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Hobbling the News Hobbling the News A study of loss of freedom of information as a presumptive right for public-interest journalists in Aotearoa New Zealand Greg Treadwell 2018 School of Communication Studies A thesis submitted to Auckland University of Technology in fulfilment of the requirements for the degree of Doctor of Philosophy Primary Supervisor: Associate Professor Verica Rupar Secondary Supervisor: Associate Professor Donald Matheson ii Abstract Public-interest journalism is widely acknowledged as critical in any attempt at sustaining actually-existing democracy and is reliant on access to State-held information for its effectiveness. The success of Aotearoa New Zealand’s Official Information Act 1982 contributed to domestic and international constructions of the nation as among the most politically transparent on Earth. Early narratives, partially heroic in character and woven primarily by policy and legal scholars, helped sophisticate early understanding of the notably liberal disclosure law. However, they came to stand in stark contrast to the powerful stories of norm-based newsroom culture, in which public-interest journalists making freedom-of-information (FOI) requests bemoaned an impenetrable wall of officialdom. Set against a literature that validates its context, inquiry and method, this thesis explores those practice-based accounts of FOI failures and their implications for public-interest journalism, and ultimately political transparency, in Aotearoa New Zealand. It reconstructs FOI as a human right, defines its role in democracy theory and traverses the distance between theory and actually-existing FOI. The research employs field theory in its approach to FOI as a site of inter-field contestation, revealing that beyond the constitutional niceties of disclosure principles, agents of the omnipotent field of political power maintain their status through, in part, the suppression of those principles. Those agents of the previously autonomous public administrative field, in relative terms, are subsumed into the field of power to act in its principal agents’ interests. The instruments of power that allow the agency of State officials to become dominant over the agency of skilled and experienced public-interest journalists become visible through the investigation. A thematic analysis of rich data generated from transcripts of 18 semi-structured interviews lies at the heart of the empirical and phenomenological research. This analysis is triangulated with historical document analysis to establish the political thinking behind the establishment of one of the world’s first and most celebrated FOI regimes, and supported through the deep understanding offered by a case study of FOI failure. Through this approach, this doctoral research considers the struggles of accountability journalism and acts of State secrecy against the background of neoliberalisation of economic and social structures that began two years after the establishment of the nation’s FOI regime in 1982. The corrective mechanism of disclosure laws operates to some extent but the publicising of information politically harmful to the Government is significantly restricted and FOI failures are, over time, normalised. The research also uses theories of neoliberal hegemony to reveal an opacity growing over State expenditure through the iii corporatisation and privatisation of State services and finds public-interest journalism in Aotearoa New Zealand, without significant legislative change, has few options beyond its dysfunctional relationship with the agents of a reluctant State. iv Dedication Ka whakaihi ahau tēnei tohu tākuta ki tōku pāpara – he tānekaha, haere rā, haere rā, haere rā. This thesis is dedicated to my father, Paul Treadwell, an exceptional barrister and advocate, who sparked my enduring interest in freedom of information when he gave me David Leigh’s book The Frontiers of Secrecy in 1981. He died during the production of this doctorate but wherever he might be now, I know he is still trying to keep the bastards honest. Leigh’s book still sits on my desk. v Acknowledgements I would like to acknowledge the exceptional support and guidance I received during the completion of this doctorate from my primary supervisor, Associate Professor Verica Rupar, whose wisdom and patience have been invaluable, and whose belief in the role of journalism scholarship has been inspirational. My gratitude also goes to Associate Professor Donald Matheson, my secondary