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:
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the findings in relation to Mr Leask in the Final Report exceeded the Terms of Reference for the inquiry;
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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;
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insufficient material was provided to Mr Leask in advance of the Final Report about the applicable standards against which his behaviour was being measured;
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in several respects Mr Leask was not treated fairly, in accordance with the principles of natural justice;
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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;
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the manner in which the evidence was portrayed in the Final Report did not fairly represent Mr Leask’s actions;
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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;
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the publication of the Final Report, in a manner that identified Mr Leask and contained unfair criticisms of him, was unjust; and
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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.
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