Removal of NZSIS apology to Nicky Hager from website
New Zealand Council for Civil Liberties made this Official Information request to New Zealand Security Intelligence Service
The request was successful.
From: New Zealand Council for Civil Liberties
Dear New Zealand Security Intelligence Service,
This is an Official Information Act request.
In late November or early December 2022, the Service published a media statement regarding the settlement it had reached with Mr Nicky Hager, a journalist. The media statement was published at this URL:
https://www.nzsis.govt.nz/news/nzsis-med...
Trying to visit that page now results in a '404 - Page not found' response. No link to, or mention of, the statement can be found on the NZSIS website on the 'News' page (https://www.nzsis.govt.nz/news/) or for the category 'Media Releases' (https://www.nzsis.govt.nz/news/category/...).
Please provide:
1) a copy of the media statement issued by the NZSIS regarding the settlement it reached with Mr Hager; and
2) all advice and media planning information held on the publication of the media statement; and
3) all information held regarding the removal of the media statement from the NZSIS website.
Under section 16 of the OIA, our preference is to receive the information in a text searchable format (not image-only PDF), as attachments to an email sent to the address from which the Service received this request.
Under section 19(a)(ii) of the OIA, if the Service decides to withhold any information, please provide us with the grounds in support of the withholding reason cited in the decision, along with details of the public interest factors favouring disclosure that were considered by the Service when making its decision on the request.
Yours faithfully,
New Zealand Council for Civil Liberties
From: OIA Privacy
New Zealand Security Intelligence Service
Tēnā koe,
Thank you for your Official Information Act request.
We will endeavour to respond to your request as soon as possible and, in any event, no later than 20 working days after the day that your request was received, Wednesday 8 February 2023. If we are unable to respond to your request by then, we will notify you of an extension of that timeframe. Please note 25 December to 15 January are not considered working days under the Official Information Act 1982.
If you have any queries, please feel free to contact [NZSIS request email].
Ngā mihi,
NZSIS
-----Original Message-----
From: New Zealand Council for Civil Liberties <[FOI #21467 email]>
Sent: Tuesday, 20 December 2022 1:55 PM
To: OIA Privacy <[NZSIS request email]>
Subject: Official Information request - Removal of NZSIS apology to Nicky Hager from website
Dear New Zealand Security Intelligence Service,
This is an Official Information Act request.
In late November or early December 2022, the Service published a media statement regarding the settlement it had reached with Mr Nicky Hager, a journalist. The media statement was published at this URL:
https://www.nzsis.govt.nz/news/nzsis-med...
Trying to visit that page now results in a '404 - Page not found' response. No link to, or mention of, the statement can be found on the NZSIS website on the 'News' page (https://www.nzsis.govt.nz/news/) or for the category 'Media Releases' (https://www.nzsis.govt.nz/news/category/...).
Please provide:
1) a copy of the media statement issued by the NZSIS regarding the settlement it reached with Mr Hager; and
2) all advice and media planning information held on the publication of the media statement; and
3) all information held regarding the removal of the media statement from the NZSIS website.
Under section 16 of the OIA, our preference is to receive the information in a text searchable format (not image-only PDF), as attachments to an email sent to the address from which the Service received this request.
Under section 19(a)(ii) of the OIA, if the Service decides to withhold any information, please provide us with the grounds in support of the withholding reason cited in the decision, along with details of the public interest factors favouring disclosure that were considered by the Service when making its decision on the request.
Yours faithfully,
New Zealand Council for Civil Liberties
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Any classification markings must be adhered to. If you are not the intended recipient, you must not peruse, disclose, disseminate, copy or use the message in
any way. If you have received this message in error, please notify us immediately by return email and then destroy the original message.
The New Zealand Intelligence Community (NZIC) and the departments comprising the NZIC accepts no responsibility for changes to this e-mail, or to any attachments, after its transmission
from NZIC. This communication may be accessed or retained for information assurance purposes. Thank you.
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From: OIA Privacy
New Zealand Security Intelligence Service
Tēnā koe,
Please find attached a response from the Director-General.
