60 minutes

June 11th, 2012 at 12:00 pm by David Farrar

Did you watch 60 minutes last night? What were your impressions?

Questions for ACC

June 5th, 2012 at 5:14 pm by David Farrar

The Herald further reports:

The Accident Compensation Corporation maintains “a threat had been made” by former National Party insider Bronwyn Pullar at December meeting at which a massive privacy breach was discussed.

Police this morning confirmed they would not press charges against Ms Pullar in relation to the meeting where ACC managers claim Ms Pullar threatened to go to the media about the privacy breach unless she was given a two year guaranteed benefit.

“After careful consideration of the evidence now available and a separate legal review of the facts we have determined that no offence has been disclosed,” Police Assistant Commissioner Malcolm Burgess said in a statement. …

An ACC report on the meeting found Ms Pullar “proposed in relation to her own individual case she would like to negotiate a guaranteed benefit payment for two years”.

“She made threats that if her demands weren’t met, she would not return the information and would inform the media.”

ACC Chairman John Judge this afternoon said he was completely satisfied the report was a “complete and accurate” account of what took place at the meeting.

“Our staff at the meeting considered that a threat had been made… They felt pressure.”

ACC chief executive Ralph Stewart said the corporation had “zero tolerance of wrongdoing and we felt obliged to seek an independent opinion to confirm whether there was wrong-doing that was sufficiently serious for Police to lay charges”.

“Should ACC be confronted with a similar situation the same action will be taken,” he said.

I find this situation deeply suspicious, and think the Minister should start looking for new board members. Here’s some questions I have:

  1. If ACC felt there was blackmail at the December 2011 meeting, why did they wait until March 2012 to complain to the Police? Surely they should have rushed down there the next day, rather than three and a half months later.
  2. Why did they only complain to the Police, after media stories of their privacy breach was made public? If the complaint was not made to discredit the complainant, why was the complaint made just days after the media story?
  3. Why did ACC make public their Police complaint? Have they ever publicised any other complaint to the Police?
  4. Does ACC consider a disgruntled complainant who threatens them with bad publicity is breaking the law in doing so? If so, then do they consider it against the law to criticise ACC publicly?
  5. Can ACC reconcile the report from their managers about the meeting, with the tape recording made of the meeting?
  6. Can ACC point to what part of the transcript of the meeting constitutes blackmail as they alleged?
  7. Considering the Police have stated that “no offence has been disclosed”, do they not accept they were wrong to complain to the Police?
  8. Did ACC  seek any independent legal advice before deciding to lay a complaint with the Police? If not, why not?
  9. Does ACC condone the use of complaints to the Police in future, if a customer “pressures” staff?
  10. Once again, why did they wait three and a half months to complain to the Police, and only after negative media stories emerged on their privacy breach?

If I was on the ACC Board I would be demanding management answer these questions.

Pullar not charged

June 5th, 2012 at 11:50 am by David Farrar

Adam Bennett at NZ Herald reports:

Police will not press charges against Bronwyn Pullar, the former National Party insider at the centre of a massive privacy breach at ACC, the Herald understands.

If this is correct, then I think it will raise issues around whether the complaint to the Police was in good faith, or an attempt to punish a persistent critic of ACC. I personally won’t jump to conclusions until at a minimum the Police give details behind their decision, and preferably the full file is released publicly.

The ACC recording

April 30th, 2012 at 7:52 am by David Farrar

Phil Kitchin at Stuff reports:

A recording of a critical meeting between senior ACC managers and the whistleblower who exposed a massive privacy breach reveals the corporation misled its minister and the public.

The corporation has alleged that client Bronwyn Pullar threatened at the meeting to go to the media unless she was given a guaranteed two-year benefit.

It also alleged she said that she would withhold details of the breach involving private details of 6500 other clients – including sexual abuse victims – if her demands were not met.

Once details of the privacy breach were revealed by The Dominion Post, the ACC referred its extortion allegations against Ms Pullar to police.

However, a recording of a key meeting in December between Ms Pullar, her support person Michelle Boag – a senior National Party figure – and two ACC managers is at odds with the corporation’s claims that were included in a report ordered by ACC Minister Judith Collins.

The ACC was given a transcript of the meeting more than three weeks ago, but has refused to correct its report.

