A v Attorney-General

[2013] NZHC 988

NO PERSON OTHER THAN THE PARTIES TO THE PROCEEDING OR THEIR COUNSEL MAY HAVE ACCESS TO ANY DOCUMENTS ON THE COURT FILE WITHOUT THE PERMISSION OF A JUDGE.

ORDER PROHIBITING PUBLICATION OF THE NAME OR PARTICULARS LIKELY TO LEAD TO THE IDENTIFICATION OF THE APPLICANT UNTIL FURTHER ORDER OF THIS COURT OR THE COURT OF APPEAL.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-522 [2013] NZHC 988

UNDER  the Judicature Amendment Act 1972

IN THE MATTER OF     an investigation by Paula Rebstock into possible unauthorised disclosure of information about the Ministry of Foreign Affairs and Trade

BETWEEN  A Applicant

ANDHER MAJESTY'S ATTORNEY- GENERAL

First Respondent

ANDPAULA REBSTOCK Second Respondent

Hearing:         30 April 2013

Counsel:         J S McHerron for applicant

U R Jagose and C I J Fleming for respondents

Reissued

Judgment:      15 May 2013 (to be read with addendum of 15 May 2013)

RESERVED JUDGMENT OF DOBSON J

A v ATTORNEY-GENERAL HC WN CIV-2013-485-522 [15 May 2013]

Contents

The factual context ............................................................................................................................ [6] First ground of challenge: report going beyond terms of reference ............................................ [29] “Suspicions” so different as to require separate authorisation? ................................................. [37] “Strong suspicion” not supported by sufficient probative evidence ........................................... [43] Breach of natural justice: inadequate disclosure.......................................................................... [70] Summary .......................................................................................................................................... [91] Scope of on-going suppression........................................................................................................ [96] Costs ............................................................................................................................................... [102]

[1]      In this proceeding, A seeks judicial review of what are presently draft conclusions  reached  by  the  second  respondent  (Ms Rebstock)  in  relation  to  an investigation Ms Rebstock has undertaken into possible unauthorised disclosure, in early May 2012, of Cabinet Committee papers (the Cabinet papers1) addressing possible  changes  at  the  Ministry  of  Foreign  Affairs  and  Trade  (MFAT).    The Attorney-General has been sued in respect of the State Services Commissioner (the

Commissioner) who appointed Ms Rebstock to report to him under s 25 of the State Sector Act 1988 (the Act) in respect of an investigation to be conducted under s 8 of the Act.

[2]      The proceedings were commenced on 10 April 2013.  A pre-commencement application on  behalf  of A resulted  in  orders,  which  were  granted  by  consent, enabling A to pursue the proceedings without disclosure of A’s identity.  Prohibition on publication of any details that might lead to A being identified have been continued and I will address the post substantive determination position at the conclusion of this judgment.

[3]      Because completion of Ms Rebstock’s report was imminent, A applied for interim orders under s 8 of the Judicature Amendment Act 1972 to preserve his position pending substantive determination.  I made such orders on 19 April 2013, in

the context of arrangements for the expedited substantive hearing.2

1      Adopting the shorthand description of the papers used by counsel.

2      A v Attorney-General [2013] NZHC 823.

[4]      The  statement  of  claim  alleged  that  the  scope  of  an  advanced  draft  of Ms Rebstock’s  proposed  report  exceeded  the  scope  of  her  task  that  had  been delineated  in  the  terms  of  reference  under  which  she  was  appointed  and  was therefore unlawful.   It was also alleged that the analysis of factors relied on by Ms Rebstock to justify a “strong suspicion” that unauthorised disclosure had been undertaken by A was unreasonable in the administrative law sense.  The statement of claim also alleged that refusals to provide A with greater detail of the matters likely to be taken into account in forming views adverse to A breached his relevant entitlement to natural justice, because withholding the further information prevented him adequately preparing his response to the concerns raised.

[5]      A further allegation of pre-determination was abandoned at the hearing.

The factual context

[6]      In  early May 2012,  the  Labour Party spokesman for  foreign  affairs, the Hon Phil Goff, asked a question in Parliament which appeared to derive from his having possession of two Cabinet papers that had been prepared about changes at MFAT.  On the basis that there appeared to have been unauthorised disclosure of the Cabinet papers to Mr Goff, the Commissioner decided to conduct an investigation under s 8 of the Act into the possible unauthorised disclosure of the two Cabinet papers in question, and one produced shortly after those two.

[7]      On 4 May 2012, the Commissioner appointed Ms Rebstock under s 25 of the Act to conduct the investigation and report her findings to him.  In his letter of appointment, the Commissioner advised the terms of reference for the investigation as follows:

Investigate  and  report  on  the  relevant  facts  around  a  possible unauthorised disclosure of three Cabinet papers, titled “Ministry of Foreign Affairs and Trade: Change Programme”, “MFAT: Global Footprint: European Posts”, and “Ministry of Foreign Affairs and Trade: Forecast Financial Position”, as well as information relating to those papers; and

Make recommendations as to measures, if any, that could strengthen information management systems within MFAT (or other agencies

relevant  to  the  investigation)  to  improve   secure  handling  of government information and deter unauthorised disclosure.

[8]      The  Commissioner’s  letter  appointed  Ms Rebstock  “…  to  conduct  the investigation in a fair, thorough and prompt manner and to report your findings and recommendations to me”.   The Commissioner authorised Ms Rebstock to exercise his powers under ss 7, 9, 10 and 26 of the Act for the purpose of undertaking the investigation and reporting to him.

[9]      On 23 May 2012, the Commissioner wrote again to Ms Rebstock indicating that he had intended the original terms of reference to encompass a broad investigation into the background facts surrounding the development of the MFAT change programme and the environment within which MFAT was operating, including  who  may  have  been  responsible  for  earlier  unauthorised  disclosures leading up to the unauthorised disclosure of the three Cabinet papers.   For the avoidance of doubt, the Commissioner added a third term of reference relating to those earlier matters.

[10]     The Prime Minister had, on the same day as the Commissioner directed Ms Rebstock to undertake the investigation, publicly commented that he would not be launching an inquiry over the leaked Cabinet papers.  Mr McHerron treated this as relevant to the context in which the investigation was undertaken.   The Prime Minister was attributed with saying:

… the sad fact of life is you virtually never find who’s responsible.

