Kiwiblog

I take what is probably a final look at the Hollow Men e-mails in NBR 24/7 this week:

The illegal (and it was almost certainly illegal) obtaining of the e-mails, and their subsequent publication, had a major impact on New Zealand politics. They effectively forced Don Brash out of the leadership of the National Party, despite the fact National was ahead of Labour in the polls at the time.

It is very unusual for an Opposition Leader to resign, when his party is leading in the polls. And the Hager book based on the e-mails did not in fact have any smoking guns. However, Brash correctly judged that he would have been unable to make traction in the face of the book, and resigned.

If Brash had not resigned, it is quite possible National, under his leadership, would have gone on to win the 2008 general election, and while it is conjecture what policies a Brash-led government would have had, suffice to say that it is hard to imagine it being happy to borrow $240 million a week to fund interest free student loans and working for families.

And the usual conjecture on how they were obtained.

NZPA report:

Police have failed to find the source of the leaked Don Brash emails.

A police review of the investigation, involving almost 200 interviews, into the publication of the leaked emails from the then-leader of the National Party has been completed and the source of the emails could not be established. …

Almost 200 interviews were conducted with parliamentary employees, including I&T, security, messengers, cleaners and contractors, along with a number of other people, to corroborate information gathered in the original investigation.

Although no suspect leads were identified, the interviews did provide evidence of unsatisfactory security on the third floor both in terms of access to the floor and offices and to individual computers. These afforded opportunities for access to a range of documents, both hard copy and electronic.

We may never know the truth. I did ask Nicky Hager, when I last saw him, to consider revealing who did it and how, after that person/s has died, as he has a duty to history to reveal.

The Police have noted there was unsatisfactory security on the third floor. I believe the most likely way it happened was someone who does not work on the third floor, got in there and swiped the e-mails. It would have taken around two minutes to stick a flash drive in a PC and copy the Outlook file over.

I blogged on the 8th of July some basic steps that I believed the Police should have done in investigating the stolen Brash e-mails:

1. Compile a masterlist of every document referenced in Hager’s book
2. Sort them into groups – e-mails, faxes, etc
3. For the e-mails record down when each e-mail was received, and when it was deleted if it was. This will provide a window of time as to when the theft occured.
4. Also for each e-mail record who has access to it. Who was cc’d or bcc’d it. Who had access to a printed copy.
5. Look for common patterns in access, to try and narrow down which e-mail account or accounts were probably accessed
6. Look at the date of the final document used in the book. It is likely the theft took place soon after that.
7. Obtain staff lists for National during that period. Look especially at anyone who joined just before the thefts occurred.
8. Obtain swipe card records for the Leader’s Office for the period just after the final documents cited.

As far as I know, the original inquiry did none of this. Don Brash has a complaint with the IPCA over the inadequacy of the investigation.

Tracy Watkins from the Dom Post reports that the Police appear to have reopened their investigation, which is an implicit acknowledgement of the failings of the original investigation:

Police have been interviewing parliamentary cleaners and security guards after reopening their investigation into the Don Brash email files.

A team of up to four police officers has been involved in the investigation which is understood to have been reopened several weeks ago after Police Commissioner Howard Broad put one of his top officers, assistant commissioner Steve Shortland, in charge of reviewing the Brash file.

MPs and parliamentary staffers are expected to be interviewed as well. It is understood the Independent Police Conduct Authority is also investigating after a complaint from Dr Brash.

I’m not sure whether the investigation will reach any conclusions, as the theft happened around four years ago, but it is pleasing to see they are at least trying.

The Police Complaints Authority is investigating the adequacy of the Police investigation into the Don Brash e-mails. As far as one can tell from the released file, the Police did nothing beyond chatting to half a dozen people.

From what I can tell, there was no forensic examination of the evidence – something that should have been the first step taken by the Police. What do I mean by this – I mean an investigation of what actual documents Nicky Hager gained a copy of.

Hager helpfully supplied around 1,000 references in his 350 page book. The very first step of a semi-competent investigation would be to examine the documents referenced. Here is what I would have done:

1. Compile a masterlist of every document referenced in Hager’s book
2. Sort them into groups – e-mails, faxes, etc
3. For the e-mails record down when each e-mail was received, and when it was deleted if it was. This will provide a window of time as to when the theft occured.
4. Also for each e-mail record who has access to it. Who was cc’d or bcc’d it. Who had access to a printed copy.
5. Look for common patterns in access, to try and narrow down which e-mail account or accounts were probably accessed
6. Look at the date of the final document used in the book. It is likely the theft took place soon after that.
7. Obtain staff lists for National during that period. Look especially at anyone who joined just before the thefts occurred.
8. Obtain swipe card records for the Leader’s Office for the period just after the final documents cited.

