Thursday, June 27, 2019

What are they trying to hide?

When the NZDF was asked to release US information on Operation Burnham which would have revealed how the villagers died, they refused, claiming that the US objected. So, Nicky Hager and Deborah Manning requested it in the US, under that country's Freedom of Information Act. Unlike New Zealand, the FOIA is enforced through the courts, so when the US refused, they took the government to court. And they won:

The information will be of interest to the Operation Burnham inquiry, which is inspecting allegations made in Hit & Run that Special Air Service troop killed six civilians and injured 15 in a 2010 raid.

Hager said the New Zealand Defence Force had opposed the evidence being obtained, saying it could not be released to the pub[l]ic.

But he said it was provided "promptly and without fuss" by the US military after a freedom of information court case - similar to New Zealand's Official Information Act.

In a statement, he said: "Secret evidence has been a huge obstacle in the current government inquiry into Operation Burnham."

"The US court decision sets a precedent for New Zealand freedom of information as it shows that what was declared impossible by NZDF and the Ombudsman has turned out to be possible as a relatively routine release of public information in the United States."

Part of the problem is that the Ombudsman is simply unwilling to thoroughly investigate "national security" claims, because the law does not require them to be balanced against the public interest. So if NZDF says "a foreign country gave this to us and they would object to its release", that's it, its secret, no saving throw - even if that country would be forced to release it themselves if requested.

The lesson in this is that the "national security" clauses in our Official Information Act are broken, and allow agencies to hide too much. They need immediate reform. And the obvious one is to introduce a public interest test, requiring the interest in secrecy to be balanced against the public interest in release, as there is for other withholding grounds. The way legal advice is handled shows it is perfectly possible for the Act to accommodate varying strengths of interest in withholding and balance them appropriately with the public interest in transparency and accountability that comes from release. And there's no reason - other than the reflex, authoritarian secrecy of the defence establishment - that we can't do this for s6 withholding grounds as well.

(Hager and Manning will release the information tomorrow. It will be interesting to see what it reveals, and what NZDF has been desperately trying to hide).