How a leak turned into a raging flood
MARTIN VAN BEYNEN
The David Henry inquiry has left a tornado-like trail of carnage.
Geoff Thorn, general manager of the Parliamentary Service and a man of steadfast reputation, has lost his job. Peter Dunne, leader of UnitedFuture, has lost his ministerial posts. The chief executive of the Department of the Prime Minister and Cabinet, Andrew Kibblewhite, is lucky to still have his job.
The Speaker, David Carter, appeared ineffectual and isolated after being misled by the staff who answered to him.
Inquiry head David Henry ended up looking like a malevolent inquisitor and the Prime Minister's chief of staff, Wayne Eagleson, like the demonic Malcolm Tucker from the political satire, The Thick of It.
More fundamentally the inquiry exposed a woeful lack of respect for the constitutional rules that protect journalists, in their watchdog role, from Government.
The old certainities suddenly looked decidedly shaky.
Prime Minister John Key and Kibblewhite were in China on April 9, when Fairfax's Dominion Post and its other papers splashed one of the scoops of the year across their front pages.
Press Gallery journalist Andrea Vance had obtained the much-awaited report by Cabinet Secretary Rebecca Kitteridge on the Government Communications Security Bureau (GCSB) before the report was to be officially released.
It disclosed the bureau may have snooped unlawfully on 85 New Zealanders between 2003 and 2012.
Key, who was worried by accusations he was the leaker, agreed Kibblewhite and the director of the GCSB, Ian Fletcher, should commission an independent inquiry into how Vance got the report.
They chose David Henry, a former Commissioner of Inland Revenue, Chief Electoral Officer and commissioner into the Pike River mining disaster to lead it. It would be short and sharp with a reporting date of May 31.
Henry was provided with an assistant/analyst in Isaac Holliss who was seconded from the Department of the Prime Minister and Cabinet which also supplied the inquiry with one of its offices, administrative support and a secure depository for its computer records.
The inquiry, when it was announced on April 15, must have seemed like an impossible assignment. A clever leaker leaves no tracks. The list of suspects was long and included the Prime Minister's department and the GCSB.
The inquiry had no power to demand information although it had friends in high places.
About 10 days after the inquiry was announced, Eagleson wrote to the senior private secretaries of the 12 ministers (10 National Cabinet ministers plus John Banks and Peter Dunne) who had received the report. He said John Key expected them and their staff to fully co-operate with the inquiry. This was emphasised to a number of parties over the coming month.
Henry believed he knew where to focus.
Due to the detail of Vance's story, which contained no material from the classified appendix, he had decided she must have had access only to the final report delivered by Kitteridge on March 22. Kitteridge had made some last-minute changes and these were reflected in Vance's copy. This allowed him to narrow the inquiry down to people who had the final report - the 12 ministers and their staff.
No electronic copies of the report were sent out and only 35 hard copies of the report were distributed. Henry asked for their return and got all but two, which had been shredded.
Dunne received his copy of the report, without the classified appendix, on March 27 and emailed Vance on the same day telling her he would be briefed on it.
Obviously the inquiry wanted to know who within the confined group had had contact with Vance between March 22 and April 9, the period in which Henry believed the leak took place.
Henry had already concluded April 8, the day before publication, was the most likely date the leak occurred.
He started with the trail a leaker would have left by using a copier within the parliamentary precincts and asked for the copy, print and scan records for the 12 ministers and specified staff.
It was Holliss' job to do the legwork on instructions from Henry. On April 30 he made his first formal approach to Parliamentary Service which, on its servers, held all the electronic records the inquiry needed. Thorn directed his staff not to release any information unless it had been cleared by the party concerned.
The inquiry did not worry itself too much about whether it was entitled to the information requested. Henry's position was the holders of the information had to decide if the information could be produced and whether authorisations were required.
"It was a matter for them to sort out," he says.
Another consideration which prompted little thought was the fact records relating to ministers would inevitably divulge information about who they had been in contact with, including journalists. Eagleson says it never occurred to him "that we were talking about any records that would have any relation to a journalist".