supervisor, whose advice along this journey has been deeply helpful and appreciated. I am grateful to both supervisors for their enduring faith. As well, I would like to acknowledge renowned journalist Rob Hosking, old friend and FOI warrior, who sadly passed away shortly before the completion of this research. I must, of course, also thank my daughters, Rose and Billie, and my wife, Fleur Toogood, without whose tautoko it would all have been quite impossible. vi Table of Contents Attestation of authorship / Ethics approval xi List of tables xii 1. Journalism and the Public Right to Know 1 1.1 What is FOI and What Does It Do? 5 1.1.1 A rights approach 6 1.1.2 A journalist’s rights 7 1.2 FOI in Aotearoa New Zealand 8 1.2.1 Threading another strand 10 1.3 Research Problem 12 1.3.1 Research questions 13 1.3.1.1 Primary Research Question 13 1.3.1.2 Research sub-questions 13 1.4 Research Approach 13 1.5 Summary 15 2. Literature: A Precarious Human Right 18 2.1 Why does Democracy need FOI? 20 2.1.1 Democracy in theoretical terms 21 2.1.1.1 Representation 23 2.1.1.2 Accountability 23 2.1.1.3 A fourth estate 24 2.2 Truths at the FOI Coalface 25 2.2.1 The undermining of FOI 26 2.2.2 A retraction from openness 28 2.2.3 Administrative discretion 28 2.3 Scholarship of FOI in Aotearoa New Zealand 30 2.3.1 Counter-narratives from the frontline 30 2.4 Journalism Studies 31 2.4.1 Neoliberalism in Aotearoa New Zealand 40 2.4.1.1 Neoliberalism under the light of field theory 43 2.4.2 Structural pluralism and journalism 43 vii 2.4.2.1 Smaller government is better government 45 2.4.2.2 The “privatised sector” 48 2.4.3 Neoliberalism and journalism 49 2.5 Summary 51 3. Battlefield Narratives: Theoretical and Methodological Frameworks 53 3.1 Theoretical Frames of Reference 54 3.1.1 Journalism studies 54 3.1.1.1 A political-science approach 54 3.1.1.2 Decoupling journalism and democracy theory 55 3.1.1.3 Retaining democracy theory 58 3.1.1.4 Neoliberalism and journalism 62 3.1.2 A social perspective 63 3.1.2.1 Habitus 66 3.1.2.2 Doxa 66 3.1.2.3 Applying field theory in data analysis 67 3.2 A Qualitative Methodology 67 3.2.1 Epistemology 67 3.2.2 Semi-structured interviews 69 3.2.2.1 Sample size and saturation 71 3.2.2.2 The sample 72 3.2.2.3 Data analysis 76 3.2.2.4 Pilot, coding and analysis 76 3.2.2.5 Initial codes 77 3.2.3 Document analysis – why Hansard? 80 3.2.3.1 Data 83 3.2.3.2 The OSA 1951 search 84 3.2.3.3 The OIA 1982 search 85 3.2.3.4 Data analysis 86 3.2.3.5 The OSA 1951 86 3.2.3.6 The OIA 1982 87 3.2.4 Case study 88 3.3 Research Questions 89 3.3.1 Primary research question 89 viii 3.3.2 Research sub-questions 89 3.4 Summary 89 4. What Were They Thinking? 91 4.1 The Official Information Act 92 4.1.1 Purposes of the Act 93 4.1.2 Principle of availability 94 4.1.3 Amendments and LGOIMA 95 4.2 The Official Secrets Act 1951 95 4.2.1 The speech from the throne 96 4.3 The Official Information Bill 99 4.3.1 The weight of the law 105 4.3.2 Opposition to aspects of the bill 107 4.3.3 Issues on the table 108 4.3.3.1 Schedule of agencies subject to the Act 109 4.3.3.2 Time limits 110 4.3.3.3 Labour’s proposed amendments 111 4.3.4 Implementation 113 4.3.4.1 The Information Authority 113 4.3 Conclusion 114 5. Retracted freedoms: Neoliberalism and FOI 117 5.1 Agency and Habitus: A Self-Adjusting Officialdom 121 5.1.1 Agents of defence 124 5.1.2 Habitus and doxa: State officials 127 5.1.3 Habitus and doxa: Public-interest journalists 127 5.2 Office of the Ombudsman: The Watchdog is Tied Up 128 5.2.1 A response from the Office of the Ombudsman 133 5.3 Smaller Government is Better Government 133 5.4 NZ Lotteries Commission – a Case Study 141 5.4.1. A data-journalism project 141 5.4.2 Case study conclusions 146 5.5 Conclusion 148 ix 6. Transparency Thwarted – The Undermining of FOI 151 6.1 A Darkening Sky 152 6.1.1 “Horror stories” 154 6.1.1.1 From the top 154 6.1.1.2 The political risk of transparency 155 6.1.1.3 A tactic of denial 156 6.1.1.4 “So glib and off-hand” 156 6.2 Motivations, Dispositions and Orientations 158 6.2.1 Dispositions towards the OIA 1982 158 6.2.2 Progressively unavailable 160 6.2.3 Standing up for FOI 162 6.2.4 Dispositions towards conventional narratives 162 6.2.4.1 Statements about officials 163 6.2.4.2 Statements about journalists 163 6.3 Power Games 165 6.3.1 Power Tools 167 6.3.2 “Fishing trips” as a response to powerlessness 168 6.4 Function and Dysfunction – a “Growing Gulf” 169 6.4.1 Public relations 172 6.5 Conclusions 174 7.
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