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Investigation into SSC conduct of MFAT leaks inquiry Legislation Ombudsmen Act 1975, ss 13,22 State Sector Act 1988, ss 4A, 6, 7, 8, 23 Agency State Services Commission Complaint about Inquiry and report into unauthorised disclosure of Ministry of Foreign Affairs and Trade information Ombudsman Professor Ron Paterson Case number 374155 Date June 2016 Contents Summary______________________________________________________________ 3 Relevant background ____________________________________________________ 4 Introduction _________________________________________________________________ 4 Consultation on proposed changes at MFAT ________________________________________ 5 Publicity and leaks about the proposed changes ___________________________________ 5 Further leaks _______________________________________________________________ 6 Instructions regarding staff feedback and communications __________________________ 6 Further publicity and leaks ____________________________________________________ 7 The inquiry___________________________________________________________________ 7 First opportunity to comment — December 2012 __________________________________ 9 Second opportunity to comment — April 2013 ___________________________________ 10 Third opportunity to comment — August/September 2013 _________________________ 10 Report of 15 October 2013 ___________________________________________________ 11 Final Report of 27 November 2013 ____________________________________________ 13 Complaint to Ombudsman and investigation ________________________________ 14 Ombudsman’s role _____________________________________________________ 15 Analysis and findings ___________________________________________________ 17 Revised scope of my investigation _______________________________________________ 17 Terms of reference ___________________________________________________________ 19 Discussion ________________________________________________________________ 19 Fair notice prior to interviews _____________________________________________________ 23 Disclosure of information regarding the applicable standards _________________________ 25 Opinion: June 2016 | Page 1 Office of the Ombudsman | Tari o te Kaitiaki Mana Tangata Discussion ________________________________________________________________ 25 Summary of material sent to Mr Leask and his QC _____________________________________ 27 Natural justice _______________________________________________________________ 29 Discussion ________________________________________________________________ 29 Evidential basis for the inquiry’s findings __________________________________________ 33 Discussion ________________________________________________________________ 33 Created a perception acceptable to leak ____________________________________________ 35 Breach of instructions for feedback and providing advice to Ministers _____________________ 37 Protecting personal legacy _______________________________________________________ 44 Supplied information to FSA and partners group ______________________________________ 46 Portrayal of email evidence ____________________________________________________ 47 Discussion ________________________________________________________________ 47 Private conversations between colleagues ___________________________________________ 48 Proportionality ______________________________________________________________ 48 Discussion ________________________________________________________________ 48 Singling out ___________________________________________________________________ 48 Similar actions to other Tier 3 managers ____________________________________________ 49 Treatment of actions by three other HOMs __________________________________________ 52 Decision to publish and identify _________________________________________________ 53 Discussion ________________________________________________________________ 53 Ombudsman’s opinion __________________________________________________ 56 Recommendations _____________________________________________________ 57 Appendix 1. Summary of grounds of complaint ______________________________ 58 Appendix 2. Relevant statutory provisions __________________________________ 60 Ombudsmen Act 1975_________________________________________________________ 60 State Sector Act 1988 _________________________________________________________ 61 Opinion: June 2016 | Page 2 Office of the Ombudsman | Tari o te Kaitiaki Mana Tangata Summary This investigation was triggered by a complaint about an inquiry by the State Services Commission (SSC), which culminated in the publication of the Report to the State Services Commissioner on the Investigation into the Possible Unauthorised Disclosure of Information Relating to the Ministry of Foreign Affairs and Trade (the Final Report). The State Services Commissioner, Iain Rennie, released the Final Report publicly on 12 December 2013. The complainant, Derek Leask, was a former New Zealand High Commissioner to the United Kingdom. He retired in November 2012, after more than 40 years’ service at the Ministry of Foreign Affairs and Trade (MFAT). Mr Leask was the subject of significant criticism in the Final Report. He complained to the Ombudsman that he had been treated unfairly. The State Services Commissioner had an important role in ensuring the integrity and trustworthiness of the public sector in the face of serious concerns over leaks of official information. Mr Rennie clearly needed to commence an inquiry into the leaks and to publicly report on its findings, given his broad statutory mandate under the State Services Act 1988. This review has identified numerous flaws in the inquiry, undertaken by Paula Rebstock on behalf of the Commissioner, in relation to Mr Leask. He was not responsible for the leaks that prompted the inquiry. Publication of a flawed report caused significant damage to Mr Leask’s reputation and resulted in serious, unwarranted and adverse professional, personal and financial consequences for him. In relation to Mr Leask, SSC acted unreasonably during the inquiry and in the findings and publication of the Final Report. In particular: the findings in relation to Mr Leask in the Final Report exceeded the Terms of Reference for the inquiry; Mr Leask was not given fair notice prior to his interviews that his conduct (apart from any possible culpability for the leaks in question) would be examined; insufficient material was provided to Mr Leask in advance of the Final Report about the applicable standards against which his behaviour was being measured; in several respects Mr Leask was not treated fairly, in accordance with the principles of natural justice; the evidence relied upon by the inquiry did not reasonably support some of the criticisms made about Mr Leask in the Final Report and some highly relevant evidence was not properly addressed; the manner in which the evidence was portrayed in the Final Report did not fairly represent Mr Leask’s actions; the manner in which Mr Leask’s actions were addressed in the Final Report was disproportionate when compared with the comments made about the actions of other MFAT staff, including a number of Tier 3 managers; Opinion: June 2016 | Page 3 Office of the Ombudsman | Tari o te Kaitiaki Mana Tangata the publication of the Final Report, in a manner that identified Mr Leask and contained unfair criticisms of him, was unjust; and the Commissioner’s public statement about Mr Leask on 12 December 2013 was unreasonable. The Ombudsman has issued formal recommendations that SSC offer a public apology to Mr Leask, reimburse him for actual and reasonable expenses, compensate him for harm to reputation and review its guidance for future inquiries under the State Services Act 1988, in light of this report. Relevant background Introduction 1. The facts that prompted the inquiry were: a. On 2 May 2012, the Labour Party Spokesperson for Foreign Affairs and Trade, Hon Phil Goff MP, made references in Parliament that used content from papers before a Cabinet Committee about MFAT’s change programme. Three papers on this topic had been finalised on 26 April 2012 and issued by the Cabinet Office on 30 April 2012, namely: i. Ministry of Foreign Affairs and Trade: Change Programme; ii. MFAT: Global Footprint: European Posts; and iii. Ministry of Foreign Affairs and Trade: Forecast Financial Position. The papers were due to be considered by a Cabinet Committee on 2 May 2012. b. The statements made in the House by Mr Goff on 2 May 2012 followed a succession of leaks over several months of information held by MFAT about the change programme. The leaks included but were not limited to: i. information containing details of the Ministry Business Model (MBM) and the Ministry Remuneration Review was referred to in The Dominion Post article of 21 February 2012 quoted by Mr Goff. He also tabled a page of the MBM in Parliament on 6 March 2012; ii. the content of the formal messages from three HOMs, dated 2, 3 and 5 March 2012 were disclosed by Mr Goff on 6 and 8 March 2012, and by the Labour Party to The New Zealand Herald on 9 March 2012; iii. information from a MFAT spreadsheet prepared for the Change Programme Office showing remuneration and allowances for offshore posts was disclosed in The Dominion Post on 24 March 2012 and 27 March 2012; iv. a letter signed by 49 HOMs to the Secretary, dated 15 March 2012, was tabled in Parliament by Mr Goff on 28 March 2012; Opinion: June 2016 | Page 4 Office of the Ombudsman | Tari o te Kaitiaki Mana Tangata v. the content of the

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