co 16 February 2009 Beverley AWakem Chief Ombudsman Office of the Ombudsmen P.O Box 10152 WELLINGTON 6143 Attn: Andrew McCaw Dear Chief Ombudsman RE: Ws8125, Introduction 1. Thank you for your letter of 28 November to my colleague Yannis Naumann regarding the above matter. Given the importance of this matter, it has been necessary for us to seek legal advice before replying and | have decided to take a direct interest in the matter. We have also consulted with Dr Brash before replying. | apologise that these steps have led to a delay in our response. 2. There are a number of matters we consider would benefit from clarification and further consideration prior to reaching a final decision. The Office of the Ombudsmen has previously sald that the input of the party who may be adversely affected by a report or recommendation is an ‘integral part’ of reaching the decision, We hope our response will be considered in that light, especially as it benefits from discussions we have had with Dr Don Brash, the former Leader of the Opposition, who is central to the matters at issue. ‘Your Provisional View 3 Im order to ensure we have understood your letter of 28 November correctly, 1 set out below our summaty of your position. if we have misunderstood your position, we would be mast grateful were you able to correct us and allow us the opportunity to provide further comment before finalising your opinion. Thank you in advance for your consideration of this request, Pages of 8a % ‘ur understanding of your provisional view is that the question of whether the Police file should be released (subject to any deletions of particular items of information within it) uns entirely on section 6(¢) of the Official Information Act 1982 (Act). That 1s, for the file to be withheld in its ‘entirety, Police National Headquarters (PNHQ) and the Ombudsman must be satisfied that making all or most of it available would be “‘tikely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right toa fair trial”. To elaborate further, based on the rule in Commissioner of Police v Ombudsman (x988] 1 NZLR 385, in order for the file to be withheld, PNHQ and the Ombudsman must be satisfied that there is a serious or real and substantial risk to the maintenance of the law, including the prevention, Investigation, and detection of offences, and the right to @ fair trial, which might well eventuate. Furthermore the risks must be of sufficient seriousness to outweigh the purposes of the Act, contained in section 4, favouring disclosure of information. We also note that, according to the Practice Guidelines of the Office of the Ombudsmen, Parliament intended section 6(¢) to apply to situations where there isa risk to such things as: a) therright to a fair trial ofa defendant charged with rape; b) Police details of an individual's “diversion”; and the security arrangements for the APEC leaders. Therefore, for PNHO's view and your provisional view in relation to the Potice file to be consistent with the Act, our understanding is that you must believe there isa serious or real and substantial risk to the maintenance of {aw, which might well eventuate should the Police file be released (subject to any deletions of particular items of information within iD. We also assume that you must believe the risks are of comparable importance to the examples given in the Practice Guidelines, so as to outwelgh the purposes of the Act contained in section 4. We would appreciate your confirmation that our understanding of your position when you formed Your provisional view is correct. {Im considering what these serious or real and substantial risks that may well eventuate are, we take it from your letter that the risks you perceive do not relate to the prevention of offences, nor tothe right toa fair trial, on the grounds that you do not mention these matters, but that you are solely concemed with, as you put it, ‘prejudice [to the maintenance of the law by compromising the criminal investigation”. Finally, we assume that in order to have formed the view that the criminal investigation is at tisk of bring compromised, it is necessary for you to Page 201810. hhave concluded that the investigation is in some sense still open and active, despite PNHQ having announced to the public that it has been “tlased”, and despite PNHQ continuing to maintain that itis “Inactive” Presumably you have reached this conclusion based on information you have received from PNHQ, which is itself too sensitive to elaborate on furtherin your letter. ‘As discussed above, we would be grateful were you able to correct any errors we have made in paragraphs 4-9 above, because it is based on this analysis of your letter that we make the comments below. Comments, 1 12. 3. ur first concern is how rigorously the legislative tests in regard to s 6(0) have been applied in this case. inthe Practice Guidelines its stated: It is not sufficient to simply assert that disclosure of the information will have a prejudicial effect. The public sector agency must be able to identify, with sufficient particularity, the nature of the prejudicial effect and ‘explain how such prejudice will occur in order to meet the tests for withholding in section 6, ‘Our concern is that sufficient consideration has not been devoted to precisely how the information requested would prejudice the protected interest - namely, the maintenance of the law. A number of questions are set out for consideration in the Practice Guidelines and we do not feel that ‘your provisional response has addressed these questions sufficiently. A further concern is whether or not the investigation has in fact been closed and whether or not PNHQ is being dishonest when it says the case is still in some sense open. This concem has grown as a result of our discussions with Dr Brash, the primary victim of the alleged crime and the person who laid the complaint with the Police, and who has read and checked this letter for accuracy against his own recollections. We can inform you that two days prior to issuing a media release titled “Police close email investigation”, Detective Inspector Harry Quinn sent an email to Dr Brash asking for comment on the draft media telease. This email is attached for your records. Detective Inspector Quinn states in his email that “whilst i wil undoubtedly draw media attention, | have tried to ‘make the release as benign as possible”. Added to the fact that the electronic version of the draft release reveals that it had been edited three times before being sent to Dr Brash, the only reasonable conclusion is that HHO took extraordinary care over the wording of the media release, and that there was never intended to be any doubt that the investigation was closed. Page 30f8