Bryce Edwards: The Astonishing Government suppression of Nash’s email

It’s truly astonishing the way that the Government has been able to suppress evidence of business donors gaining special access to Cabinet information.

Now that Stuart Nash has been fired from Cabinet for leaking sensitive information to individuals who funded his election campaign, the focus has shifted to why this information was kept from the public back in 2021. It turns out that the Prime Minister’s Office knew Nash had given privileged information to donors. Furthermore, the PM’s Office played a central role in preventing that information from being released to a journalist who specifically asked for it, and should have received it, under the provision of the Official Information Act.

The Nash scandal is now far wider than the ex-minister, and there are fundamental questions about the role of the Government in allegedly covering up the misuse of public office for vested interests. Labour politicians are calling the suppression of official information a “stuff up” due to “human error” in the PM’s Office, while the National Opposition is calling it a “conspiracy”, and demanding an inquiry into what looks like “corruption”.

The Facts of how unlawful political-donor communications were suppressed

Sometimes the details of scandals involving breaches of ethics and integrity can become mired in overly complicated minutiae and competing allegations. Therefore, it’s worth outlining the astonishing facts about what has happened in the Nash scandal:

• Two businessmen gave donations to Cabinet Minister Stuart Nash to help his election campaign
• Nash subsequently sent an email to those donors detailing Cabinet inside information, breaking Cabinet rules
• A journalist then requested copies of any emails between Nash and the donors and, under the Official Information Act, he was legally entitled to receive these
• Nash’s office decided to withhold the email to the donors based on the incorrect notion that they weren’t legally required to relinquish it. They deemed that the Cabinet information was sent by the Minister in his capacity as a local MP
• In declining to release the Nash email, Nash’s office checked three times with the staff in the Prime Minister’s Office, including Jacinda Ardern’s deputy Chief of Staff
• Ardern’s staff agreed with Nash’s staff about withholding the email, and say they didn’t inform either the Prime Minister or the Chief of Staff about the existence of Nash’s email or the decision not to release it to the media

“Disturbing, staggering, mysterious, outrageous”

The Herald’s Thomas Coughlan has labelled the latest revelations about the suppression of official information as “disturbing”, and says National’s allegations of a coverup are “staggering”. He explains that the Government successfully withheld the Nash email on the (incorrect) grounds “the email was written in Nash’s capacity as a Labour MP, rather than as a minister – and the OIA only applies to ministerial material.” He points out that the Government isn’t disputing that this decision was incorrect.

So why did the information get wrongly suppressed? Labour is claiming it was “human error” by staff in the two ministerial offices, and presumably Nash himself. Labour has pointed to the Beehive staff being overworked and not having enough resources to deal properly with OIA requests from journalists. Covid has even been offered as an excuse.

Many others don’t accept that it was an oversight. For example, Coughlan isn’t quite buying the line from the PM’s Office that it was a mistake, saying today: “it’s very hard to believe that not one of the multiple staff who saw and handled the damning email on multiple occasions ever once understood that it needed to be released”. He says that if the genuine explanation is one of “incompetence” at the top of the Beehive, then this is also “staggering”.

The other explanation is even more disturbing – that the Labour Government deliberately conspired to cover up the violation of Cabinet rules and what might look like a “cash for Cabinet access” fundraising scenario.

National deputy leader Nicola Willis made the coverup allegation yesterday in Parliament. Willis accused Labour of a “conspiracy between a minister’s office and the Prime Minister’s Office to decide to hide information from the New Zealand public”.

Most commentators seem to be incredulous that the senior staffers in the PM’s Office regarded it as unnecessary to raise with their boss that a journalist’s request for information about political donations had produced an email from Stuart Nash to two of his donors providing sensitive Cabinet information.

Likely that the PM’s Office wanted to prevent a scandal

It’s hard not to conclude that the staffers saw Nash’s email and the journalist’s request for it and realised an enormous scandal would occur if it was released. Quite simply the OIA request and what it uncovered was clearly explosive. And this led to numerous discussions about political management – the email was referred three times to the PM’s Office, in this sense receiving the serious attention it deserved. It certainly wasn’t a case that the Nash email simply fell through the cracks unnoticed.

The staffers who dealt with the Nash email were very senior, which means that they are very unlikely to have missed the significance of the issues at hand. One expert on the OIA, Greg Treadwell from AUT, is quoted today saying “You don’t get to be a senior adviser on OIA requests unless you are pretty experienced.”

It was Ardern’s Deputy Chief of Staff, Holly Donald, who was ultimately responsible for the decision not to allow the Nash email to be released to the media. She was also in the news in August last year when rebel Labour MP Gaurav Sharma alleged that the PM’s Office was coaching MPs about how to get around the OIA.

According to Sharma, Donald was the person who led a Beehive coaching panel to help MPs understand the OIA and how to stay within the boundaries of the law in their communications and release of information. Donald’s expertise in navigating the OIA means it’s unlikely she made a “human error” in suppressing the Nash email.

In order to believe that Ardern’s Deputy Chief of Staff didn’t understand the problematic nature of the Nash email and the ramifications of releasing it to a journalist investigating political donations, you would have to believe that she was incompetent. If she decided not to elevate the email to her boss, then she would have been in clear dereliction of her duty.