I’m not saying this would work out who did it. I’m saying this is the minimum first steps you would expect in a competent investigation – work out what documents were stolen, work out who had access to them, work out whether they were in electronic form or also existed in hard copy, and work out when they were probably stolen. This is basic stuff.

By failing to do this the investigation was, in my opinion, doomed to fail, Asking half a dozen people whether or not they will tell them who gave them the e-mails was never going to find anything. A proper detailed forensic approach to the investigation could well have led somewhere, or even provided clarity as to whether the theft came about from a one off access to someone’s inbox, or whether it was more systematic than that.

I am going to be very interested in the report and findings of the Police Complaints Authority.

The Herald reports:

Former National Party leader Don Brash has welcomed a high-level review of the police investigation into how his private emails ended up in a book. …

Commissioner Broad said continued questioning of the police role could undermine public trust and confidence in the force.

He ordered a full review of the case, including the recent release of the highly edited file, to be conducted by Assistant Commissioner Steve Shortland of Auckland, with an independent adviser working alongside him. …

Dr Brash said he was happy with the steps being taken.

“I am very pleased at the police commissioner’s reaction,” he said.

“One of my major concerns was that the way the investigation was initially conducted suggested either incompetence or political bias and I think that’s dangerous for the police and not good for the country.”

Dr Brash said the senior appointment backed by the independent adviser to review the case went a “very long way towards satisfying my concerns”.

He was prepared to stop pressing for a commission – for now. He said the independent observer needed to be politically neutral and independent.

It will be interesting to see who is appointed.

Just received this PR:

DON BRASH
Media Statement

Thursday 21 May 2009
FOR IMMEDIATE RELEASE

BRASH REQUESTS COMMISSION OF INQUIRY INTO POLICE EMAIL INVESTIGATION

Former Opposition Leader and Reserve Bank Governor Don Brash has today written to Prime Minister John Key and Police Minister Judith Collins formally requesting a Commission of Inquiry into the conduct of the New Zealand Police in relation to their investigation into the theft of his emails and other correspondence, and their subsequent behaviour.

Dr Brash has proposed to the Prime Minister and Minister that the Commission inquire into and report upon the integrity of the police investigation into the theft, and their behaviour since publicly announcing the investigation was closed; and satisfy itself that the police acted at all times professionally and without political bias or interference.  It could not and should not seek to reopen or reactivate the investigation into the theft itself as that could be seen to cut across the role of the police or the role of the courts in determining criminal or civil liability.

“This is not about Don Brash.  There are important issues relating to every New Zealander’s privacy and the integrity of our political system that deserve resolution,” Dr Brash said.

“Everybody has a right to expect their correspondence will not be illegally intercepted or read by people it is not intended for.  That includes private individuals but it also includes political parties, business groups, trade unions and NGOs, all of whom need a degree of privacy in planning and discussing their ideas and strategies.

“In a democracy, everyone therefore has an interest in being assured that the police take such issues seriously.”

Dr Brash said that appeared not to have been the case with his correspondence.

“The heavily-censored information that was released to me and some media last week has added significant weight to my concern, held since I was briefed by police in mid 2007, that the investigation into this matter lacked any sense of urgency or diligence.

“Senior journalists who have reviewed what information has been made available have gone further, with the political editor of state-broadcaster TVNZ reaching the conclusion that it is suggestive of a ‘whitewash’ and ‘cover-up’ and the political columnist at the New Zealand Herald describing it as ‘a farce’.

“Others have contrasted the lack of urgency and diligence in this case with the heavy-handed approach to, for example, the Campbell Live case, where police obtained a search warrant for TV3’s premises following a re-enactment of an interview with a medal thief by broadcaster John Campbell.

“A contrast has also been made with how the police and indeed the intelligence services would respond – and should respond – to a breach of security involving the correspondence of the Prime Minister and how they responded to a case involving the Leader of the Opposition.  That contrast is not healthy in a democracy.”

Dr Brash said the police’s conduct since closing the investigation – or declaring it ‘inactive’ – was also of concern.

“The police’s behaviour has been highly unusual.  For example, despite promises in April 2008 that I would shortly receive the final report on the investigation, which I was then told was in draft form, I have only now – a year later – received heavily-censored information that is entirely without substance and which is dated January 2008.  I have also been told by friends and media who have sought information on the inquiry that the police have behaved with an extraordinary determination to keep all details of the investigation out of the public domain.

