Parliament's privileges committee has slated as "unacceptable" a prime ministerial inquiry being handed private information, including a journalist's records, despite having no formal powers to demand it.
In its report to Parliament today, the committee slated the failure of those handling the information to consider the role of MPs, and the important role particular groups such as journalists might play "in our democracy" was worrying.
"That such an intrusion has been allowed to occur does not reflect well on the agencies responsible," the report said.
The privileges committee was asked to investigate by the Speaker David Carter after it was revealed emails, phone and swipe-card records belonging to Fairfax Media journalist Andrea Vance and MP Peter Dunne were handed to the so-called Henry inquiry as part of its investigation into a leaked report.
The leaked report, published by Fairfax Media, revealed potentially illegal spying by the Government Communications Security Bureau (GCSB).
Headed by former top public servant David Henry, the inquiry said it had ruled out all possible sources of the leak except Dunne, but said it needed full access to his emails to rule him in or out, which Dunne refused.
It later emerged however that both Dunne's and Vance's emails had been inadvertently provided to the inquiry and that email and phone metadata had been handed over, as well as their swipe-card records.
The fallout claimed the head of Parliamentary Services general manager Geoff Thorn, who resigned, and Department of Prime Minister and Cabinet chief executive Andrew Kibblewhite also offered his resignation, which Prime Minister John Key refused to accept.
Dunne had previously resigned from cabinet over his refusal to hand over records to the inquiry. He denied he had leaked the GCSB report.
The Privileges Committee said in its report, the Henry inquiry had been provided with a large amount of information including:
* Records of email traffic between Vance and relevant ministers and staff
* The content of some of the emails indicated by the metadata records, logs of phone calls made and received on certain landlines in the precinct and on mobile phones belonging to ministers and their staff.
* Security records relating to the use of swipe cards within the parliamentary precinct.
For much of the information relating to Vance and Dunne, their consent was never sought, the committee said.
"In other cases, consent was sought but not given, but the information was provided to the inquiry regardless," it said.
"In addition, one set of data was given twice to the inquiry, even though it had not been requested."
In its report, the committee said it had concerns about the way the Henry inquiry operated in relation to its requests for information from the Parliamentary Service.
It was critical of his failure to seek information through other means, such as the Official Information Act.
"It is clear, from the evidence we heard, that the inquiry's persistent pressure on the Parliamentary Service and approaches to third-tier and more junior staff had a part to play in the releases which resulted," it said.
"On at least one occasion, direction given by Mr Thorn seems to have been subjected by subsequent approaches from the inquiry to lower-level service staff."
In his evidence, Thorn had noted a particular occasion where he clearly instructed that email content would not be released without the manager's specific authorisation, which it appeared the Henry inquiry attempted to circumvent.
The committee agreed with Thorn's concerns that his decisions were undermined because of the "continual, extensive interaction between the inquiry team and his staff over a lengthy period".
The committee also noted that the inquiry, commissioned by the Department of Prime Minister and Cabinet and the GCSB operated with "very little oversight".
It is critical of the way Henry used that licence.
It was not unusual to expect someone of his calibre "to pay particular attention to the particular circumstances and the complexity of the environment in which the inquiry was operating when determining the limits of the information they might request and in tailoring their approach to making the necessary requests".
The committee concluded that failures on many levels had resulted in the actions forcing its investigation.
"We find it unacceptable that an inquiry, lacking formal powers to control the production of information, into an executive-information leak, was so readily given parliamentary information, including information about a journalist, without the direct involvement of [MPs] or the Speaker," it said.
"That such an intrusion has been allowed to occur does not reflect well on the agencies responsible."
It was also concerned at the inquiry's lack of regard for the roles of the people concerned.
"The failure to consider the complex role of members of Parliament in a representative democracy, where all members, including Cabinet ministers have distinct roles in relation to the House, their constituents and their parties, is concerning."
The lack of thought about the rights attached to the important role groups such as journalists might play in our democracy were similarly worrying.
"The media has a key role in ensuring Parliament remains transparent and accountable; their reports to the public on matters of public interest help to maintain the integrity of all our key constitutional branches," the committee said.
"The specific protections found within the Evidence Act for journalists and their sources are a legislative acknowledgement of this vital role."
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