[11] [12]

[13]     In August 2012, Ms Rebstock made contact with A, requesting an interview. With her written request, Ms Rebstock enclosed an “information sheet” which set out the  terms  of  delegation from  the  Commissioner under  s 8  of  the Act,  and  the delegation to her of powers and functions under ss 7, 9, 10, 25 and 26 of the Act. She advised that she had the same powers and authority to summon witnesses and receive evidence as are conferred upon commissions of inquiry by the Commissions

of  Inquiry Act  1908,  and  that  those  powers  included  the  power  to  summons witnesses.  She advised that evidence could be given on oath, which she would administer.    The  information  sheet  specified  that  Ms Rebstock  would  have  all evidence taped and that witnesses may have a support person or lawyer of their choice present when giving their evidence.  She confirmed that she would comply with the principles of natural justice and in particular would not make adverse findings without first giving the affected person the opportunity to comment on any draft and provisional adverse findings.

[14]

[15]     After Ms Rebstock’s first interview with A, Ms Rebstock had data retrieved from the machine that A would have used in copying documents at [       ].  Those records showed that shortly after 9am on 1 May 2012, A photocopied 28 pages and scanned two items comprising 10 and 18 pages.  The records apparently showed that the scanned documents had been sent to A’s internal [       ] email address.  The first two of the three Cabinet papers that were the subject of the investigation were 10 and

18 pages respectively.

[16]     Ms Rebstock, again with the assistance of Ms Hansen, conducted a second interview with A by Skype on 17 October 2012.  Without first disclosing to A what had been gleaned from the records of the machine that A had used, Ms Rebstock asked what A’s practice had been in scanning documents when working at [      ].  A answered that he would not generally scan documents and that scanning did not generally occur with Cabinet papers.  He qualified that by saying there were some occasions when Cabinet papers would be scanned, but not often.  Ms Rebstock then revealed what the record on the machine showed, and asked A if he had scanned documents, whether they would appear in the document management system maintained at [       ].  He agreed that generally scanning would be for the purposes of entering them into that system and A could not think of other reasons for scanning documents.

[17]     A could not recall exactly what he was doing on 1 May 2012, and did not recall scanning the Cabinet papers in question.  A did not know why he would have

scanned those papers and said that if he scanned anything, it would probably just have been deleted if it was not necessary.  A said that scanned documents would usually go into his inbox and he guessed that it would have been deleted in his inbox. He did not recall deleting the documents scanned on that morning from his emails. Nor did he recall either forwarding the scanned document to anyone else or making a copy of it.

[18]     Ms Rebstock observed that A was having difficulty providing an answer as to why he would have scanned what apparently were Cabinet papers and A’s repeated response was that he could not recall it.  A said he did not really know much about any rules around scanning Cabinet papers but suspected that it was probably not okay to scan such papers. He said he would have been rushing around doing all sorts of stuff so he could not recall what had occurred.  He then answered that he did not recall whether he had scanned the Cabinet papers to provide them to someone who was not authorised to receive them, and that he did not know whether he would give Cabinet papers to someone who was not authorised to receive them, adding that that was “kind of speculation”.

[19]     After that interview, Ms Hansen posed a sequence of questions in relation to the scanning recorded by the machine that appeared to have been of the documents in question. A’s response was that he believed he had answered the questions as best he could recall, and that he had nothing further to add.

[20]     On 20 December 2012, a performance review manager at the State Services Commission wrote to A as a “part of the natural justice process for the MFAT investigation”.  The letter advised that Ms Rebstock had reason to believe that on the balance of probabilities, it was more likely than not that A was the person who disclosed Cabinet papers about MFAT to Mr Goff, either directly or indirectly.  The letter set out 19  points on  which Ms Rebstock had relied in making her initial findings.  The letter treated them as “the facts” on which Ms Rebstock had relied. Numerous  of  the  points  were  matters  of  inference,  or  matters  of  opinion Ms Rebstock  had  come  to,  such  as  finding some of A’s  answers in  the second interview to be unsatisfactory, and Ms Rebstock’s assessment that she did not find A to be a credible witness.

[21]     Mr McHerron  responded  to  the  20 December  2012  letter  by  letter  dated

1 February 2013.  Mr McHerron’s letter provided specific responses to the matters that the 20 December letter had reported Ms Rebstock as having taken into account. [             ]     Mr McHerron  also  challenged  Ms Rebstock’s  criticisms  of  A  for “unsatisfactory”,   “vague”   and   “equivocal”   responses   during   the   interviews. Mr McHerron criticised the compound formulation of a number of Ms Rebstock’s questions,  and  unreasonable  inferences  drawn  from  answers  that  Mr McHerron argued were given quite reasonably by A when his basic position was that he did not recall scanning the documents.

[22]     Mr McHerron requested seven items of further information, including the source information on which Ms Rebstock relied to say that the Cabinet papers were copied and  scanned by A at  the time alleged, any  evidence linking the papers received by A with the papers allegedly possessed by Mr Goff, and the results of “forensic work” that Ms Rebstock had referred to in her questioning during the second interview.

[23]     The   requests   for   further   information   were   declined   in   a   letter   to Mr McHerron dated 8 February 2013.  Solicitors for A repeated the request in a letter of 11 February 2013 but that was also declined.

[24]     On 26 March 2013, the performance review manager at the State Services Comission provided Mr McHerron with extracts from Ms Rebstock’s draft report that related to A.  Comments on the draft were invited, to be submitted by 8 April

2013.

[25]     On the possible identity of who  provided unauthorised disclosure of  the Cabinet papers, the executive summary from the relevant part of the draft report included the following:

IX.      … The investigation needed to bear in mind the distinction between evidence which merely raises suspicion and that which is sufficient to amount to proof.  Recognition of that distinction and what the evidence establishes requires the investigation to apply a level of proof commensurate with the seriousness of the primary issue into which the investigation has to inquire and report.

X.       Approaching the matter in that way the investigation has concluded that on the evidence outlined there is a proper basis for strong suspicion this person may have been responsible for the leak of a copy   of   the   Change   Programme   and   Europe   Posts   Cabinet Committee papers to someone, not necessarily the Labour Spokesperson on Foreign Affairs and Trade, who may have passed them on to him.  However applying the level of proof referred to in the preceding paragraph the investigation does not believe it can conclude as a matter of proven fact that this person was responsible for the leak of the papers.  As indicated the evidence takes the investigation no further than a point of “strong suspicion”.