“I do not know why the police have behaved this way but it raises unhelpful suspicions about incompetence, lack of professionalism, political bias or a combination of all three.”

Any suggestion of political bias had to be addressed seriously, Dr Brash said.

“When she took office, Police Minister Judith Collins told the New Zealand Herald that she wanted to ‘make sure that [politicisation of the police] is only a perception’ and that she wanted to ‘get rid of that perception … because it’s not good for the police or for the country’,” Dr Brash said.  “I agree with her, which is why I have suggested that the inquiry be required to satisfy itself that no such politicisation affected the handling of my case and the subsequent unusual behaviour.”

Dr Brash said he believed the inquiry should be led by someone with an impeccable reputation for political evenhandedness so that it would not, itself, be seen as a form of politicisation.

Commissions of Inquiry are relatively common in New Zealand and can be established under the Commissions of Inquiry Act 1908.  That Act enables them to inquire into any matter of major public importance or concern to the government-of-the-day.  A Minister may propose an inquiry to Cabinet after consulting with the Prime Minister and the Attorney-General.  A Commission of Inquiry into police conduct was established in 2004 to carry out a full and independent investigation into the way in which New Zealand Police dealt with allegations of sexual assault by members of the police and associates of the police.  More recently, Police Minister Judith Collins considered launching an inquiry into allegations that police had been spying on peaceful protest groups.

END

By asking for the inquiry to be into how the Police conducted their inquiry, rather than into who stole the e-mails (which is a criminal matter), this allows it to be allowed within the guidelines in the Cabinet Manual.

I certainly hope the Government does agree to such a Commission of Inquiry. With a totally neutral and independent Commissioner (as Brash has said is needed), it will either expose problems within the NZ Police as to how they conducted this inquiry, or it will reassure the public that the Police did everything they could.

One part is worth repeating:

“Senior journalists who have reviewed what information has been made available have gone further, with the political editor of state-broadcaster TVNZ reaching the conclusion that it is suggestive of a ‘whitewash’ and ‘cover-up’ and the political columnist at the New Zealand Herald describing it as ‘a farce’.

And this is not the first time. The 2005 over-spending investigation (headed by the same officer) remains as an even worse investigation, where multiple errors of fact and law were committed – the worst being the failure to recognise the over spending was a strict liability offence – the law stated explicitly that over-spending must be prosecuted, even if unintentional (not that it was).

UPDATE:

Phil Goff has said John Key must take action:

Key must take action on Brash emails

Prime Minister John Key must put an end once and for all to years of speculation surrounding the source of the leaked Don Brash emails. …

“John Key opened the prospect of a Prime Ministerial investigation at this week’s post-Cabinet press conference. I ask him to make good on that,” Phil Goff said.

“There has been much rumour and innuendo, mostly from National Party sources, about who leaked the emails. John Key now has the opportunity to end this speculation.

“One of the quickest ways John Key can do this is to ask the police to release the unedited file of its investigation.

“Labour would welcome that. We have said from the outset that we had no knowledge of where the emails came from. We would like to know as much as anyone else who was responsible for the leaks. …

“Labour is calling for openness and transparency. John Key should ask the Police to release the information on this case in its entirety.”

I am not sure the exact action Goff is asking for can be done, and am not sure it would be adequate. I don’t think the PM can tell the Police how to intrepet the OIA.

But Goff has more generally said he supports some sort of inquiry. That means if National agrees to one, then presumably Labour won’t criticise its cost?

At the weekend I blogged agreement with Fran O’Sullivan that the Police inquiry into Don Brash’s stolen e-mails was a disgrace (and headed by the same officer who cleared Labour of ther $400,000 overspend in 2005 despite it being an offence of strict liability!).

However I disagreed with her that John Key and Judith Collins were somehow being unhelpful by not ordering an inquiry, pointing out the Police Act explicitly prevents the Minister of Police from giving directions over the investigation and prosecution of offences. You can be sure if that clause did not exist there would be new inquiries into Labour’s 2005 overspending!!

Whale Oil originally agreed with me, but now has done a backflip, saying that in a word first, he is wrong. He says:

In fact, Fran was right and I was wrong.

