Democracy Briefing: Off the record, off the hook

“No company should be above the law and no government should be allowed to close the courthouse doors on ordinary people.”

Mike Smith said that this week as Parliament passed the first reading of legislation specifically designed to kill his court case. Smith has been pursuing Fonterra, Z Energy and other major emitters through the courts for climate damage for seven years. The Supreme Court had allowed the case to proceed. Then the Government moved to wipe it out. And this week we learned, officially and in detail, just how they did it.

The Chief Ombudsman John Allen released his report on Wednesday. It is written in the usual bloodless language of official Wellington. But strip away the restraint and the finding is brutal: the Prime Minister’s Office failed to release documents it should have released. The documents, prepared by Fonterra and Z Energy, proposed a specific two-sentence amendment to the Climate Change Response Act. That amendment appeared, almost word for word, in the Government’s legislation. And none of it was disclosed in an Official Information Act response, because most of it never made it onto the official record at all.

The Fonterra briefing was hand-delivered in hard copy and also sent to a personal Gmail account. A second document, from Z Energy, followed. None of it was filed correctly. When an OIA request arrived specifically seeking records of any meetings or communications regarding the case, the person who had received those documents was consulted on the response, and still didn’t produce them.

The Ombudsman found this “unreasonable.” He said he found it “surprising” that the former chief policy adviser, Matt Burgess, had “no recollection” of what he had done with documents relating to “a prominent issue” provided by “high profile companies,” whose “wording for the suggested legislative change was ultimately reflected in the proposed changes.” He has referred the matter to the Chief Archivist. He expects follow-up.

The Prime Minister accepted all the findings. He said it was a “fair report.” He reiterated that Burgess “no longer works for us.” He claimed “It’s a good teachable moment, to remind staff of their obligations.” And he insisted he had seen no widespread evidence of personal email use among his staff.

That is nowhere near good enough.

The Gmail problem is bigger than one inbox

Gmail is not just a quirky workaround for busy ministers and staffers. In this case it was the side door through which corporate lobbying material entered the Prime Minister’s Office and then failed to appear when the public went looking for it. And that material subsequently disappeared from the official record when someone came looking for it.

Maybe it was innocent. Maybe it was not. But the defence that this was some bizarre one-off now looks very thin.

About a year ago I wrote about Erica Stanford’s systematic use of her personal Gmail for ministerial business, including the sending of pre-Budget documents (Why Erica Stanford’s Gmail use matters). At the time, Nicola Willis and Chris Bishop admitted they had also used personal email.

Then Act MP Simon Court’s office received lobbying material from Beef+Lamb NZ on a staffer’s private account. Green co-leader Chloe Swarbrick put it plainly: “I think a one-off you could say is a problem, but when we have two very clear examples now of private emails being used to communicate with lobbyists we’re starting to see a bit of a pattern.”

At some point, “pattern” becomes too polite a word.

Danyl McLauchlan’s analysis in the Listener last month goes further than most people in Wellington will say on the record. “In reality,” he writes, “everyone in politics and the public sector routinely routes information via their Gmail accounts, or apps such as Signal and WhatsApp, deliberately avoiding any transparency or oversight, knowing the chances of being caught are close to zero. And even if you are found out there are effectively no legal consequences for failing to comply with the OIA.”

McLauchlan may be overstating the universality of it. “Everyone” is a big word. But anyone who has spent time around Wellington politics will recognise the behaviour he is describing. The question is not whether every ministerial office does it. The question is why the system makes it so easy.

Luxon says he’s seen no widespread evidence of this in his own office. His chief policy adviser got a corporate lobbying document sent to his Gmail. His education minister used hers for pre-Budget documents. One of his parliamentary undersecretaries had lobbying material arrive in a staffer’s private account. So, what would widespread evidence look like?

The hard copy detail

Then there is the hard copy itself. The original documents were hand-delivered on paper.

A printed page does not leave much of a trail. It does not turn up in an email search. It does not sit neatly in a document-management system waiting for an OIA adviser to find it. A hard-copy briefing, hand-delivered to the right person, is almost designed to disappear unless someone deliberately logs it. Add a private Gmail account and the problem is no longer accidental-looking. It starts to look like a method.

The Ombudsman didn’t find deliberate concealment. He said he found no evidence that “contradicts” Burgess’s account that there was no deliberate decision to exclude the documents. But he also said he found it “surprising.” That word carries more than it seems to. It is the language of a regulator who suspects more than he can prove.

Audrey Young, who has been tracking this story as carefully as anyone, was blunter in her Herald column: “It might have been believable that one document handed to the PM’s office might be forgotten, not recorded or mislaid. But to have it happen twice suggests it was deliberate. And that suggests it is not an office that respects basic requirements of transparency under law.”

The ODT editorial today (“Putting it right counts”) took a different line. More measured: “A mistake has been made and it has been owned up to. The Prime Minister’s Office must now demonstrate that the suspicions of the Opposition that something is rotten in the state of Denmark are misguided.”

That’s a fair-minded position, and one would like to share it. What makes it hard is the question the ODT also raised: how many other staff might have had no training or guidance on file management? If the then-chief policy adviser at the heart of the nation’s executive government told the Ombudsman he didn’t recall receiving any training from the Department of Internal Affairs on how to manage official files, then what does that say about everyone else?

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