Ngā mihi,
NZSIS
-----Original Message-----
From: New Zealand Council for Civil Liberties <[FOI #21467 email]>
Sent: Tuesday, 20 December 2022 1:55 PM
To: OIA Privacy <[NZSIS request email]>
Subject: Official Information request - Removal of NZSIS apology to Nicky Hager from website
Dear New Zealand Security Intelligence Service,
This is an Official Information Act request.
In late November or early December 2022, the Service published a media statement regarding the settlement it had reached with Mr Nicky Hager, a journalist. The media statement was published at this URL:
https://www.nzsis.govt.nz/news/nzsis-med...
Trying to visit that page now results in a '404 - Page not found' response. No link to, or mention of, the statement can be found on the NZSIS website on the 'News' page (https://www.nzsis.govt.nz/news/) or for the category 'Media Releases' (https://www.nzsis.govt.nz/news/category/...).
Please provide:
1) a copy of the media statement issued by the NZSIS regarding the settlement it reached with Mr Hager; and
2) all advice and media planning information held on the publication of the media statement; and
3) all information held regarding the removal of the media statement from the NZSIS website.
Under section 16 of the OIA, our preference is to receive the information in a text searchable format (not image-only PDF), as attachments to an email sent to the address from which the Service received this request.
Under section 19(a)(ii) of the OIA, if the Service decides to withhold any information, please provide us with the grounds in support of the withholding reason cited in the decision, along with details of the public interest factors favouring disclosure that were considered by the Service when making its decision on the request.
Yours faithfully,
New Zealand Council for Civil Liberties
-------------------------------------------------------------------
This is an Official Information request made via the FYI website.
Please use this email address for all replies to this request:
[FOI #21467 email]
Is [NZSIS request email] the wrong address for Official Information requests to New Zealand Security Intelligence Service? If so, please contact us using this form:
https://fyi.org.nz/change_request/new?bo...
Disclaimer: This message and any reply that you make will be published on the internet. Our privacy and copyright policies:
https://fyi.org.nz/help/officers
If you find this service useful as an Official Information officer, please ask your web manager to link to us from your organisation's OIA or LGOIMA page.
-------------------------------------------------------------------
This electronic message, together with any attachments, contains information that is provided in confidence and may be subject to legal privilege.
Any classification markings must be adhered to. If you are not the intended recipient, you must not peruse, disclose, disseminate, copy or use the message in
any way. If you have received this message in error, please notify us immediately by return email and then destroy the original message.
The New Zealand Intelligence Community (NZIC) and the departments comprising the NZIC accepts no responsibility for changes to this e-mail, or to any attachments, after its transmission
from NZIC. This communication may be accessed or retained for information assurance purposes. Thank you.
hide quoted sections
Connor C left an annotation ()
1. While the requester requested the public interest factors, these were not provided. Section 9(2)(h) relating to legal professional privilege is subject to the public interest test, so there ought to have been consideration given to the public interest for the withholding of the privileged information.
2. Section 6(a) is not subject to the public intetest test.
https://www.legislation.govt.nz/act/publ...
3. It would of helped if the requester had includedvthe public interest factors as part of their numbered list in their OIA request, so that it was really clear that those reasons needwd to be included in the response letter. Nonetheless NZSIS would of seen this further down the request.
4. It goes without saying NZSIS could of waived the privilege if they owned the privilege (e.g. as a result of the advice coming from in-house counsel). They could have chosen to release excerpts from the information, especially if it was in the public interest.
5. The press release that was removed from the NZSIS website can also be found at the following sites:
https://wellington.scoop.co.nz/?p=149204
https://web.archive.org/web/202212010241...
(Nick Hager's press release is also on Scoop.co.nz)
6. It would be interesting to know whether there was an agreement between Nicky Hager and NZSIS for the press release to remain published on the NZSIS website, and for how long.
7. The NZSIS press release was online for just 15 days before their General Counsel asked for it to be removed on the apparent basis "that the story has passed". Many stories pass but I doubt they are removed from the website so quickly. Without there being any other reason for its removal provided in the response, one is left wondering if the decision was more about reputational management by removing any mention of NZSIS' admission it had acted unlawfully in 2012.