Ms Pullar said it was outrageous that, having been provided with the recording, the corporation was refusing to correct a “blatant lie” on a public report. …

The Dominion Post has heard the recording and had obtained an accurate transcript of it. It contradicts several key elements in the ACC report.

The transcript shows:

Neither Ms Pullar nor Ms Boag threatened to go to the media or withhold the data if Ms Pullar was not given a guaranteed two years’ compensation.

ACC’s statement that it was not given specific details of the breach is misleading. ACC was told the data was “highly sensitive information”, including names and details of 6500 claimants.

If ACC have filed a complaint with the Police based on incorrect information, then this is a serious matter.

But Ms Pullar said that the allegation was a misuse of power and “an attempt to smear Michelle Boag’s and my reputation”.

“Had I not recorded this meeting, it would have been ACC’s word against mine.”

Media lawyer Steven Price said the tape was recorded legitimately because Ms Pullar was a party to the conversation at the meeting.

Parties to a conversation cannot be guilty of illegally recording a conversation using an interception device.

I look forward to the completion of the various reports and inquiries so we the public get a better understanding of what actually has happened.

Two further developments in the ACC saga

March 30th, 2012 at 8:59 am by David Farrar

Adam Bennett at NZ Herald reports:

Prime Minister John Key was last night dragged into the widening ACC scandal and forced to deny a report he was part of a group of senior National Party figures who backed Bronwyn Pullar’s bid for a $14 million insurance payout. …

TVNZ current affairs programme Close Up last night said it had received a letter written by Sovereign Insurance to former National Party president Michelle Boag in 2007.

The letter named 28 people, among them prominent National Party figures including John Key and former Prime Minister Dame Jenny Shipley, as supporters of Ms Pullar as she sought a $14 million payout from the company in relation to injuries she suffered in a 2002 cycling accident.

The claim, Sovereign said in the letter, was “greatly in excess of her entitlement”.

Ms Boag is a long-standing friend of Ms Pullar who supported her during her battle with ACC, including attending a December meeting with ACC which has sparked investigations by the police and the Privacy Commissioner.

In the letter, Sovereign noted, it had been given a list of members of Ms Pullar’s “claimed support/advisory team”.

The list included Sir Selwyn Cushing, Mr Key, Dame Jenny and Dr Wayne Mapp.

Mr Key was at the time the Leader of the Opposition.

He has said he met Ms Pullar when he first entered politics – which was shortly after her accident – but had not had any contact with her since he became National Party leader.

Last night, he issued a statement saying: “I have not been involved in any ‘claims support’ or ‘advisory team’ for Bronwyn Pullar.

“The claim in the letter that I was part of such a team in 2007, or indeed any other time, is wrong.”

I have no doubt that John Key was in no way part of any support group or advisory team. I can only assume that any high profile person who expressed sympathy for Bronwyn’s position, was claimed to be a member of said support group.

It is worth noting that this is a letter from Sovereign, not to Sovereign. Also Sovereign did not say exactly who gave them “the list”. The most benign explanation is that these names were mentioned at a meeting, and Sovereign mis-interpreted their status. A less benign explanation is that this was a seriously bad case of trying to big-note it, and worse not just big-noting it but getting it wrong. Claiming the support of the then Leader of the Opposition when he has done no such thing, is incredibly poor judgement to say the least.

Meanwhile, it was reported that when Ms Pullar emailed Dr Smith’s letter to ACC in support of her claim last year, she did so using software enabling her to track each time it was opened and who it was forwarded to without the knowledge of the email’s recipients.

Internet security expert Peter Gutman, of Auckland University, said such “web bugs” were uncommon.

“Spammers use it on a massive scale, and beyond that it’s used only by security geeks.”

This is is an interesting aspect. My comments are based on the media report, and one can not be conclusive without knowing exactly what software was used, and how it works.

I’m not a lawyer but am fairly familiar with S252 of the Crimes Act as InternetNZ lobbied for it to be passed. It says:

Every one is liable to imprisonment for a term not exceeding 2 years who intentionally accesses, directly or indirectly, any computer system without authorisation, knowing that he or she is not authorised to access that computer system, or being reckless as to whether or not he or she is authorised to access that computer system.

