IRD OIA denouement

It looks like I'd failed to blog the denouement to the IRD data OIA mess last year. Let's fix that now.

Loyal readers will recall the history:

It's been a long saga, and it isn't over yet. But the end is in sight. 

On 12 February, 2019, I put in an OIA request for the data from the polling that IRD had commissioned from Colmar Brunton on tax attitudes. 

On 12 March, 2019, IRD declined the request on grounds that it would be considered sensitive tax data. I brought the matter to the Ombudsman the next day. But it later turned out that they had ordered the data destroyed. 

On 1 November, 2019, IRD gave me revised grounds for having refused the request: that the data had been destroyed. 

I had a chat with the Archivist's Office about what's required for that kind of destruction of public records, then went back to the Ombudsman.

On 12 March, 2020, the Chief Ombudsman provided a substantial slap to IRD and directed them to get the data. 

At last night's meeting of the Khandallah Economics Association, I'd noted some of these problems where it seemed, at least to me, as though IRD was acting as though it thought the OIA didn't apply to it, and that it seemed to be ignoring its requirements under the Public Records Act. 

But then I'd realised I'd failed to blog the last bits. Covid-year, eh?

IRD eventually provided some of the data. They provided it in aggregated form. They also provided the individual-level data, with every detail blacked out. I've put everything up in a folder, here. You can also find IRD's explanation of its reasoning about why they could black everything out. 

On seeing the data dictionary, it was rather less interesting than I'd expected. I'd thought it was going to be about attitudes towards specific taxes. Instead it was about trust in IRD. It would be fun to play with anonymised data from that survey. But it was no longer worth protracted battles via the Ombudsman's office. I thought it was going to have data about views on capital gains taxes and land taxes and the like; nope. All the back-and-forth is taxing. 

But I'd also put in a query with the Chief Archivist because it looked like IRD had ordered data destruction in ways contrary to their disposal authority. Then I OIAed for any note sent from the Archivist to IRD about it. And I got this from the Chief Archivist. 

I read this as a bit of a slap to IRD for ignoring its requirements under the Public Records Act. 

I should have blogged this ages ago. Apologies!

Tax attitude data - the IRD OIA slowly progresses

It's been a long saga, and it isn't over yet. But the end is in sight. 

On 12 February, 2019, I put in an OIA request for the data from the polling that IRD had commissioned from Colmar Brunton on tax attitudes. 

On 12 March, 2019, IRD declined the request on grounds that it would be considered sensitive tax data. I brought the matter to the Ombudsman the next day. But it later turned out that they had ordered the data destroyed. 

On 1 November, 2019, IRD gave me revised grounds for having refused the request: that the data had been destroyed. 

I had a chat with the Archivist's Office about what's required for that kind of destruction of public records, then went back to the Ombudsman.

On 12 March, 2020, the Chief Ombudsman provided a substantial slap to IRD and directed them to get the data. 

Some particularly nice bits from that report:

You have acknowledged that IR’s original decision to refuse the request on this basis was incorrect. I agree. It is difficult, in circumstances where IR has not reviewed the information at issue, to be satisfied that its disclosure would be contrary to the Tax Administration Act.

This is particularly nice because IR claimed its original decision was wrong on the basis that the data had been destroyed and consequently couldn't be supplied. They didn't say that their original justification for withholding the data, had it existed, was incorrect. The Ombudsman here is telling them that their withholding as tax secret was wrong full stop.

IR has contended that, in retrospect, Clause 4.3.2 of its Disposal Authority, DA418, authorises the disposal of this kind of information. It is possible this is correct.8 However, as IR did not document its decision of 9 February 2019, I am unable to satisfy myself that IR properly turned its mind to its Disposal Authority when it decided to instruct Colmar Brunton to delete the political leanings data. It is, in short, not clear that its disposal was properly authorised.

I therefore consider that IR was obliged, in the circumstances set out above, to contact Colmar Brunton to seek access to any backups of the political leanings data held by it or Dimensions while considering Dr Crampton’s request. In the absence of such efforts, I am not persuaded, subject to your further comment, that IR was entitled to refuse the request under section 18(e) of the OIA.

The Chief Ombudsman also referred the matter to the Chief Archivist to check whether IRD was also in breach of its obligations under the Public Records Act. 

The Ombudsman asked that, by 9 April 2020, IRD provide him with the steps they would take to give effect to his recommendation.

On Tuesday, 19 May 2020, IRD provided me this update:

Dear Dr Crampton

I am writing to advise you of our next steps with regards to your complaint to the Ombudsman.

As advised by the Ombudsman in his final letter, we requested the data for the Trust in IR research survey from Colmar Brunton. We are currently working through the data and will let you know the result of your request for the data in due course.

Kind regards

Government & Executive Services 

So, fifteen months after my original request, IRD says that they're working through the data to see what they can give me. Stay tuned. I'll have to set a calendar flag to follow this up in 20 working days if I've not heard anything. 

IRD and the OIA

This one has been dragging on for a while, but it's coming to a rather nice resolution.

Recall that, rather some time ago, I'd made an OIA request of Inland Revenue for the data that they had collected on tax attitudes. IRD was under fire for what was considered to be partisan polling. I'd never considered it to have been partisan; tax attitudes and how they align with political party affiliation is interesting for both the tax department and more generally.