Holliss' initial approach to the Parliamentary Service was informal. Neither he nor Henry took the trouble to introduce themselves to Thorn or his deputy. Holliss instead emailed the service's information, communications and technology (ICT) manager, Mike Middlemiss. It was the beginning of a pattern of contact over the next month which saw Holliss deal directly with Middlemiss or Datacom staff working in the Parliamentary Service office. With requests flying in all directions, the situation was ripe for confusion.
As the inquiry progressed it gradually expanded the electronic records sought.
On May 8 Hollis emailed a broader request to Parliamentary Service, seeking the email logs for the 12 ministers (including Dunne) and their staff from March 22 to
April 9. He had also delivered the request to Janice Calvert, the general manager of the Ministerial and Secretarial Services (MaSS), a branch of the Department of Internal Affairs that looks after the Executive.
Calvert was also asked for cellphone billing records for the 12 ministers and their staff. Calvert appeared to have no qualms about releasing the metadata which she believed the Service held on MaSS's behalf but Thorn again insisted each minister should give consent.
After talking to Thorn, Calvert alerted Eagleson. In a following phone conversation, Thorn says Eagleson explained he had written to the Ministers' private secretaries to tell them of Key's expectations.
"The discussion proceeded on the basis of seeking an understanding of whether Ministers' acceptance of that position could be taken as indicative of their individual consent. "In the end I was satisified that it did."
The next crucial day in the saga was May 20, four days after the Parliamentary Service had emailed Holliss with the ministers' email metadata including Dunne's.
On May 20 Holliss went beyond the metadata and requested the content of all emails between five individuals and Vance between March 22 and April 9.
The request listed by date a total of 93 separate emails between Vance and Dunne that had been identified through email metadata.
Holliss also formally asked for all the call logs to specified phone extensions (ministers and staff) which showed contact with Vance's landline and cellphone numbers.
"Please note we do not want the call logs for the two numbers of interest [Vance's numbers] . . . that is outside the parameters of our inquiry," Holliss added.
Service staff referred Holliss' request for the email content to Thorn who in turn was "most concerned".
"I felt it important to contact Mr Eagleson and advise him . . . I did not consider his previous authorisation covered the matter. I contacted him by phone."
According to Thorn, Eagleson shared his concern about Dunne's email content and later told Parliamentary Service to approach Dunne for permission.
May 22 was notable for two main developments. The service emailed Holliss the content of the relevant emails including Dunne's in a zip file with five separate folders. Dunne had not given consent for the content of his emails to be released and the service soon realised its mistake and tried to contact Holliss to return the email.
Holliss was on leave that day so did not see the email or the requests to return it. Even if he had he would not have been able to open the email because its .pst format was incompatible with the system he was using in the Prime Minister's department.
Holliss deleted the email the next day.
By now Dunne had made his position clear. He told Eagleson through his chief of staff Rob Eaddy he was not prepared to disclose the content of the emails. Henry was informed and visited Dunne but couldn't change his mind. It was the first of seven meetings he would have with the UnitedFuture leader.
The inquiry had now been going for over a month and Henry was zeroing in on his main suspect.
The next step, and one that would lead to another controversy, was on May 27 when Holliss asked Middlemiss for building access logs for Vance and Dunne.
Dunne gave his permission but the service did not contact Vance to get her consent.
Thorn says he reasoned access to part of the Parliamentary precinct might have caused a security breach (the leak of information) and he did not want to "second-guess the security implications" so released Vance's information.
By now Dunne's attitude to the content of his emails was well known to the Prime Minister's Office and Kibblewhite.
Eagleson reported to Key that Dunne was not prepared to release the content of the 90-odd emails between him and Vance. Eagleson says it was the first discussion he had had with PM about "these matters".
"He reiterated to me his expectation that Dunne like all ministers comply fully."
Later that morning Eagleston again talked to Eaddy to "reinforce the PM's expectations". "Over the coming days Mr Eaddy and I had other discussions to this effect." The clock was now up to May 30 and Dunne, after the barrage of pressure from Eagleson and Henry, provided Henry with an edited version of his emails which later Henry discussed with him.