According to the Cabinet Manual and the Department of Internal Affairs’ very useful document “ Setting Up and Running Commissions of Inquiry“, any Minister, including the Police Minister, can set up a Commission of Inquiry. Commissions of Inquiry can inquire into any matter of major public importance or concern to the government of the day. Any Minister may propose an inquiry, but must consult the Prime Minister and the Attorney-General first, prior to submitting the proposal to Cabinet. Before giving its approval, Cabinet should seek advice form the relevant Minister’s office, the relevant department, DPMC and the Crown Law Office. …

PS. Over at Kiwiblog, Farrar made the same mistake. Will he admit he was wrong, and join WOBH’s call for an inquiry?

But I disagree with Whale. Neither the Police Minister nor the Prime Minister can set a Commission of Inquiry. The Cabinet as a while has to agree.  Fran said “It is within Key’s powers to direct an independent review of the police investigation” and it simply is not. The PM is not the Cabinet, and Cabinet have been known to over-turn PMs (except Muldoon). Lange for example often lost at Cabinet.

You can argue that Fran was right in saying [Police Minister Judith Collins] “has not asked for a review” but this implies her status as Police Minister allows her to do so. It does not. Sure she can ask the Cabinet for a commission of inquiry, but if you take it literally, and member of the public can ask for a review. The implication was that Collins had some special power to get a review. She does not.

Now people may say, why not a full Commission of Inquiry? Well 4.83 of the Cabinet Manual says:

While it is appropriate for inquiries to investigate instances of impropriety, they should not cut across the role of the police or the role of the courts in determining criminal or civil liability.

Now you could argue for a Ministerial inquiry – but they have no powers to compel witneses to tell the truth, so would be useless.

So I stand by my original post – neither Key nor Collins have the power to inquire into the Police investigation. I have little doubt both would love to know who stole the e-mails.

Nicky Hager has said that he got the information from six National party sources, all concerned about the party under Brash. I have always thought that beyond improbable. No one from National would choose to give e-mails to Hager, as oppossed to say the media. And while one can never rule out one disaffected staffer, the fantasy of six people all leaking to Hager is well a fantasy.

But here’s a challenge to Nicky. If he stands by his story, why doesn’t he agree to do a Deep Throat and pledge he will reveal how he got the e-mails in x years, or have the so called sources reveal it in their wills. Then one day the truth will be known.

Fran O’Sullivan writes:

Police HQ have repeatedly thumbed their nose at the former political leader by assigning a hopelessly inept cop (when it comes to prosecuting politically aligned crimes) to take charge of the investigation. The top cop was allowed to get away with tarrying for the best part of a year before getting down to business, then refusing to release the full file of his on-again off-again investigation.

The investigation was almost as pitiful as the investigation into Labour’s 2005 overspending.

Brash has had no help from Prime Minister John Key. It is within Key’s powers to direct an independent review of the police investigation. But though he was the direct beneficiary of Brash’s downfall he is reluctant to give the case oxygen.

Ummn which power is this?News to me that the PM can direct a review of a police investigation.

Brash has had no help from Police Minister Judith Collins either. Collins was Brash’s close political chum during the dying days of his leadership when it seemed as if he might just survive. But she has not asked for a review.

In her well intentioned sympathy for Don Brash, Fran has over-reached. I refer people to the Policing Act 2008, specifically s16(2):

The Commissioner is not responsible to, and must act independently of, any Minister of the Crown (including any person acting on the instruction of a Minister of the Crown) regarding—

(a) the maintenance of order in relation to any individual or group of individuals; and

(b) the enforcement of the law in relation to any individual or group of individuals; and

(c) the investigation and prosecution of offences; and

(d) decisions about individual Police employees.

The Minister can not interfere, and in fact it would be highly undesirable for Ministers to get involved in a case involving their former Leader.

If Ministers could get involved, then I am sure they would love the Police to redo their investigations into Painertgate, the 2005 overspending and the stolen e-mails.

To get some idea of how bad the Police investigation into the Brash e-mails was, just watch Guyon Espiner on Breakfast this morning. Guyon said:

• In my opinion, it’s a disgrace
• Almost nothing in there
• Contrasts Police refusal to release most info with the full release in other sensitive cases such as Paintergate
• Labels what the Police have released this time as a “cover up” and a “whitewash”
• Looks like Police did not want to find out
• Says file shows they only interviewed around half a dozen people

That is a damning indictment from the TVNZ political editor.

The Dom Post reports:

Police national headquarters confirmed this week that the file’s release was imminent, after fighting its disclosure for more than a year.

A Brash ally, government relations consultant Matthew Hooton, has been battling police for more than a year over their refusal to release the file. He took the case to the ombudsman.