So I figured that IRD's best move would have been simply to release the data broadly, so they couldn't be accused of having gathered it for Labour.

IRD didn't do that, so I put in an OIA request for the data.

And waited.

That whole saga and appeals to the Ombudsman are summarised here.

And now I've a very nice letter back from the Ombudsman, copied below. There are a few very nice slaps in there about IRD's needing to remember its duties.

I will be interested to see how IRD replies to this.

Data preservation?

Is there any requirement that public agencies not have data destroyed?

Ages back, I'd put in an OIA request of IRD looking for the tax polling data that they had commissioned. If you'll recall, IRD was accused of partisanship when it had Colmar Brunton run some polls on public views on different taxes, and the polling included some political identification questions for the respondents.

I never bought that there was any partisan purpose to the polling - IRD has good reason to want to know attitudes to tax. And political identification questions could simply be part of the standard battery of questions provided in the baseline poll that IRD's questions were added to.

So I OIAed for that underlying data, figuring that the data's being public would mitigate any worries about partisan use of the data, and that the data would also be interesting for others. I'd have been keen to see how support for capital gains taxes played out.

I made my OIA request on 12 February. On 12 March, IRD refused the request. They noted that polled individuals were given assurances that their data would be kept secret. So that made it important for the integrity of the tax system that the individual-level data be withheld. I went to the Ombudsman, wondering whether Ministries could get around the OIA by providing assurances to people in meetings, for example, that notes or recollections from those meetings would be kept secret.

Anyway, that Ombudsman process has been going on for months. But on Friday (1 November), I got a letter from IRD saying they'd given me the wrong grounds for refusing the request. They'd requested that Colmar Brunton destroy the data on 9 February.

We knew, from the SSC report of July, that IRD had made that request of Colmar Brunton; I'd assumed that IRD continued to hold its own copy of the data because they'd refused to give it to me. I presume that Friday's letter means that IRD requested the destruction of the only copy of the data.

I've followed up with the Ombudsman's office asking whether there's any public records requirements that Ministries and agencies like IRD preserve data like this rather than destroying it when media starts calling. Recall that IRD started getting media calls on the polling (from the SSC report) on 5 February, and was interviewed about it by the Fairfax papers on 7-8 February. They requested the data's destruction on 9 February.

It would seem a bit off if it were possible to avoid OIA requests by preemptive data destruction.

Previously:

• IRD Polling and the OIA

IRD polling and the Official Information Act - Updated

Back in February, Stuff reported on IRD's polling about attitudes to tax. The poll was controversial because it included questions on respondents' ideological self-identification.  

I never took the polling as having been undertaken with partisan intent - I'd thought that the left-right identification question came from the standard battery of questions included in that poll, with IRD's questions added to that battery. So I was rather more interested in IRD simply releasing that polling data to avoid any potential appearance of partisan advantage that might obtain if anyone expected the government had access to the poll data while the opposition did not - and because it would just be cool to have that data. You could imagine that, in the context of policy argument around capital gains taxes, polling data on tax attitudes combined with data on ideological affiliation would have partisan advantage; releasing the data to everyone would level any perceived tilt to the playing field.

Hamish Rutherford reports today on the SSC investigation into that polling work - and polling undertaken by DoC and even Stats that had the appearance of partisan effect. That SSC report is available here.

This part of Hamish's reporting now worries me:

In a statement, Commissioner of Inland revenue, Naomi Ferguson said the department "absolutely understands the principle of political neutrality".

IRD had instructed Colmar Brunton to delete the data on political learnings and not report on it, while Ferguson said no evidence of political motivation had been found. She had indicated she accepted the findings and recommendations of the SSC report.

On 12 February, I requested that data via an Official Information Act request. The information Hamish now reports destroyed - and almost certainly destroyed only after I made the request. Can they do that? [UPDATE: the request for data deletion was made more quickly than I made my OIA requests. See update at the end of the post. I'd thought that my request was very prompt on reporting having started on the issue; IRD requested deletion on 9 February.] 

Here's the trail.

IRD declined the request, citing its general rule that every single thing in the IRD building or that IRD has ever breathed upon counts as secret tax data - the release of which would imperil the administration of the tax system. It also cited assurances of secrecy provided to survey respondents. 

On 13 March, I asked the Ombudsman to review Deputy Commissioner Cunnington's decision. If IRD's position that an undertaking with survey participants was sufficient to block an OIA release, that could have interesting OIA implications. Every government meeting with anyone could begin with an undertaking that the results of the meeting would never be released to anyone. 

On 25 June, the Ombudsman's Office told me that they had received some relevant information and their investigation was continuing. I've not heard anything since then.

And, today, I find out via the Dom Post that IRD told Colmar Brunton to destroy the data that I have requested. I do not know whether IRD also destroyed its own copy.

Is it quite cricket to order the destruction of data that is under OIA request and Ombudsman investigation? Seems a bit ... peremptory.

I should follow up with the Ombudsman again.

UPDATE: The SSC report has the date of the request from IRD to Colmar Brunton as 9 February - so the request for deletion happened after media enquiries began but before my OIA request; I thought my OIA request was quicker off the draw than that. So at the point that IRD answered the request, they either still had their own copy of the data, or knew that the data no longer existed.