Request for NZSIS files concerning two NZ scholars
Writer sought NZSIS files on two individuals—Refused under s 6—bulk of information had been provided by overseas authorities under strict confidentiality agreements—various agencies consulted—some consented to release whereas others did not—complainant agreed to contact overseas agencies directly—ss 6(a) and 6(b) applied—release contrary to agreement would compromise quality and supply of similar information in future which would prejudice NZ’s security—some information released with identifiers deleted
A writer was researching a book about a group of New Zealand Rhodes Scholars who went to Oxford in the 1930s and subsequently distinguished themselves in the wars in Europe and the Near East. During the course of his research, he came upon two New Zealand scholars who had been accused of espionage: person A and person B. ‘A’ had been accused of being a Soviet agent and ‘B’ had been accused of providing false New Zealand passports to American spies.
The writer had already perused declassified Australian, Czech Republic and American intelligence files on the men and approached the Prime Minister requesting copies of all relevant intelligence information held by New Zealand concerning the two men. When making his request, the writer told the Prime Minister that he understood the information would still be embargoed. However, given that the events of which the two men stood accused happened over half a century ago and overseas files on them had been decommissioned for some years, the writer asked the Prime Minister whether the New Zealand material might also be declassified and, if so, he requested that he be given an opportunity to view this material.
In response, the writer was advised that papers about the security issues concerning the two men were held by the New Zealand Security Intelligence Service (NZSIS). The NZSIS had reviewed these records in 1999 to see whether they could be declassified for public access. At that time, the NZSIS decided that, despite the passage of time, the bulk of the material was still sensitive for security and privacy reasons and the records should therefore remain classified. The NZSIS had reconsidered this issue as a result of the writer’s request in 2001 but remained of the view that the information should be withheld. Therefore, the writer was advised that his request was refused under sections 6(a), 6(b) and 9(2)(a) of the OIA.
The writer then wrote to the Chief Ombudsman requesting he investigate and review this decision.
After viewing the information, the Chief Ombudsman noted that the information which the NZSIS considered sensitive comprised:
information received from various overseas intelligence agencies;
responses to enquiries by various overseas intelligence agencies about the two men;
notes and interviews and reports derived from those agencies; and
information from which the subject of intelligence service enquiries may be inferred.
The NZSIS explained that it is an information gathering and analysing agency. In some cases, it gets information from other agencies, here or overseas. In other cases, it relies on the willing co-operation of members of the public. The NZSIS has no coercive powers.
The NZSIS said overseas agencies provide their material on a strictly confidential basis and tend to be somewhat unmoved by the fact that New Zealand happens to have official information legislation. The NZSIS confirmed that strict rules apply within the intelligence community to information supplied by one agency to another, which essentially limits the manner in which the information may be used within government circles and absolutely bars wider disclosure. If information is disclosed with disregard to these rules, the NZSIS advised that overseas intelligence agencies would no longer trust the security of information held by the NZSIS, and this would compromise the supply and quality of similar information in the future. The NZSIS said it greatly benefits from its liaison with overseas agencies and, if such a loss of trust were to occur, its ability to perform its functions would be seriously affected. It said ‘the importance of avoiding any suggestion that it cannot be totally relied on to protect information so provided cannot be overstated’.
In the case of locally gained information, the NZSIS advised that the smallness of our population is a factor which creates problems less likely to arise in larger countries. Apart from interrelationships, there may be a very small group of people who could be privy to certain information, with the consequence that even if obvious identifiers contained in the information are deleted, it can be a relatively simple matter to identify a source if information is released.
The Chief Ombudsman considered these submissions. If the events involving ‘A’ and ‘B’ were in any real way current, the Chief Ombudsman considered section 6(a) would be likely to apply. However, given:
the two men had been dead for some years;
the events in which they were involved formed part of a remarkable period of history spanning the rise of fascism in the 1930’s to the collapse of Russian communism in the last decade;
much had already been written about the era and the men’s activities; and
certain overseas intelligence agencies had declassified relevant material on the men for 8 to 15 years;
the Chief Ombudsman had difficulty accepting the submission that the continued withholding of the information was necessary on the grounds of comity between intelligence agencies. If express permission was required from certain agencies, the Chief Ombudsman commented that it would be difficult to see on what basis it could be entirely refused.