Depending on the software it is arguable that use of such tracking software could be an offence. Of course Outlook also has features where you can get read receipts for your e-mails. But Outlook asks the recipient do they wish to allow a read receipt to be sent.

If receipts of some sort are being forwarded from ACC’s computer system, without their authorisation, that is arguably a form of access. I’m not saying any offence has been committed. I’m saying that depending on the software used, there could be an arguable case.

Influence is never in writing

March 26th, 2012 at 12:00 pm by David Farrar

Labour are saying that Nick Smith may have intervened on behalf of other friends, and that there needs to be an inquiry to determine this. Personally I thought his letter on behalf of Pullar made it pretty clear how reluctant he was to do anything. But it has also dawned on me that the fact he actually wrote a letter actually strongly implies that he was not trying to improperly influence things for Pullar. Why? Well, because he did in fact put it in writing.

If Nick had really been trying to screw the scrum for Pullar, the last thing he would have done is sign his name to a letter acting as a referee for her health before her accident.

If a Minister wants to push a department or agency in a particular way, they do not leave fingerprints. This will be officially denied, but ask any former Ministerial staffer from either party.

If Nick had really wanted to get ACC to give Pullar special treatment, he would have had his minsierial advisor phone the CEO. The ministerial advisor would say something like “The Minister is very concerned about this case”. That is code for “fix it”. They might say stuff like “The Minister is concerned that this could become a high profile story” and “The Minister wants to protect the PM who is constantly getting lobbied on this issue” or “The Minister thinks it would be prudent to assure yourself that the claimant has got everything they are entitled to, and has not been disadvantaged by ACC’s actions”.

Now none of this changes the fact that Nick’s actions in writing the reference were not acceptable. But in terms of motivation, I do think that they do show his intention wasn’t to apply improper pressure on ACC.  He was trying to placate Pullar. Otherwise he could have just got one of his staff to make a discrete phone call.

And no, I am not saying that agencies will break the law or even their own policies just to please a Minister. However many decisions are subjective and can go either way. It is in those situations, that Ministerial desires can have an impact.

Pullar’s grievances

March 24th, 2012 at 10:25 am by David Farrar

The Dom Post has published the list of grievances that Bronwyn Pullar has against ACC. They are:

  1. Repeated non disclosure of correspondence regarding Bronwyn’s claim when requested.
  2. Extensive disclosure of other claimant’s information to Bronwyn
  3. No ability to restrict unauthorised access by 2500+ ACC staff and contractors to files, or medical files
  4. Medical records (considered in law to be the most sensitive of personal information) are not given protection which is appropriate to their status and are treated as general documents.
  5. Lack of procedure around dealing with statements of correction to incorrect reports
  6. Threats of legal action against Bronwyn’s GP for refusing to disclosure non-injury information. Misuse of criminal provisions in ACC legislation.
  7. Collection of information for an unlawful purpose
  8. False written and oral statements by ACC staff with the purpose of unlawfully procuring medical reports for pecuniary purposes.
  9. Defamatory statements by ACC employees
  10. Exceeding lawful powers by investigating injuries for which no claim has been made.
  11. Derogatory emails by ACC staff
  12. Excessive Access to Bronwyn’s files – 1948 accesses within 3 ½ years, by about 150 different individuals, of which 1100 were in a single one year period.
  13. Staff accessing files against management instructions
  14. ACC167 Consent – used to coerce claimant’s into authorising otherwise unlawful collections of information.
  15. Collection of personal information without claimant’s knowledge &/or attempted collection without knowledge
  16. Collection and attempts to collect information unrelated to injury/claim
  17. Imbalanced and biased decision making by Corporation
  18. Covert/inappropriate communication to assessors which bias & negatively influence outcomes against claimants
  19. Decision making without reviewing EOS
  20. Lack of workability of electronic medical file for lawfully compliant decision making
  21. Coercion, Harassment & Bullying, Unreasonable approach in management of claims. Use of threats of disentitlement to coerce
  22. Dictatorial approach of Case Managers, failure to make reasonable accommodations for claimant needs.
  23. “cherry picking” of unfavourable phrases from medical reports which contradict the ultimate conclusion.
  24. ACC abusing its monopoly position by limiting the pool of qualified medical assessors to a select group (some individuals assessors are paid up in excess of $1 million annually for services), leading to the appearance of bias and unfair market practises.
  25. Failure to demand adherence of staff to State Services Code of Conduct and to take appropriate action for  breach
  26. Failure of Office of Complaints Investigator to independently investigate complaints
  27. Failure of Office of Complaints Investigator to follow a reasonable process when conducting investigations
  28. Failure of Office of Complaints Investigator to validate the responses provided by ACC with the claimant for accuracy
  29. ACC’s case management approach to Bronwyn is disruptive and destructive of her ability to rehabilitate/work part-time
  30. ACC staff deliberately lying and writing false reports
  31. ACC staff making clinical decisions without appropriate qualification
  32. ACC staff making clinical assessments without medical competency
  33. Deliberate interference in independent medical assessments
  34. Prejudicial correspondence with independent assessors prior to assessments communicating ACC’s desired outcome – that injuries are spent &/or due to non-injury causes
  35. Provision of unqualified, non-specialist opinions, by ACC internal medical advisors, contradicting existing specialist advice, prejudicing independent assessors and compromising their independence
  36. Branches/Units having Case Managers who made an initial decision then conduct an administrative review of a matter before being sent to DRSL for review
  37. Taking advantage of disabled claimants for actuarial/financial gain
  38. Poor decision making which adds cost to the Corporation
  39. Poor OCI processes which adds cost to the Corporation
  40. Lack of flexibility over assessments/appointments/referrals
  41. Lack of reasonable consultation and flexibility over assessments/ appointments/referrals
  42. Unreasonable referrals/assessments  processes which are exploitative e.g., chaperones, multi-party assessments, lack of privacy & dignity;
  43. Focus on avoiding liability at the expense of effective early rehabilitation
  44. ‘Silo’ culture where case managers are unaware of ACC’s own research into rehabilitation best practice
  45. Constant churn of case managers – each new case manager is unaware of the medical evidence on file leading to poor decision making and is unaware of claimant’s issues; Avoidance strategy for accountability of actions.

In a related story, the Dom Post notes:

ACC’S computer storage of its clients’ confidential medical records is “so primitive” the records can be viewed by virtually every employee from a mailroom assistant up.

The corporation relies on reminding its staff they should not look at files they are not supposed to view on its EOS claims management system as one way of protecting privacy.

It seems they can not prevent access to confidential medical records.

Nick Smith resigns

March 21st, 2012 at 2:02 pm by David Farrar

Nick Smith has just announced to the House he has resigned as a Minister of the Crown, and John Key has accepted his resignation.

A sad end to his ministerial career.  It’s a stark reminder that Ministers must be like Caesar’s wife – above suspicion, in matters of personal advocacy – especially in your own portfolio area.

Nick has a very solid record of achievement as a Minister in the 4th and 5th National Governments. He should be proud of his achievements in diverse areas. He will be missed as a Minister by his colleagues.

More on the ACC saga

March 21st, 2012 at 12:29 pm by David Farrar

I blogged yesterday:

As Nick has now conceded it was an error of judgement. You can quibble over the fact the letter was to independent medical assessors, not ACC. But the reality is Nick should have declined to write the letter at all, just as he had also declined to intervene with ACC. There were many other people who could write a letter about how Bronwyn was before her accident.

Doing the letter on parliamentary letterhead compounded the failure of judgement.

I also blogged:

While a failure of judgement, I was pleased to see a journalist tweet that David Shearer had declined to say he thinks the lapse in judgement was serious enough to warrant resignation.

Since then Shearer has changed his stance. Patrick Gower blogs on it, saying Shearer had a shocker.

I also blogged:

 I’m not actually against a fuller independent inquiry, because while I do not think anyone has acted with malign motives, the perception is that it is very murky and sunlight is the best disinfectant. However it might be that the Privacy Commissioner inquiry will be wide enough.

I am now of the view that an independent inquiry, at a minimum, is necessary. The Privacy Commissioner can only cover the privacy issues around the data breach, and can not cover the wider issues. The speculation on the nature of the friendship does raise issues that need to be dealt with.

