CAFCA Forces OIO To Lift Cloak Of Secrecy On Its Approvals

- Murray Horton

CAFCA has had a relationship with the Overseas Investment Office (and the Overseas Investment Commission before that) dating back to the 1980s, when we waged a five year long campaign just to get any access to its data at all. For many years the procedure was this: with almost no exceptions the OIO always withheld some Decisions from its monthly batch (in some cases it was the whole Decision; in the great majority it was just the “consideration” i.e. how much was paid).

CAFCA routinely appealed all such deletions to the OIO; once again, with very few exceptions, it upheld the deletions. We then appealed those to the Ombudsman, usually three months worth at a time. Those had been piling up and we had received no verdicts from the Ombudsman on any of our appeals for several years. In 2015 the Office of the Ombudsman decided that it wanted to meet with this Mr Horton of CAFCA who had put in 100 appeals (I was impressed to learn that) and who was tying up its valuable time and resources.

James Ayers is the Committee member who writes up and analyses the OIO’s monthly Decisions for both Watchdog and the CAFCA Website. So James and I duly met with Ombudsman Professor Ron Paterson, in Christchurch, in April 2015. He agreed to urge the OIO to release the “considerations” of a large backlog of deleted Decisions which we had appealed. The OIO subsequently released to us a great wodge of previously withheld Decisions, complete with the considerations, spanning the period 2012-14 inclusive.

To be precise, the OIO released 88 Decisions which had previously had material withheld; but it decided to withhold four Decisions indefinitely, and will review another 16 after a specified period of time (it has told us when that will happen, in every case. However, that review will not be until 2018 in three of those cases).

Whole New Regime

More significantly, the OIO has decided to institute a whole new regime relating to the cloak of secrecy thrown over foreign investment applications to it (the new regime actually started as from May 2015 but CAFCA was only informed of it in April 2016 by Professor Paterson). To quote his letter to us: “If the OIO determines that there are good grounds under the Official Information Act for withholding the information, the applicant is advised that the information will be withheld for a period of one year or until such time as the information becomes public (whichever is earlier)”.

“If the applicant considers that the information should remain confidential beyond the specified expiry date, the onus is on the applicant to write to the OIO explaining why that is the case. The OIO will then reconsider the grounds for withholding. With these actions, the OIO has effectively changed its starting position with respect to information that is deemed confidential when a Decision summary is released – that is, confidentiality is maintained for a specified period rather than indefinitely. The onus is on applicants to contact the OIO if they consider that there are good grounds under the Official Information Act to withhold the information after the expiry of the specified period”.

This is a definite improvement on the OIO’s previous position (i.e. throwing an indefinite cloak of secrecy over all or part of its monthly Decisions). CAFCA thanks Professor Paterson for his work on this. And we pat ourselves on the back for continuing to hold to account this very publicity-shy, rubber stamping part of the State’s foreign investment “oversight” regime. CAFCA is fundamentally opposed to the whole “come on in and help yourselves” message to foreign investors from Governments led by both major parties.

That being the case, the Overseas Investment Office has not seen the last of us just yet. We will continue to appeal Decisions that are fully or partly withheld even after its one year review. But, at least, the OIO’s rubber stamping won’t be hidden behind closed doors quite so often. As for the Ombudsman, Professor Paterson couldn’t wait to close all outstanding appeals from CAFCA. And he subsequently upheld the OIO in permanently withholding the four Decisions mentioned above, and in not reviewing those three other Decisions until 2018. So it’s not a new age of transparency just yet. But it’s a definite improvement on what it was. And none of it would have happened if it wasn’t for CAFCA’s dogged determination.

The Ombudsman’s Case Note (Professor Paterson’s full decision) can be read online at the Website of the Office of the Ombudsman at http://www.ombudsman.parliament.nz/newsroom/item/new-case-note-overseas-investment-office-consent-application-decision-summaries-investment-in-sensitive-nz-assets.


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