In response, the NZSIS commented that the fact that the complainant had received information from other agencies did not necessarily mean that all information held by these agencies had been made publicly available. It advised that some of the information at issue was sourced from the United Kingdom for ‘B’, and both the United Kingdom and Australia for ‘A’. The NZSIS had consulted the relevant agencies and advised the Chief Ombudsman that the British authorities were unwilling to depart from their standard 50-year and 100-year release periods, whereas the Australian authorities had a more flexible approach. The NZSIS suggested that the complainant should be advised of this and contact both London and Canberra directly for the information they held. The complainant agreed to do this.
Meanwhile, the NZSIS agreed to review its files to see if it could identify any other information that could be released without prejudicing the entrusting of information on a basis of confidence. As a result, it identified a quantity of newspaper cuttings and some information gathered prior to 1952 regarding ‘B’ that it was willing to release subject only to the agreement of another agency which it later received. Further, after receiving a substantial measure of agreement from various relevant agencies, the NZSIS also agreed to release the bulk of the material relating to ‘A’. Some deletions were necessary, largely to protect the sources of information.
However, the NZSIS maintained that one item in particular should continue to be withheld in its entirety, namely a statement it had received in 1970 and which was made by an individual concerning ‘A’s’ activities. It said it was concerned that release of this statement would breach the basis of the confidentiality on which the interview took place, which could then lead to members of the public not trusting the NZSIS’s willingness or ability to maintain undertakings of confidentiality. As a result, the NZSIS’s ability to obtain information essential to security in the future would be impaired, which would then prejudice New Zealand’s security.
However, the OIA does not provide for blanket withholding or withholding on a class of documents basis simply because an agency says the information is confidential. Certain specified criteria must be established. The concerns which the NZSIS had put forward concerning release of the statement seemed to relate to section 6(a). However, this provision will apply only if the making available of the information ‘would be likely’ to prejudice the security of New Zealand. Cooke P in Commissioner of Police v Ombudsman stated that ‘would be likely’ is the same test as in criminal cases, namely ‘a serious or real and substantial risk…, a risk that might well eventuate’.
The Chief Ombudsman noted that the statement was made in 1970 regarding ‘A’ by a person now deceased and presented a somewhat different aspect of him than some other material to which the complainant may have had access. The statement did not say that the interviewee requested confidentiality. In fact, the interviewee indicated that confidentiality was not important to him and he had deliberately made his views publicly known. The Chief Ombudsman also observed that identifying information could be deleted from the statement, as could information that reveals part of the NZSIS methodology.
The Chief Ombudsman formed the view that, notwithstanding the passage of time, good reason existed for withholding the information about ‘B’s’ alleged involvement in the issuing of passports to American spies. However, the NZSIS agreed to release to the complainant a brief statement relating to ‘B’ and the question of the passports, along with copies of the newspaper material it had on file.
Further, after receiving a substantial measure of agreement from various relevant agencies, the NZSIS also released the bulk of the material relating to ‘A’ with some deletions, which were made largely to protect the sources of information. However, the Chief Ombudsman accepted that certain British generated material could be withheld under section 6(b) after the British authorities declined to confirm whether release would harm its relationship with the NZSIS.
With regard to the remaining statement concerning ‘A’, the Chief Ombudsman was not persuaded that making it available, albeit with deletions, ‘would be likely’ to result in the prejudice against which section 6(a) is intended to protect. The NZSIS agreed to release a summary of the statement without the identification of the interviewee. The complainant accepted the summary and the Chief Ombudsman concluded his enquiries.
The NZSIS also submitted that the fact the information was generated or provided in 1970 when the Official Secrets Act was in force indicates that all parties would have passed and received information on the understanding of confidentiality, even if that was not specifically stated in the record. However, the Chief Ombudsman noted that the Official Secrets Act was repealed without any saving provision for the NZSIS or any other agencies, such as the Police or Customs, which might be holding confidential information. In any event, if there had been some manifestation of a desire for confidentiality on the part of the interviewee, the Chief Ombudsman advised that this is a matter he would have considered.
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.
  1 NZLR 385