Mr Hooton was yesterday cautious about the police about-turn. “We may be pleasantly surprised, but our understanding is that the file will be so heavily censored as to be meaningless and we expect the matter will return to the ombudsman or even end up in the courts.”

Dr Brash said police had told him they were about to release the file and had sent him a “heavily censored” version.

This is ridicolous. Why won’t they release the full version, rather than one with 90% redacted?

Hooton in NBR states:

The file will be so heavily censored it will largely be blank and will contain no new information.  This pseudo-release follows an Official Information Act (OIA) request my government relations firm lodged on May 27, 2007.  Under the law, PNHQ had 20 days to respond.  In fact, getting to this point, two years later, has required enormous effort by my staff and pro bono assistance from Kensington Swan.

Lest anyone think police files can’t be released, the “paintergate” press conference, at which PNHQ announced Ms Clark would not face forgery charges, suggests otherwise.  Then, PNHQ staff told journalists that if they scribbled down an OIA request, the file would be released, uncensored, the same day.

I think Mr Hooton and Kensington Swan need to press on – even if it means court action. Hell I can think of a lot of people who might donate to help cover the costs.

Let the truth come out.

The Dom Post reports:

Former National Party leader Don Brash has hit out at police stonewalling over the release of files surrounding one of the great political whodunits.

The mystery has only deepened as police stymie all attempts to disclose the file into the publication of Dr Brash’s private emails.

In the latest letter rejecting a request to release the file under the Official Information Act, police have cited the need to protect confidential informants. They have also insisted that the investigation remain open, despite a statement a year ago by outgoing police inspector Harry Quinn that the investigation was closed.

If the file is closed, it should be released. Simple.

The Dominion Post asked for a copy of the police file a year ago. Police sought several extensions of the deadline and then said the request had been lost.

Hmmn. That makes me very curious.

Matthew Hooton blogs some disturbing information he has obtained from the Police. It has taken him 18 months to get the information under the Official Information Act, even though it should have taken only 20 days.

It deals with the Police investigation into the Brash or so called Hollow Men e-mails. Key points are:

• The alleged theft was notified to Police in August 2005
• The Police did not begin their investigation until September 2006 – 13 months later!
• The Police did not interview anyone as part of the investigation until June 2007 – 22 months after the complaint
• The Police lied when they said in April 2008 the file was closed, as they now claim it is open but not active.
• It took 18 months to get even this information out of the Police
• The Police are refusing to release the file, even though they say the file is no longer active
• The Officer in charge is the same Officer who decided not to prosecute Labour for their $800.000 of over spending in 2005

Now some will say there is nothing bad or sinister about this. They will claim the e-mails were never stolen. But why did the Police spend 20 months fighting the OIA release?

The Hive notes that Radio New Zealand has removed from its website, the audio of Monday’s Focus on Politics.

It has been suggested that Nicky Hager is threatening Radio New Zealand with defamation over the item – presumably over Matthew Hooton’s comments rather than Laila Harre’s.

I am not sure if it is true, but imagine if it was Nicky Hager being threatened with defamation. We’d probably hear all about how big monied interests are trying to silence him.

A defamation case would be fascinating. I’d love to hear testimony on how the e-mails were not stolen, and the ability for this to be cross-examined.

NZPA reports:

Police have given up hunt for the person behind the theft of former National Party leader Don Brash’s emails.

An investigation into the theft had closed, Wellington police district crime services manager Detective Inspector Harry Quinn said.

It had not identified those responsible.

“How the thefts occurred still largely remains a mystery,” Mr Quinn said.

“We have eliminated the suggestion that an external ‘computer hacker’ had breached the computer security within Parliament, but there remains many other potential ways in which the crimes could have occurred.”

The investigation established that emails created between October 2003 and November 2005 had been stolen from the ownership of Dr Brash, but found no evidence of thefts since November 2005.

Mr Quinn would not speculate on how he thought the emails had been taken from Dr Brash.

“There are strong indications that the emails were in printed form at the time of the theft, but with the thefts perhaps happening at any time over the two-year period it is very likely that they were stolen during several incidents,” he said.

Police interviewed parliamentary computer staff, parliamentary security staff, cleaners, Dr Brash’s staff, politicians, journalists and friends of Dr Brash.

“Many of them had their own theories on who was responsible and why the thefts had occurred,” said Mr Quinn.

“But in the end no firm evidence pointing to a potential perpetrator was uncovered. The file is closed until someone comes forward with some compelling evidence.”

Interesting that they think printed e-mails were stolen, rather than an electronic copy. If so then that is beyond doubt a criminal act.