[26]     The extract of the draft report provided to A’s advisers reflected an updated and altered analysis from the 19 points that were set out in the 20 December 2012 letter.  [         ]  The draft report recites what the records of the machine used by A show.     From  9.02am  on  1 May  2012,  A  scanned  a  document  of  10  pages, photocopied 28 pages and scanned a document of 18 pages sequentially within a three minute period.  The draft then notes that the two papers in question were respectively 10 and 18 pages long.  The draft observes that there were no other photocopies taken of documents of the right size by A or other staff who might have had access to the Cabinet papers on that morning and [          ] had the two papers in [      ] possession by late morning on 1 May 2012.

[27]     The draft also reports that A’s email inbox was permanently deleted after he left [       ], and that [       ] could not find a match in electronically stored documents for those (ie of 10 and 18 pages) that had been scanned by A shortly after 9am on

1 May 2012.    Nor  could the electronic records  establish if  the scans  had been attached to an email sent by A on 1 or 2 May 2012.

[28]     The draft report quotes a passage of questions and answers during the second interview  Ms Rebstock  conducted  with  A,  acknowledging  “concerns  about  the uncertainty and apparent equivocation in the answers”.    The draft report acknowledged receiving a firm rejection of responsibility for unauthorised disclosure from A’s legal representatives, but observed that contrasted sharply with the “uncertain and equivocatory nature” of A’s answers during interviews.   The draft distinguishes  the  rejection  of  responsibility  for  disclosure  to  Mr Goff,  from  a disclaimer in wider terms of responsibility for unauthorised disclosure to any third party.   The draft report states that Ms Rebstock was left “deeply concerned as to

whether the evidence showed that A may have been responsible for disclosure …”.

That was followed with the comment:

However, … the investigation concluded it could not find as a matter of

proven fact that A was the person responsible for the leak of the papers.

First ground of challenge: report going beyond terms of reference

[29]     Mr McHerron argued that the terms of reference prescribed the scope of Ms Rebstock’s task, and that it was unlawful for her to go beyond matters within the terms of reference.  Mr McHerron cited the Court of Appeal’s decision in Peters v Davison for the availability of judicial review and the context in which it may occur, including review on the ground that a commission of inquiry had exceeded its terms

of reference.3

[30]     Here, Mr McHerron argued that the terms of reference should be deemed to have been deliberately confined to an investigation and report “… on the relevant facts around a possible unauthorised disclosure …”, so that there was no jurisdiction to go beyond what Ms Rebstock could establish as matters of fact.  In particular, she did not have jurisdiction to report on suspicions as to what may have occurred where she was unable to establish what the facts were.

[31]     Mr McHerron  argued  that  this  limit  was  consistent  with  the  nature  and functions of such a commission of inquiry.  Again, as recognised by the Court of Appeal in Peters, a commission of inquiry is not to be likened to a court of law, nor to an administrative tribunal.  It does not decide questions between parties and there is nothing approaching a lis with commissions of inquiry having no general power of

adjudication.4     Contrary to the observations of the Court of Appeal relied on by

Mr McHerron from Peters, the general characterisation of commissions of inquiry in that case recognised that reports of commissions of inquiry do, in the end, amount to expressions of opinion.  That observation is relevant here and the interpretation of the terms of reference here should take account of the objective of the Commissioner

in  appointing Ms Rebstock: conclusory statements were reasonably expected, as

3      Peters v Davison [1999] 2 NZLR 164 at 181 and 184.

4      Peters at 181.

were recommendations for improvements in the systems for securely handling government information.

[32]     Ms Jagose  urged  a  somewhat  wider  approach to  the  terms  of  reference, arguing that they should be interpreted in the context of what had occurred, and the letter of appointment from the Commissioner.   What was required was an investigation (rather than an inquiry) and the outcome of the investigation was to be Ms Rebstock’s report to the Commissioner on her findings and recommendations. The particular term of reference ends with a requirement that the report contain as well information “relating to those papers”.

[33]     The essential rationale for undertaking the investigation was to endeavour to ascertain how unauthorised disclosure occurred, implicitly including a finding on who was responsible for the disclosure, and how systems might be improved to reduce the prospects of a recurrence.  The Commissioner must reasonably have contemplated that Ms Rebstock would not be able to establish with certainty who was   responsible.     The  reality  in  such  circumstances,  as   conveyed  by  the Prime Minister’s comment on the same day as the investigation was instigated, is that at the end of the investigation, responsibility for unauthorised disclosure would remain uncertain.

[34]     Mr McHerron submitted that the terms of reference had been drafted so that, if that contingency arose, Ms Rebstock was not to report on leads she had pursued where they had ended inconclusively.  He argued that if the investigation got no further than strong suspicions, those were not to be reported and the report would simply state that she could not find, as a fact, who was responsible.

[35]     Given the context in which the terms of reference were set, it would be artificial to interpret the first term of reference as limiting Ms Rebstock’s report to matters that she was satisfied had been established as facts.  To attribute such a limitation from the outset, without knowing what the investigation might discover, would potentially limit the utility of the report in a substantial way, without a logical justification for doing so.

[36]     The relevant term of reference sought a report on factual matters relevant to the possible unauthorised disclosure, as well as information relating to the Cabinet papers in question.  To the extent that Ms Rebstock could not establish as matters of proven fact how disclosures occurred, the report was properly to include the outcome of her investigations undertaken towards that end.

“Suspicions” so different as to require separate authorisation?