By then Henry had the access card records which led to questions about a possible meeting with Vance on April 8.
He knew Dunne was to meet Vance on the morning of April 8 for coffee although Dunne claimed the meeting had not taken place. Emails showed Vance was waiting to meet Dunne at 11.38am. Dunne left his office in Bowen House at 11.35am and returned at 12.27pm.
The end of the inquiry was now in sight although there was still time for more mistakes.
On May 31 the service sent Holliss two files, one of which was Vance's February to April phone log that Datacom had obligingly prepared the previous week.
Holliss emailed back that he had not requested Vance's phone log but it was not deleted from the server run by the Department of the Prime Minister and Cabinet until July 31.
Despite Holliss' advice he didn't want Vance's phone log, the service's chief information officer, who wasn't aware of Holliss' email, re-sent it on the afternoon of May 31.
On June 5 Henry submitted his report having received a call log of Dunne's landline calls only the day before. The day was also notable for comments in the house made by New Zealand First leader Winston Peters, who asked Key if he had spoken to Dunne about his phone records "and the one connection by dates of exclusive leaks shortly after those phone calls and other communications, that are a crime under the Crimes Act because the information is classified."
Peters appears to have been mistaken about the classified aspect of the report but clearly someone had been talking to him about information supplied to the inquiry.
In his report Henry identified three people who had access to the Kitteridge report prior to April 9 and who had contact with Vance. Two were public servants - one in GCSB and other in the Prime Minister's Office - whose contact with Vance was "entirely commensurate with their official duties". The third was Dunne.
"I have not obtained all the information I required from Mr Dunne. I advised him that I considered it necessary for the purpose of this inquiry to have access to the full text of 86 email exchanges between him and the reporter during the period 27 March to April 9 . . . In the absence of permission [Dunne's] I cannot take this matter further," Henry said.
The aftermath was not pretty. Dunne, who has always maintained neither he nor his staff leaked the report to Vance, resigned as Revenue Minister, two days after Henry's report was released.
In mid-July Thorn informed the Speaker the service had not delivered Vance's call log to the inquiry. Thorn had to go back to the Speaker on July 26 to correct himself and on July 31 he resigned. Carter apologised to Vance who says she expected her line to fall silent as the breaches came to light. "Thankfully it hasn't."
She is appalled information about the intrusions had to be "dragged" from all parties and is sceptical of the "cock-up" theory.
"I don't know who had access to my records. And I'm suspicious as to why on June 5, less than a week after the unauthorised release, Winston Peters was making some startling allegations about phone records in the House.
"However that is not all that has got me fizzing. What has got my goat is the casting aside of something us journalists hold very precious: press freedom . . . it has become rather obvious that this Government has a casual disregard for the media's true role as an independent watchdog," she wrote in an article.
Another head almost rolled. Kibblewhite had known since July 5 the Parliamentary Service had sent the inquiry the content of emails between Vance and Dunne but did not tell Key until a month later. He offered Key his resignation but Key declined.
Parliament's privileges select committee began an inquiry on August 31. In questioning Justice Minister Judith Collins described the agencies' attitude to releasing information as "contemptuous" of privacy rights. The committee's inquiry highlighted major deficiencies in the protocols, processes and thinking around the release of personal records held by the parliamentary agencies.
The Media Freedom Committee told the committee the release of Vance's emails, swipe card records and call log without her consent was "unprecedented" and "the ability to communicate in confidence with sources is absolutely fundamental to the media's core function of informing the public of what is really going on in the public sphere," it said in a submission.
The privileges committee is due to submit a report on the Vance incident and one on the general principles highlighted by it.
Parliament, despite its central place in our democracy, is a world apart. The Vance incident has drawn the curtains on how the various players who operate our democracy interact and how easily things can go wrong. It will serve as a warning in this surveillance age that lines must be drawn and respected.
- © Fairfax NZ News
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