8. NZSIS needs to be mindful that removing a public apology from its website after 15 days may be seen by Nicky Hager and the public as acting in bad faith. If there was no proper reason to remove it, then it should of remained. Newer press releases would of overtaken it over time in any case, thus the apology's prominence on the website would have naturally diminished.
Connor C left an annotation ()
Correction: removed in 14 days (not 15). Published 30 Nov 2022, and OIA response shows intended take down on 14 Dec 2022.
From: OIA Privacy
New Zealand Security Intelligence Service
Kia ora
Please see attached correspondence regarding your OIA request from the
Director-General.
Ngā mihi
NZSIS
--------------------------------------------------------------------------
This electronic message, together with any attachments, contains
information that is provided in confidence and may be subject to legal
privilege. Any classification markings must be adhered to. If you are not
the intended recipient, you must not peruse, disclose, disseminate, copy
or use the message in any way. If you have received this message in error,
please notify us immediately by return email and then destroy the original
message. The New Zealand Intelligence Community (NZIC) and the
departments comprising the NZIC accepts no responsibility for changes to
this e-mail, or to any attachments, after its transmission from NZIC. This
communication may be accessed or retained for information assurance
purposes. Thank you.
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Connor C left an annotation ()
1. The letter incorrectly refers to section 16(2)(c), when it should be section 16(2)(a). https://www.legislation.govt.nz/act/publ...
From: OIA Privacy
New Zealand Security Intelligence Service
Tēnā koe,
Following conversations with the Office of the Ombudsman, please find attached a text searchable copy of the response letter dated 30 January 2022.
Ngā mihi,
NZSIS
-----Original Message-----
From: OIA Privacy
Sent: Monday, 30 January 2023 11:36 AM
To: New Zealand Council for Civil Liberties <[FOI #21467 email]>
Subject: RE: Official Information request - Removal of NZSIS apology to Nicky Hager from website
Tēnā koe,
Please find attached a response from the Director-General.
Ngā mihi,
NZSIS
-----Original Message-----
From: New Zealand Council for Civil Liberties <[FOI #21467 email]>
Sent: Tuesday, 20 December 2022 1:55 PM
To: OIA Privacy <[NZSIS request email]>
Subject: Official Information request - Removal of NZSIS apology to Nicky Hager from website
Dear New Zealand Security Intelligence Service,
This is an Official Information Act request.
In late November or early December 2022, the Service published a media statement regarding the settlement it had reached with Mr Nicky Hager, a journalist. The media statement was published at this URL:
https://www.nzsis.govt.nz/news/nzsis-med...
Trying to visit that page now results in a '404 - Page not found' response. No link to, or mention of, the statement can be found on the NZSIS website on the 'News' page (https://www.nzsis.govt.nz/news/) or for the category 'Media Releases' (https://www.nzsis.govt.nz/news/category/...).
Please provide:
1) a copy of the media statement issued by the NZSIS regarding the settlement it reached with Mr Hager; and
2) all advice and media planning information held on the publication of the media statement; and
3) all information held regarding the removal of the media statement from the NZSIS website.
Under section 16 of the OIA, our preference is to receive the information in a text searchable format (not image-only PDF), as attachments to an email sent to the address from which the Service received this request.
Under section 19(a)(ii) of the OIA, if the Service decides to withhold any information, please provide us with the grounds in support of the withholding reason cited in the decision, along with details of the public interest factors favouring disclosure that were considered by the Service when making its decision on the request.
Yours faithfully,
New Zealand Council for Civil Liberties
-------------------------------------------------------------------
This is an Official Information request made via the FYI website.
Please use this email address for all replies to this request:
[FOI #21467 email]
Is [NZSIS request email] the wrong address for Official Information requests to New Zealand Security Intelligence Service? If so, please contact us using this form:
https://fyi.org.nz/change_request/new?bo...
Disclaimer: This message and any reply that you make will be published on the internet. Our privacy and copyright policies:
https://fyi.org.nz/help/officers
If you find this service useful as an Official Information officer, please ask your web manager to link to us from your organisation's OIA or LGOIMA page.