[37]     Mr McHerron  supplemented  his  argument  that  the  terms  of  reference excluded authority for Ms Rebstock to report on relevant suspicions she had formed by treating suspicions as a discrete category of potential conclusion, for which separate authorisation would be required in the terms of reference.  He cited the approach of Sir William Gage (recently retired Lord Justice of Appeal in England) in his conduct of the Baha Mousa public inquiry into the death of Mr Mousa whilst in

the custody of British soldiers in Iraq in 2003.5    Sir William produced a separate

ruling on the standard of proof as he intended to apply it in the inquiry.  In it, he opted for a flexible standard reflecting on the relative seriousness of the particular issue and adverse consequences for those against whom that finding might be made. The ruling also addressed whether he was entitled to make comments expressing a suspicion that allegations were true.   Counsel for some interested parties had submitted that he could not because the relevant statutory power under the Inquiries Act 2005 (UK) was only one to determine the facts. He concluded:

I do not accept that I may not make such comments.   In my opinion the terms of s.24(1)(a) do not restrict me from doing so.    In any event, as Mr Singh pointed out, s.24(1) of the 2005 Act provides that “The report may also contain anything else that the panel considers relevant to the terms of reference”.  I do, however, accept and stress that by making a comment of that nature I would not be making a finding of fact.  I further accept that the power  to  make  such  a  comment  should  be  exercised  sparingly. Circumstances in which I will feel constrained to do so will, I believe, be comparatively rare.

[38]     Mr McHerron argued that contrasting features of the present case meant that

Ms Rebstock had to stop short of expressing any suspicions.  First, he suggested that the caution Sir William Gage had expressed about the circumstances in which it

5      William Gage Report of the Baha Mousa Public Inquiry, Ruling on the Standard of Proof, 7 May

2010.

might  become  appropriate  to  express  a  suspicion  would  exclude  those  that confronted Ms Rebstock on this issue.   It was central to the investigation, and on Mr McHerron’s   analysis   there  was   no   probative  evidence  linking  A  to   an unauthorised disclosure.  Therefore, he argued, the topic was one which fell outside those on which suspicions might sparingly be expressed.

[39]     Also, the empowering provision in s 24  of the Inquiries Act 2005  (UK) included a provision allowing an inquiry to broaden the scope of the subject matter to “… anything else that the Panel considers to be relevant to the terms of reference

…”.   Further, the specific terms of reference for the Baha Mousa inquiry charged Sir William with investigating and reporting on the “circumstances surrounding the death of Baha Mousa and the treatment of those detained with him …”.  There was no express limitation to inquiring into matters of fact.

[40]     I  am  not  persuaded  that  singly,  or  in  combination, those points  warrant adopting the converse of the approach settled on by Sir William Gage in the Baha Mousa inquiry.   Nor does the analysis in that ruling justify a requirement that drafters of terms of reference for investigations such as this need to recognise a discrete category of investigation that would  result only in reporting suspicions rather than proven facts.   In the deliberative process in contexts such as this, suspicions are a form of opinion.  The Commissioner exercised a statutory power to delegate other statutory powers to Ms Rebstock to conduct an investigation and to report, among other things, on recommendations that Ms Rebstock might make as a result of considering all the material she had become familiar with in the course of the investigation.

[41]     Ms Rebstock would have been chosen for the task because of her perceived competence to do so.  As I have already observed, the utility of the report to the Commissioner would be substantially limited if Ms Rebstock was prevented from including grounds for, and the nature of, suspicions that she held on relevant points. As in all aspects, inclusion of suspicions would be subject to the administrative law obligations to record them only in accordance with the entitlement to natural justice of any persons adversely affected, and the prospect of their being quashed if the inclusion of such suspicions was unreasonable in the administrative law sense.

[42]     It follows that the jurisdictional aspects of A’s challenge to Ms Rebstock’s report including an opinion reflecting a strong suspicion of A’s responsibility for unauthorised disclosure cannot succeed.

“Strong suspicion” not supported by sufficient probative evidence

[43]     Mr McHerron argued that the evidence gathered by the investigation was not reasonably capable of supporting Ms Rebstock’s “strong suspicion” that A provided unauthorised disclosure. Arguably, that would render it a finding or opinion that was unreasonable in the administrative law sense.

[44]     It was common ground that the administrative law principles on conduct of commissions of inquiry apply by analogy to the present position.   Mr McHerron cited  the Privy Council’s  analysis  in  the Erebus  proceedings.6     That required a finding by a commission of inquiry to be based on probative evidence in the sense that the decision to make the finding has to be based on some material that tends logically to show the existence of facts consistent with the finding and that the

reasoning supportive of the finding is not logically self-contradictory. As to process, the decision-maker must listen fairly to any evidence that relevantly conflicts with the finding that the inquiry proposes making, and any rational argument against the finding raised on behalf of a person who may be adversely affected by it.7

[45]     Mr McHerron also cited from the Court of Appeal reasoning:8

If a party seeks to show … that the evidence on which he was condemned was insubstantial, the Court is not compelled to shut its eyes to the state of the evidence in deciding whether, looking at the whole case in perspective, he has been treated fairly.

[46]     Mr McHerron also invited analogy with the approach of the Court of Appeal in Peters:9

6      Re Erebus Royal Commission [1983] NZLR 662 (PC).

7      At 671 per Lord Diplock.

8      Re Erebus Royal Commission (No 2) [1981] 1 NZLR 618 (CA) at 629 per Woodhouse P and

McMullin J.

9      At 186 per Richardson P, Henry and Keith JJ.

Where a report calls a person’s reputation into question in a direct way, both that person and the public generally have an interest in ensuring that any criticism is made upon a proper legal basis.   It would be contrary to the public  interest  if  the  Courts  were  not  prepared  to  protect  the  right  to reputation in such a context …

[47]     Mr McHerron also cited from the separate judgment of Tipping J in Peters as follows:10

The extent to which, if at all, error of fact can constitute ultra vires conduct, and thus provide  a basis for review, does not  arise and can be left for decision to another day.   It is, however, worthy of note that in the Erebus case at p 671 Lord Diplock, speaking for the Privy Council, considered a finding of fact made without any probative evidence to support it, amounted to a breach of natural justice, rather than the more conventional classification of such a situation as error of law.  Either classification, however, represents a species of ultra vires, and it would seem consistent to require error of fact to be at the level of ultra vires (whether as an error of law or as a breach of natural justice or indeed as irrationality) before intervention on review is justified.

[48]     I respectfully adopt the approach to intervention on review that is expressed by Tipping J.

