Provision of information about Operation Burnham to the Ombudsman

Self-initiated investigation by Ombudsman into allegations Ombudsman was misled by NZDF in previous OIA investigation relating to information about Operation Burnham—additional relevant information identified and released in Burnham Inquiry—Ombudsman of the opinion NZDF acted unreasonably as a summary released under the OIA was incomplete, the Ombudsman was not provided with access to all relevant information, and there were poor record keeping practices at NZDF—Ombudsman did not form opinion he was wilfully misled by NZDF — No recommendations made as a programme to improve information management systems and practices underway at NZDF

Background

In 2018 the Chief Ombudsman conducted an ‘omnibus’ OIA investigation into complaints from various requesters about the refusal of the New Zealand Defence Force (NZDF) to release information about Operation Burnham. The information requests were wide-ranging, under the broad headings of:

• the rules of engagement in force at the time of the operation;

• the location of Operation Burnham; 

• post activity reports;

• video footage and photographs;

• International Security Assistance Force (ISAF) documents;

• information relied on to explain whether there were civilian casualties; and

• identity of insurgents killed

Investigation

The Ombudsman decided to investigate on his own motion under section 13(3) of the Ombudsmen Act 1975. The investigation centred on whether he was misled in the earlier OIA investigation into NZDF’s refusal to release information on Operation Burnham. The Ombudsman identified specific areas to be considered in the investigation as:

• the accuracy of the summary of Operation Burnham events prepared by NZDF during the OIA investigation;
• whether NZDF omitted to provide the Ombudsman with access to all information relevant to the OIA requests; and
• NZDF’s advice to the Ombudsman regarding the harm that would result from release of the information.

During the investigation, the Ombudsman considered the findings of the Burnham Inquiry and relevant information and comments provided by NZDF, and conducted interviews with key NZDF officials. The interviews included consideration of briefs of evidence from each of these officials.

Outcome

The Ombudsman formed the opinion that NZDF acted unreasonably in relation to the earlier OIA investigation:

• as the summary of Operation Burnham that was publicly released was incomplete, and significantly underplayed the nature and scope of Operation Burnham;
• in omitting to provide the Ombudsman with access to all information relevant to the OIA requests; and
• as NZDF’s poor record keeping practices and processes for retrieving information in responding to OIA requests resulted in relevant information not being made available during the OIA investigation.

However, the Ombudsman did not form an opinion that NZDF acted unreasonably in its advice as to the anticipated harm with release, and did not form an opinion that he was wilfully misled by NZDF.

Where an Ombudsman forms the opinion that an agency has acted unreasonably, the Ombudsman can make any recommendations to the agency they think fit (section 22(3) Ombudsmen Act). During the investigation, the NZDF provided detailed information about work underway to improve its information management systems and practices, many of which arise from the recommendations of the Expert Review Group.

The Ombudsman was assured there is a significant programme of work underway and was satisfied this will help to ensure there is not a repeat of the matters outlined above. In this context, the Ombudsman did not consider it necessary to make any formal recommendations.

However, the Ombudsman requested:

• a further update in six months on progress NZDF has made to give effect to the recommendations of the Expert Review Group; and
• that NZDF give consideration to utilising the Ombudsman’s ‘OIA self-assessment tool’ and implementing any improvements and changes which it highlights.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.