-------------------------------------------------------------------
This electronic message, together with any attachments, contains information that is provided in confidence and may be subject to legal privilege.
Any classification markings must be adhered to. If you are not the intended recipient, you must not peruse, disclose, disseminate, copy or use the message in
any way. If you have received this message in error, please notify us immediately by return email and then destroy the original message.
The New Zealand Intelligence Community (NZIC) and the departments comprising the NZIC accepts no responsibility for changes to this e-mail, or to any attachments, after its transmission
from NZIC. This communication may be accessed or retained for information assurance purposes. Thank you.
hide quoted sections
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New Zealand Council for Civil Liberties left an annotation ()
The NZSIS response to this request did not provide a copy of its apology to Mr Hager in text-searchable format as requested. So that the statement and apology can be found on the web more easily, the text of the statement and apology published on either 30 November or 1 December 2022 are pasted in below:
NZSIS media statement - settlement with Mr Hager regarding 2012 activity
In 2019 the Inspector-General of Intelligence and Security made findings that, in 2012, the New Zealand Security Intelligence Service acted outside of its lawful scope of activity in that it obtained two months of call associated data for the home telephone line of journalist Nicky Hager.
The NZSIS accepted the IGIS findings in full and apologised to Mr Hager, in line with the Inspector-General's recommendation. The Director-General of Security reiterated that apology publicly following the release of the IGIS report.
In recognition of this breach, the NZSIS has agreed to pay compensation to Mr Hager, and a contribution towards his legal fees.
We recognise the important role that journalists play in a free, open and democratic society - the very society the New Zealand intelligence agencies exist to uphold. There is a comprehensive policy framework in place which requires very high levels of approval, justification and oversight if there is a situation where intelligence gathering activity touches on a journalist in any way.
The introduction of the Intelligence and Security Act 2017 has clarified the law we operate under and gives a clear legal mandate to take action to identify, assess and protect against threats to sensitive and classified information. In addition, NZSIS has overhauled and significantly strengthened its policy framework and legal and compliance systems in the decade since this incident occurred.
A summary of our policies around operational collection activity involving sensitive category individuals, which includes journalists, is publicly available in the NZSIS website.
The agreed statement with Mr Hager follows:
Agreed statement as part of settlement with Mr Hager
Following the release of Mr Hager's 2011 book, Other People's Wars, the New Zealand Defence Force sought the assistance of the New Zealand Security Intelligence Service to investigate the possible unlawful disclosure of classified information to Mr Hager. In 2012, NZSIS acquired two months of Mr Hager's call associated data for his home telephone line for the purposes of assisting NZDF with that investigation.
In 2019, Mr Hager made a complaint to the Inspector General of Intelligence and Security. Before the IGIS, the NZSIS justified its use powers against Mr Hager by claiming that it was investigating espionage. However, in her report the Acting IGIS found that the NZSIS had no reasonable grounds for suspecting that any espionage had occurred and that the acquisition of two months of call associated data had therefore been unlawful. The Acting IGIS also said NZSIS failed to show necessary caution, in a free and democratic society, before carrying out investigative activity into a journalist's source.
Mr Hager had a reasonable expectation of privacy in his home telephone, and NZSIS now accepts that it acted unlawfully in obtaining that data. Doing so breached Mr Hager's rights under ss 14 and 21 of the New Zealand Bill of Rights Act 1990, and some of the Information Privacy Principles of the Privacy Act 1993.
Investigative journalists such as Mr Hager play an important role in society, including to provide an additional check on executive functions and powers. The role of Mr Hager is considerably more difficult given hls subject matter of expertise and the difficulties of obtaining information which is protected by various and numerous confidentiality mechanisms. NZSIS recognises that its actions in 2012 could have resulted in a chilling effect on such important work.
Accordingly, NZSIS apologises unreservedly for breaching Mr Hager's rights. Its conduct fell short of its own expectations. In recognition of this breach, NZSIS have agreed to pay compensation to Mr Hager and a contribution towards his legal fees.
Link to this