[49]     Mr McHerron argued that Ms Rebstock could not base views adverse to A on perceived inadequacies or grounds for suspicion in the answers he gave in the two interviews.     Mr McHerron  argued  that  allowance  had  to  be  made  for  the circumstances in which A was interviewed on Skype, without prior disclosure of the information  that  might  be  held  against  him,  and  without  legal  representation. Mr McHerron submitted that repeated compound questions were cast unfairly when they required a clear recollection by A of having scanned and copied the Cabinet papers in question, when A repeatedly stated that he had no clear recollection of the scanning.  Mr McHerron also argued that Ms Rebstock placed selective reliance on some of A’s answers, without having regard to the different impression given by other answers.

[50]     Ms Jagose argued that it was reasonably open to Ms Rebstock to attribute what she has thus far included in the draft report, to each of the answers relied on in

the  interviews  with  A.     The  Court  was  cautioned  against  taking  a  different

10     At 210.

impression from reading the transcript when  Ms Rebstock had the advantage of seeing and assessing A throughout both interviews.  Further, the factual matters were within a relatively narrow compass.  It was open to Ms Rebstock to attribute to the responses she found unsatisfactory the relative importance that she did, and the weight given to any piece of evidence was quintessentially for the decision-maker, not a court on review.

[51]     There were respects in which the compound form in which questions were posed of A may have led to objection from a legal representative supporting A, with a request that the cumulative propositions be reduced to single components, asked separately.  There were also instances in which (perhaps inevitably) the same point was addressed repeatedly.

[52]     As to the advantage Ms Rebstock had from seeing and hearing A in his response to the questioning on two occasions, current academic research on the reliability of methods of fact-finding is redolent with cautions about over-reliance on perceptions gained from the manner in which witnesses (or suspects) answer questions. The reliability of many behavioural and verbal cues classically thought to indicate truth or falsity in answers is subject to question.11    Ms Rebstock did raise during the second interview with A her concerns at the equivocal nature of his responses  in  the first  interview so  that  there was  an  adequate warning that A’s

equivocation on critical questions as to what had happened with the Cabinet papers was a source of concern.

[53]    An adequate answer to these criticisms is the context of the investigation. Although it is ironic to refer to it precisely a year after it commenced, Ms Rebstock was charged with completing her task promptly.  She administered an affirmation at the outset of each interview, but they appear to have been conducted relatively informally and were not definitive in the sense that A was invited to revert after the

interviews with anything further he wished to add.   Ms Rebstock was assisted by

11     For example, Leanne ten Brinke and Stephen Porter “Discovering Deceit: Applying Laboratory and Field Research in the Search for Truthful and Deceptive Behaviour” in B S Cooper and others (eds) Applied Issues in Investigative Interviewing, Eyewitness Memory, and Credibility Assessment (Springer Science & and Business Media, New York, 2013) at 221.

counsel, but she conducted by far the larger part of the interviews herself.  There is no basis for disentitling Ms Rebstock to rely on the answers that were provided.

[54]     Nor am I persuaded that it was not open to Ms Rebstock to place the reliance that she has on the aspects of A’s answers that Mr McHerron criticised as selective or misleading in light of other answers.  The situation was that A did prevaricate as to what he had done.  It was open to an investigator conducting the interviews to have a range of reactions to the totality of answers provided.  At the benign end of the spectrum  of   possible   reactions,   an   investigator  could   be   accepting  of   the equivocation and uncertainty.  At the vigilant end of the spectrum, an investigator could assess the equivocation and uncertainty against an expectation, given the relative importance of the subject matter, that a reasonable person in A’s position ought to have been able to provide more definitive responses.   A was entitled to require  Ms Rebstock  to  have  a  reasoned  basis  for  rejecting  or  questioning his evidence. He could not insist that his answers be accepted unless and until they were proven to be wrong.

[55]     As Ms Jagose submitted, there is no scope for a finding of unreasonableness in  administrative law terms  if  the decision-maker adopted one of  two  or  more options that were more or less equally open to the decision-maker.   Here, the investigation identified a sequence of factors that pointed to the possibility of A providing unauthorised disclosure.  They cannot be dismissed as an inadequate foundation for Ms Rebstock to question the reliability and credibility of what A said to her.

[56]     Mr McHerron    invited    an    analogy    with    the    approach    taken    to unreasonableness by virtue of absence of probative evidence for a finding in the case of Carroll v Coroner’s Court at Auckland, a decision in which had been delivered the day before argument.12   In that case, volunteers who had taken in a distressed young woman at night were the subject of adverse comment in a coronial report for not having called the Police.  In giving evidence to the coronial inquiry, the volunteers

had acknowledged a dilemma in that the young woman had pleaded with them not to

call the Police and they perceived a risk that she would bolt if they did.

12     Carroll v Coroner’s Court at Auckland [2013] NZHC 906.

[57]     Having  accepted  the  volunteers’ concern  to  respect  the  young  woman’s wishes not to involve the Police, the Coroner opined that their decision not to contact the Police “was a contributing factor in [the young woman’s] death, because it was an opportunity for professional intervention that may have prevented the death”.

[58]   In  the  following paragraph  of  the  Coroner’s  report,  the  Coroner acknowledged that it was purely speculative to suggest that contacting the Police may have avoided the young woman’s death.  There was no probative evidence that contacting the Police would have lessened the prospects of the young woman dying and, because of that, Winkelmann J quashed the relevant paragraphs of the Coroner’s findings that contained the opinion that the failure to call the Police was a contributing factor in the young woman’s death.

[59]     Mr McHerron’s analogy was that there was no probative evidence that A leaked the Cabinet papers, therefore the inclusion of an opinion that Ms Rebstock had strong suspicions that A was responsible for leaking the papers is without probative evidence.

[60]     However, a distinction can be drawn between the speculation involved in what different course of events may have followed for the young woman whose death was the subject of the coronial inquiry, had the volunteers contacted the Police over her objections, and the progression of the analysis on the circumstances in which unauthorised disclosure of the Cabinet papers had occurred.  In the context of a review of the circumstances of those who had an opportunity to leak the papers, the investigator has settled, for reasons that she identifies, on A as the subject of her strong suspicions.  Ms Rebstock acknowledges she cannot prove it, but relies on a sequence of propositions that tend towards such a finding, albeit stopping short of establishing it.   The criticism of the leap made by the Coroner in Carroll cannot apply equally to the progression in the analysis Ms Rebstock proposes.

