and how, over time, each government flouts the rules more than the last: “over the years the politicians have corrupted departmental processes using their so-called no surprises rule. An eternal rule of politics is that, when it comes to ethical questions such as complying with the OIA, each Government is worse than the one before. They adopt all the dirty tricks of their predecessors and invent new ones of their own.”

In terms of the letter in question, and Genter’s involvement in the Wellington transport decision, Hooton says the letter must be released or she should resign: “Under the OIA, the public has a legal right to see this to-ing and fro-ing about why their taxes will be spent on one thing instead of another. The Genter letter seems to have been pivotal.”

And he’s sceptical about the decision to shift transport resources into a tram for the city: “A billion-dollar airport tram in a hilly city with a population of just 220,000 and only another 300,000 in its wider region would be globally unusual. We should expect to see detailed consideration of arguments and counterarguments as the two ministers debate whether the tunnel or tram should have priority.”

Finally, Ben Thomas argues that the most revealing part of the saga probably won’t be the contents of the mysterious letter, suggesting that Genter’s evasiveness has created a frisson around the letter that is unlikely to be matched by reality. But he says her actions do give us a glimpse into “the soul of the government” by showing ministers don’t even feel the need to try anymore when seeking to avoid accountability or transparency – see: Julie Anne Genter and the game of hats.

MIL OSI AnalysisEveningReport.nz