Of course, it is possible that Donald did in fact elevate the issue to either Ardern or the Chief of Staff, and the public isn’t being told of this. Alternatively, Donald was fully aware of the need to keep the Nash email from her superiors, so that there was plausible deniability for the Government.

Does the Beehive have a culture of suppressing public information?

The Spinoff’s Toby Manhire has also expressed shock at the latest revelations about the deliberate suppression of the Nash email – saying it is “is mysterious – or, to put it another way, outrageous” and what has occurred is “an act of dissembling at best, straight out deceit at worst.”

Manhire believes that National’s application of the term “cover-up” now has merit, and the scandal should call into question whether the public can trust that the OIA isn’t being seriously abused by the Government: “just how often are OIA requests unscrupulously denied, stonewalled, ruled out of scope, for sheer, naked, political expediency? How often is official information withheld in defiance of the law, in affront to public scrutiny?”

Similarly, Thomas Coughlan writes today that the latest revelation “leaves the Government facing unsettling questions about probity: How many information requests have seen information withheld that should have been released? And worse still: Whether this was by accident or whether the Government has a broader culture problem around the release of official information.”

Official Information Act abuse and reform

The Official Information Act is meant to allow the public to be informed about what goes on at the highest levels of decision-making in New Zealand. It’s intended to create open government. And yet this latest scandal has come out due to the official information being leaked.

There will now be increased calls for reform of the OIA. Writing today for Newsroom, Marc Daalder says “These systemic flaws in the official information system mean we still have no idea how common it is to improperly withhold information as Nash may have done”. Due to the OIA’s weaknesses, Daalder says “It’s much harder to tell how common breaches like Nash’s are, by virtue of the secrecy”.

Confidence in the Ombudsman’s office in dealing with abuses of the OIA will also take a big hit from this scandal. The Ombudsman is supposed to be the watchdog on misuse of the OIA, but in this case appears to have allowed the misuse to occur, even after a complaint was made by the journalist involved. It now appears that the Beehive was easily able to fob off the Ombudsman’s office with weak justifications for suppressing the Nash email, and at this stage, it appears that the Ombudsman didn’t even insist on seeing the full Nash email before making a decision not to investigate.

The Ombudsman’s Office has indicated that they are now reviewing the case. Their office needs to take strong action to uncover how such a serious breach of the OIA has occurred, and how their own office became party to this.

An inquiry should occur. And as National-aligned political commentator David Farrar says, “we need a full inquiry into this led by a QC with powers to compel testimony and potential perjury charges for anyone who gives false testimony.”

Leftwing blogger No Right Turn is also incensed by what has occurred, arguing “it’s clear that the announced review into what else Nash might have corruptly disclosed isn’t enough; we also need a full investigation into Labour’s handling of OIA requests. And if this government won’t do it, I’d hope the next one will.”

The blogger says: “the PM’s staff’s willingness to overlook this calls every OIA judgement they have ever made into question, and suggests they are systematically illegally withholding information on political grounds.”

He raises the question of whether the OIA now needs to include criminal penalties which could apply for deliberate non-compliance. The blogger explains: “this is a perfect example of why the OIA needs criminal penalties for deliberate violations. Canada does this, with the Access to Information Act having a penalty of two years imprisonment for those who, with intent to frustrate a request, conceal, falsify or destroy records. We should do the same, to deter such behaviour and enable public servants to stand up to illegal demands from their political masters.”

It’s also worth mentioning that Chris Hipkins was in charge of open government when these OIA breaches occurred. He has also admitted that the legislation needs “more teeth”. The Government had previously promised to undertake a review of how to strengthen the OIA, but this has been continuously delayed.

Today, Toby Mahire appeals to Prime Minister Hipkins to add OIA reform back into the Government’s urgent reform agenda, and explains why: “What often looks like an esoteric subject of interest to few has suddenly emerged as emblematic of something much bigger, going to the heart of the probity, integrity and basic honesty of government.”

Problems for the Prime Minister

In dealing with the burgeoning scandal, the Labour Government’s new strategy is to blame everything on Stuart Nash. He certainly deserves blame for his involvement in it all. But he’s also now being used as a convenient fall guy for what seems like unethical behaviour in other parts of the Beehive.

It’s not clear that this strategy of blaming Nash for it all will wash. For instance, broadcaster Tova O’Brien responded to these events yesterday, saying “Something is very rotten. And just because Hipkins has cut out the source of the rot, I’m not feeling particularly assured that the government’s going to get to the bottom of how deep that rot goes.”

She also says that the public shouldn’t allow the Prime Minister to hide behind the fact that he’s launched an investigation. Hipkins has been refusing to answer questions about the scandal on the basis that he will “await the outcome of that review before making any further decisions or comment on it”. Commenting on this, O’Brien says it’s “beyond appalling that the PM is using that as a smokescreen to hide behind and avoid accountability now.”

Increasingly political commentators and journalists are using words like “stench” and “rottenness” in regard to the Government’s Nash email scandal. Hipkins will be forced to take the issue much more seriously than he has been if he’s to avoid his reputation being tarnished and his government associated with the smell of corruption.

Image credit: Kat Smith

Dr Bryce Edwards is a lecturer in Government and Public Policy at Victoria University of Wellington. He is the director of the Democracy Project.