[61]

[62]     The references in the draft report are insufficient to attribute to Ms Rebstock any unwarranted finding of motive for unauthorised disclosure. Whilst some readers

of  the  draft  report  might  treat  those  references  as  suggesting  a  motive  for unauthorised disclosure, they might equally be treated as relevant to the more limited point of A’s opportunity to leak the Cabinet papers.  A’s contacts included people whom he knew, and potentially could trust, to make use of a leaked document without compromising his identity.

[63]     The prior suggestion of motive is not attributable to the draft report and the factual points raised in it in relation to opportunity can certainly not be challenged in isolation as evidence of unreasonableness.

[64]     Mr McHerron also criticised as hair-splitting and unreasonable the approach by Ms Rebstock to a subsequent unequivocal denial of unauthorised disclosure made on behalf of A.   In his 1 February 2013 response to the 20 December 2012 letter, Mr McHerron reported A’s rejection of the allegation that A had been responsible “… for the disclosure of Cabinet Committee papers about MFAT in May 2012 to the Hon Phil Goff”.  In the draft report, Ms Rebstock made the point that the precise terms used by A’s legal representative “… taken at face value does not amount to a disclaimer of responsibility for unauthorised disclosure to a third party”.

[65]     The  point  was  that,  taken  literally,  the  disclaimer did  not  cover  all  the prospects that Ms Rebstock had to consider.  Mr McHerron argued that that reaction to the disclaimer was unreasonable, particularly as he assumed responsibility for the wording in which the disclaimer was expressed, and that A’s instructions would readily have permitted him to expand it to denial of responsibility for disclosures both to Mr Goff, and to any third parties.

[66]     However,  Ms Rebstock’s  approach  to  the  point  cannot  on  its  own,  or cumulatively with the other criticisms, make out unreasonableness in the administrative law sense.  It was open to the investigator to carefully test the breadth of the conduct disclaimed.   In any event, subsequent to disclosure of the extracts from the draft report, A has completed a statutory declaration confirming that he had intended the earlier disclaimer to extend to a denial of responsibility for unauthorised disclosure to third parties.  In it, he formally confirmed that he was not responsible for unauthorised disclosure to any third party, including directly or indirectly to

Mr Goff.   It is reasonable to assume that Ms Rebstock’s revision of the draft will take account of that statutory declaration, leading to amendment to the point that took issue with the scope of the previous disclaimer.

[67]     The    implicit    premise    from    which    Mr McHerron’s    arguments    on administrative law unreasonableness proceeded was that the investigator’s search for evidence of unauthorised disclosure was a discrete topic from, for example, the investigation of those who had a relevant opportunity to disclose.  It would follow that the draft report should be assessed for the reasonableness of its assessment of the   evidence   going   to   unauthorised   disclosure.      Mr McHerron   relied   on Ms Rebstock’s acceptance that there was none.

[68]     I do not agree with that approach.  Among the investigative processes that were open to Ms Rebstock was one which progressed from identifying those who had the opportunity to make unauthorised disclosure, to the closely related analysis of the prospects that any one or more of those with the opportunity to disclose had indeed  done so.    In  the assessment  of A’s  potential  involvement,  Mr McHerron argued that a distinction had to be maintained between facts relevant to the nature and timing of the opportunity A had to make unauthorised disclosure on the one hand, and, on the other, comments (“suspicions”) on the relative likelihood that the circumstances of A’s opportunity to make such disclosure constituted pointers for or against the proposition that it was A who made the unauthorised disclosure.  That is unrealistic and not a premise reasonably open to A in pursuing a judicial review challenge to the content of the draft report.

[69]     I will return shortly to the relevance of treating the Commissioner as the primary audience for the report, in circumstances where the report would not become publicly available.  Mr McHerron’s arguments on unreasonableness were premised on the expectations that A could legitimately have, relative to the harm that would be caused to his reputation if the report was published in the form foreshadowed in the draft.  The views I have reached in rejecting the arguments for administrative law unreasonableness take into account the prospect of the report ultimately being publicly available.  Given the context-specific balancing of interests that influence such an evaluation, the arguments for administrative law unreasonableness would

have even less weight if it were accepted that the only audience for the completed report was the Commissioner.

Breach of natural justice: inadequate disclosure

[70]     The final ground for challenge was that there had been a material inadequacy in process because Ms Rebstock has refused to provide source documents and other information apparently relied on by her in forming views adverse to A, and which his advisers have repeatedly requested.13  As is regularly observed, in administrative law, “context  is  everything”.14      With  particular  emphasis  on  this  part  of  the  case, Ms Jagose disputed Mr McHerron’s  argument  that the prejudice to A had to be

measured  by  reference  to  the  harm  to  his  reputation  that  would  follow  from disclosing this part of the report publicly.

[71]     Mr McHerron  had   cited   the  Commissioner’s   apparent   intention   when announcing the investigation in May 2012 that the report would be made public. Also,  the  form  of  information  sheet  sent  to  A  with  Ms Rebstock’s  letter  of

16 October 2012 stated that her report to the Commissioner would become a public document, with the qualification that if she received information she considered should not be made public she would be providing it to the Commissioner in a separate document in the expectation that that information would not be disclosed to the public.   Since then, media interest in the investigation would arguably have added pressure on the Commissioner to comply with his original assurance that the report would be published.

[72]     Although  not  cited  in  his  written  submissions,  in  the  course  of  oral submissions Mr McHerron suggested that provisions in the Public Records Act 2005 would effectively prevent the Commissioner from keeping Ms Rebstock’s report to him out of the public eye.   Whilst the provisions of that Act may not enable the

Commissioner to keep control of the report in the long term, it is not apparent that

13 See [22]–[23] above.

14     Wolf v Minister of Immigration [2004] NZAR 414 (HC) at [33] citing R v Secretary of State for the Home Department, ex parte Daly [2001] 2 AC 532 (HL).

any of its provisions would prevent the Commissioner respecting the confidentiality of a report (or partial report) submitted to him as such.

[73]     Contrary  to  the  apparent  inevitability that  the  report  would  be  publicly available, Ms Jagose pointed to the covering letter from the performance review manager at the State Services Commission of 26 March 2013, which enclosed the extracts of the draft report. That stated:

Once the State Services Commissioner has reviewed the report, he will make a decision about publication of the report or any parts of it.  Any person against whom adverse findings have been made will receive an advance copy prior to publication.

