State Services Commissioner apologises to Derek Leask and Nigel Fyfe

Statement from State Services Commissioner Peter Hughes

I have today apologised to Mr Derek Leask and Mr Nigel Fyfe for issues identified by the Ombudsman relating to the Investigation into the Possible Unauthorised Disclosure of Information Relating to the Ministry of Foreign Affairs and Trade (MFAT) and the Investigator's final report.

While the report did not name Mr Leask or Mr Fyfe, they were publicly identified as persons Y and Z and were the subject of significant criticism.

Following a complaint by Mr Leask, the Ombudsman found that the State Services Commission acted unreasonably in relation to Mr Leask and identified numerous deficiencies in the investigation process and in the publication of the final report and in the criticisms it contained of Mr Leask.  The Ombudsman made five recommendations, including a public apology and the payment of compensation.

I accept the Ombudsman's report and have now taken steps to address the Ombudsman's recommendations.

While the Ombudsman's findings relate to Mr Leask, in the interests of fairness, I have decided they should also be applied to Mr Fyfe.

I unreservedly apologise to Mr Leask and Mr Fyfe for the deficiencies the Ombudsman identified in the investigation and the publication of the Final Report.

I recognise that in the course of the investigation Mr Leask and Mr Fyfe were treated unfairly and that this caused significant stress to both them and their families. I have met with Mr Leask and Mr Fyfe and their families to apologise in person.

The criticisms and accusations made against Mr Leask and Mr Fyfe are withdrawn.

The Ombudsman recommended the refund of legal expenses incurred by Mr Leask and that the parties undertake a consultation process, in good faith, to determine a level of appropriate compensation that recognises the harm to his reputation caused by the deficiencies he identified in the investigation and the publication of the report.

These steps have been extended to Mr Fyfe.

The State Services Commission has agreed a settlement with Mr Leask and Mr Fyfe. The settlement includes compensation and the refund of legal expenses. The amount of the settlement, by agreement between all parties, will remain confidential.

The report as received by the State Services Commission has been redacted to reflect the Ombudsman's findings. The redacted version is now the official report held on record by the State Services Commission.

The Ombudsman also recommended that SSC post a notice on the final report online with a link to the Ombudsman's findings and carry out a review of guidance provided to reviewers.

A notice has been placed on the online report and the associated pages of SSC's website. In addition a project to review the guidance provided to reviewers is underway. Former Solicitor-General, Mr Mike Heron QC is assisting with this work.

I also apologise to Mr Leask for the breach of Principle 7 of the Privacy Act.

A request from Mr Leask to have corrections to material about him considered and attached to the Final Report upon publication in 2013 was not actioned by SSC.

The material Mr Leask's correction statement relates to has now been redacted from the report, and the statement is no longer required.

This statement constitutes the State Services Commission's formal response to the Ombudsman's report.

This statement forms part of an agreed settlement and the State Services Commissioner has no further comment to make on the apology and settlement. 

Background

The investigation into the unauthorised disclosures of information about MFAT was initiated in mid-2012 and carried out by Dame Paula Rebstock as an independent investigator appointed under the State Sector Act 1988. The Investigation Report was released in December 2013.

Mr Leask made a complaint to the Office of the Ombudsman in February 2014 and Professor Paterson commenced his investigation in June 2014.

Professor Ron Paterson's report was publicly released on 23 June 2016.

The Ombudsman found that, in respect of Mr Leask, SSC acted unreasonably during the Inquiry and in the findings and publication of the final report, the processes used during the investigation and the publication of that report were unfair, and not in accordance with the principles of natural justice.

The Ombudsman found the evidence did not reasonably support some of the criticisms of Mr Leask, that some highly relevant evidence was not properly addressed and that some was presented in an unfair way. He also found that the findings in the report exceeded the terms of reference and that the publication of the final report in a manner that identified Mr Leask and contained unfair criticism of him was unjust.

The Ombudsman made five recommendations:

  • a public apology for the issues identified in the investigation and the publication of its report,
  • a requirement that those accessing the report are made aware of the Ombudsman's findings,
  • the payment of Mr Leask's legal fees and other costs,
  • consultations aimed at determining appropriate compensation for the harm done to Mr Leask's reputation,
  • a review of SSC guidance for any future such investigations.

ENDS

Media contact: Tim Ingleton SSC (04) 495 6648, ssc-media@ssc.govt.nz

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