If the terms of reference were wide enough, it could in fact cover the entire history Pullar has with ACC (something she wants). Not often I quote Bomber Bradbury, but I think he is correct when he says:

Even National Party activists deserve to be treated with dignity and watching ACC throw Bronwyn to the Police over a faked allegation that she threatened to expose ACC negligence in return for compensation boils my blood. I say faked because the doyenne of the right, MFB (Michelle Fucking Boag) was in that meeting. Say what you will of ‘chelle, but she ain’t stupid enough to rock up to ACC in the capacity of a support person and threaten them with a bribery option. …

 through their own negligence they release confidential papers and when called on it, bully and intimidate a woman who has an existing complaint against them. 

This doesn’t change my view that Pullar shout not have retained the data, but it doesn’t mean ACC have behaved correctly either.

A full independent inquiry could cover:

  • Consideration of Pullar’s grievances against ACC
  • How the data breach to her occurred, and how it can be prevented in future
  • Pullar’s actions with the data, and what happened at the meetings held with ACC
  • Smith’s interactions with Pullar over her grievances
  • Anything else the QC deems relevant

This may not be an attractive option to the Government. Personally I am of the view that Nick’s ill judgement was motivated by compassion, and there are no malign motivations involved. However others will suggest different motives, and for that reason I don’t think the issue will go away, unless there is a full inquiry, or some other form of accountability.

UPDATE: Cactus Kate has an interesting blog post on the issue. She picked Bronwyn up from the hospital after her accident, so speaks from some first hand knowledge.

The ACC saga

March 20th, 2012 at 2:40 pm by David Farrar

I’d not yet blogged on the ACC saga as there were not enough facts out there to form conclusions on. I also have been wary as I know reasonably well several of the people involved – Bronwyn Pullar, Michelle Boag and Nick Smith.

Like  many in National I knew Bronwyn before her head injury nine years ago. Head injuries can leave people massively affected, and this has been the case for Bronwyn.  My mother practised as a neuropsychologist and was involved in the Head Injury Society, so through her I have gained a reasonable lay understanding of head injuries, and especially how many people never fully recover from them.

It is precisely for injuries like Bronwyn suffered that we have ACC. Now Bronwyn has felt for some years that she had been badly treated by ACC, and also her private insurers off memory. Her battles with them have to some degree become quite consuming for her. I don’t know the details of all the issues, but I will say that from what I do know I think Bronwyn has had some legitimate grievances. That doesn’t mean all the grievances are legitimate – I am not in a position to judge that.

Having set out that background, I do believe Bronwyn made an error of judgement when she was accidentially e-mailed an ACC spreadsheet which included some client details. The correct thing to do would be to immediately notify ACC, and delete the file. It would be fine to perhaps record down a few details from them as proof the data breach occurred, and complain to the Privacy Commissioner. But retaining the data was unwise.

The fact that there is a dispute over who was laying down conditions over its return, reinforces to me that deleting or returning the data was what should have happened.

There has been some focus on the role of Michelle Boag. Yes Michelle is a former National Party President, but that was a decade ago. For much longer than that she has been Bronwyn’s friend. I do not accept that a former party president can not be a support person to someone dealing with a government agency.

It is entirely natural, and in fact advisable, that someone with a head injury has a support person along.

Then we have the letter from Nick Smith, which the Herald has online here. As Nick has now conceded it was an error of judgement. You can quibble over the fact the letter was to independent medical assessors, not ACC. But the reality is Nick should have declined to write the letter at all, just as he had also declined to intervene with ACC. There were many other people who could write a letter about how Bronwyn was before her accident.

Doing the letter on parliamentary letterhead compounded the failure of judgement.

While a failure of judgement, I was pleased to see a journalist tweet that David Shearer had declined to say he thinks the lapse in judgement was serious enough to warrant resignation. It isn’t, and it is good to see Shearer not trying to beat this up, beyond the rightful criticism that is due. If there was some suggestion of self-gain, then it would be a different matter.

The Privacy Commissioner is going to investigate this issue, and she is independent. It remains to be seen how wide her terms of reference will be. I’m not actually against a fuller independent inquiry, because while I do not think anyone has acted with malign motives, the perception is that it is very murky and sunlight is the best disinfectant. However it might be that the Privacy Commissioner inquiry will be wide enough.