[74]     The context of the investigation and the scale of possible consequences are relevant to the extent of the natural justice obligations owed to persons potentially affected  adversely  by  the  investigation.    On  this  basis,  Ms Jagose  argued  that Ms Rebstock’s conduct of the investigation should be assessed on the basis of what is certain, namely her completion of a report and presentation of it to the Commissioner.  When there is no certainty of publication, or at least publication of any part that is likely to be adverse to A, Ms Rebstock should not now be held to have obligations to deal with A as if that was the certain outcome.  Ms Jagose made her submissions on behalf of both respondents, who are the author and recipient of the proposed report.

[75]     I accept Ms Jagose’s point, but it comes with consequences.  The immediate issue is therefore whether the further disclosure that has been sought on A’s behalf is necessary in the context of the scope of potential prejudice to A, resulting from opinions that are adverse to him in a report going only to the Commissioner.

[76]     Ms Jagose argued that A cannot assert an entitlement to the source data relied on for the propositions put to A about the timing, sequence and number of copies, and the extent of scanning undertaken shortly after 9am on 1 May 2012.   In the context of what is essentially an internal inquiry, it would be sufficient for A to be expected to rely upon the summary of the source data.  She argued that it would be disproportionate to require detailed disclosure of the basis on which factual propositions were put to an interviewee in that context.

[77]     Several of the remaining seven types of information requested on behalf of A have, at least in the negative sense, been answered by the terms of the draft report now disclosed.  For instance, Mr McHerron had requested in his 1 February 2013 letter any evidence linking the papers received by A with the papers allegedly possessed by Mr Goff. The draft report has spelled out the dearth of information that Ms Rebstock appears to have on that point.

[78]     It would be disproportionate in natural justice terms to require a greater level of disclosure and implicitly an additional layer of formality in the investigation where the report was only going to the Commissioner.

[79]     The adequacy of the disclosure provided to A would need to be assessed in a materially different context,  if  Ms Rebstock’s  report  was  prepared  not  only  for presentation to the Commissioner, but contemplating that he would then publish it. The respondents’ position on this appears to have changed over time.  If the report was finalised contemplating a wider audience, then the adverse consequences for A would have to be assessed in light of the potential long-term harm to reputation throughout New Zealand, and potentially further afield.  If it is reported only to the Commissioner, that recipient can be expected to appreciate the relative lack of reliability of an opinion expressed as a suspicion, coupled with an acknowledgement of an absence of proof that A was responsible for unauthorised disclosure.

[80]     In contrast, it is reasonable for A to be concerned that publication of a report that was in terms materially the same as the present draft would result in damage to his reputation as if the report included a finding that he was responsible for unauthorised disclosure.   The distinction which the Commissioner would draw between an opinion as to “suspicions”, and a finding of responsibility for leaking documents, would likely be lost on a substantial portion of the wider audience.  For those interested, but at a superficial level, the linking of A’s name with a report finding  that  unauthorised  disclosure  had  occurred  would  likely  attribute responsibility to him on a “where there is smoke there is fire” basis.

[81]     Further, the presentation of Ms Rebstock’s report to the Commissioner seems

unlikely to have punitive or adverse financial consequences for A.  [       ] Even if he

did, the Commissioner would be conscious of the unfairness in holding against A the prospect (explicitly unproven) that he had been responsible for unauthorised disclosure of sensitive documents.  In contrast, the inevitable lack of discernment in how the wider public would respond to publication of the report would carry with it the connotation that publication of “a strong suspicion” that A made unauthorised disclosures of the Cabinet papers involved punitive measures against him.

[82]     For these reasons, additional steps would be required to meet the appropriate components of natural justice obligations relative to the more serious potential adverse outcomes for A, if the report was finalised in a form contemplating publication of the aspects relating to A.

[83]     In that eventuality, I consider A would be entitled, for instance, to the source information from the photocopier/scanner said to be used by A on the morning of

1 May 2012.   In addition, A would be entitled to disclosure of the evidence the investigation had obtained from which it was said to be apparent that Mr Goff was in possession of a scanned copy of one of the papers and a copy of the other.  Since the first request for that evidence was made, the form of reference to such evidence evolved (ie between the 20 December 2012 letter and the extracts from the draft report provided for comment) but the evidence that has been relied on would still be relevant to a fully contested defence of A’s position.   In the same category is the evidence obtained from a “forensic examiner” as to the nature (and anything going to the origin) of the documents purportedly in Mr Goff’s possession.  So, too, a copy of the confidentiality and compliance deed that the draft report cites from, and states that A had signed.

[84]     The last request for additional information related to access to a copy of all other sections of the draft report that are relevant to the unauthorised disclosure, so that A can see the allegations made against him in their proper context. Conceivably, A  might  want  to  mount  additional  arguments,  such  as  that  Ms Rebstock  has overlooked opportunities  that  others  with  access  to  the  Cabinet  papers  had,  to provide unauthorised disclosure.  Alternatively, he might argue that Ms Rebstock’s evaluation of the relative likelihood of A being the source of unauthorised disclosure lacks balance, for example, in the reasons advanced for dismissing the prospect of

disclosure by anyone else who had the opportunity.  As matters stand, I am not persuaded that A would require more than the factual references that refer to his position and what he has done, and the expression of opinions based on that.  The adverse opinion of him thus far focuses only on matters or omissions relating to him, and do not depend on the wider context in which that analysis might appear in the report.  A balancing of the interests of others arises, if Ms Rebstock was to disclose to A parts of the report that do not relate to A.

[85]     If  the  basis  for  the  report  was  changed  so  that  it  was  completed  by Ms Rebstock on the premise that the part about A was available to be published, then further information of the types discussed in [83] would need to be supplied to A so that he knew more fully the case against him, given the relatively more serious adverse consequences.  In addition, he would also need to be given adequate time to prepare  an  additional  response  in  light  of  his  knowledge  of  those  items,  and Ms Rebstock would have to give such responses due consideration.

[86]     In opposing the interim orders that A sought, Ms Jagose argued that judicial review in respect of the report was premature until the report was in final form and intended use of it was known.  In most respects, that concern is not warranted, and I accept that judicial review did not have to await an error of law in the completion of such a report, if grounds existed for arguing an error or errors, or breach of natural

justice obligations would occur.15   The analysis on the present point, however, does

involve consideration of alternative contingencies.

[87]     The first alternative is that, on the basis of this judgment assuming that the report  is  prepared  for  private  submission  to  the  Commissioner,  but  not  for publication,  there  is  neither  an  error  of  law  nor  a  breach  of  natural  justice obligations, and the report could be completed without further interaction with A and

those acting for him.16   It became apparent during argument that the identity of A is

already known to the Commissioner.  It would be a matter for Ms Rebstock, but in those circumstances she may consider that references to A in the finalised report

15     A v Attorney-General [2013] NZHC 823 at [18]–[20].

16     It is to be expected that Ms Rebstock would take into account the submissions received on behalf of A from his solicitors in early April, and the statutory declaration completed by A that was submitted with them.

continue to  be  anonymised in  the manner they have been in  the draft  extracts

provided to A’s advisers at the end of March.

[88]     Once in the hands of the Commissioner, however, a report provided to him on a private basis could not be used for publication to a wider audience. That is because Ms Rebstock has  sufficiently complied with  obligations  of  natural  justice for  a private report, but would be required to undertake additional steps to enable a more thorough defence of A’s position to be adequately addressed, in the different context of a report intended to be published.

[89]     The second alternative is that, in light of this judgment, either Ms Rebstock elects to complete the report on a basis that the Commissioner would be free to publish at least the parts that relate to A, or she receives a direction from the Commissioner that she should do so.  In that event, as matters stand, Ms Rebstock would need to provide A and his advisers with the additional items of information that need to be made available in order for A to best answer the relatively more

serious case that would then confront him.17  After giving A a reasonable opportunity

to respond in light of such additional information, Ms Rebstock would be obliged to

have regard to any additional matters raised on A’s behalf.

[90]    It is not appropriate to attempt prospectively to provide for the range of contingencies that could arise under the second alternative.  Instead, the application for review is conditionally dismissed in reliance on Ms Jagose’s argument that the natural justice obligations should be assessed on the basis the report is only to be made privately available to the Commissioner.  In the event that either or both of the respondents hereafter form the intention to produce a report intended for publication in respect of the parts addressing the position of A, then they are promptly to give A’s legal advisers notice of that intention. Thereafter, the parties will have leave to apply

for the definition and argument of additional issues, as they then arise.

17     As specified in [83] above.

Summary

[91]     I have found that Ms Rebstock would not be going beyond her terms of reference and would therefore not exceed her jurisdiction if she completed a report that referred to a strong suspicion she holds that A was responsible for unauthorised disclosure of the Cabinet papers, in the context of an analysis of the grounds for such suspicion.

[92]     I am satisfied that the reliance Ms Rebstock proposes to place on the outcome of her interviews of A, having regard to the manner in which those interviews were conducted and the analysis of other matters cited in relation to the possible identity of the person who leaked the Cabinet papers, do not lead to conclusions that are unreasonable in the administrative law sense.

[93]   If the intended audience for the completed report is confined to the Commissioner, then in that context there has been no breach of the obligations to comply with the rules of natural justice in the extent of information provided to A.

[94]     However, if Ms Rebstock intended to report to the Commissioner in a form intended  also  to  be  available  to  the  Commissioner  for  publication,  then  that materially different context of her investigation and report alters the appropriate content of her natural justice obligations.   In that event, the disclosure thus far provided to A would be inadequate.  Ms Rebstock could not present a report that it would be lawful for the Commissioner to subsequently publish without Ms Rebstock having provided A and his advisers with the information outlined in [83] above, affording A an opportunity to make further submissions in light of that information, and having regard to the responses received before settling the final form of the report.

[95]     Accordingly, for the most part A’s grounds for seeking judicial review of the manner in which Ms Rebstock proposes to complete the report cannot be made out. However, A is entitled to a declaration to the effect that if Ms Rebstock intended to present her report to the Commissioner in a form that the Commissioner would be entitled to publish, then that would involve a breach of relevant rules of natural

justice because of inadequate disclosure of information relevant to A’s defence of his

position.

Scope of on-going suppression

[96]     At the hearing of the substantive application for review, I confirmed that the scope of suppression orders in relation to the identity of A would continue until delivery of this judgment. The suppressed details included the organisation at which A was working at the time of the alleged unauthorised disclosures, and where he had worked before that.

[97]

[98]     I am mindful that in explaining the narrative of events sufficiently to enable an understanding of the administrative law challenges raised on A’s behalf, my judgment becomes the vehicle for disclosing what some of those interested in the matter may treat as the essence of it, namely which organisation among the possible options is considered as most likely to have employed the person responsible for leaking the papers.   In the absence of these proceedings, that would be a matter under the control of the Commissioner.  It may be regrettable, but an incidental consequence of the judicial review proceedings having been brought is that this judgment becomes the vehicle by which the investigator’s analysis of that issue becomes publicly available.

[99]     I also acknowledge that disclosure of where A was at the time of the alleged leaking of papers, together with where he had worked prior to that, is likely to identify A to those who know him well enough to recall his jobs during the relevant period.  However, that group is likely to appreciate the difference between a report citing a suspicion of leaking documents, and a report that made a finding of responsibility for that conduct.  The prohibition on publication of any details that identify, or lead to the identification of, A would be breached by any media organisation, be it formal or informal, seeking to “join the dots” by publicising the outcome of any research as to those who worked where A worked, at the relevant times.

[100]   In all other respects, I intend to continue the prohibition on publication of A’s

name or any other details that might potentially lead to him being identified.

[101]   The on-going scope of suppression orders is a matter of some importance, relative to the whole rationale for the proceedings, and I therefore intend providing the judgment in an embargoed form to counsel for the parties, to afford them an opportunity to make submissions on alternative forms of suppression orders that are to apply from the issue of this judgment.  The interim orders I made on 19 April

2013 are to remain in place until 5pm on Thursday, 9 May 2013.

Costs

[102]   I will receive memoranda from counsel if a claim or claims are pursued but my provisional view is that costs should lie where they fall.

Dobson J

Solicitors:

Lee Salmon Long, Auckland for applicant

Crown Law, Wellington for respondents

Counsel:

J S McHerron, Wellington