The latest revelations around the Nash e-mail has taken it from merely an issue of bad judgment, to corrupt behaviour involving the Prime minister's Office.
On June 8, 2021, Newsroom made a request to Nash's office under the Official Information Act for “All written correspondence and details of the nature and substance of any other communication since the start of 2020” between Nash and 19 of his political donors. Included on the list of donors was Troy Bowker. Given that the June 2020 email to Bowker concerned discussions Nash was having in his capacity as a minister, it appears that the June 2020 email fell within the scope of Newsroom's request.
In August 2021, however, Nash's office responded, “I hold nothing that is within the scope of your request as the Act relates only to information provided to me as minister. I must therefore refuse your request under section 18(e) of the Official Information Act as the information does not exist or cannot be found.”
Failing to disclose documents within the scope of a valid request without justification is a breach of the Official Information Act.
There is basically zero doubt that the law was broken here. When I heard the e-mail was deemed out of scope of the OIA request, I was very interested as to what the request was for. Was it a very general request for material on rental policy, or was it specific.
The request was as specific as you can get. It was for all correspondence between Nash and his donors. this was an e-mail between Nash and two donors. It was obviously exactly the sort of information Newsroom was seeking to obtain.
The Government decided it was out of scope as it was Nash communicating in his capacity as an MP, not a Minister.
Now sometimes there can be a grey area between whether a Minister is acting as a Minister or MP, but this is not one of them. Nash was referring to a decision made by Cabinet, and even detailing discussions around the Cabinet table and how different Ministers voted. It is impossible to say this is a communication in his capacity as an MP, not a Minister. MPs do not attend Cabinet, only Ministers.
But while Nash signed off on not releasing the e-mail, this was a decision taken jointly with jacinda ardern's office.
Two staff members in the Prime Minister's Office, deputy Chief of Staff Holly Donald and a senior advisor were aware of the original OIA
They were consulted on the OIA and concurred that the e-mail was out of scope. No one with any experience with the OIA could in good faith believe it was out of scope. They conspired to invent a reason not to release it.
And the reason they didn't release it, is it was explosive. It was proof that a Cabinet Minister was e-mailing two people details of discussion and decisions in Cabinet.
Now this is the Deputy Chief of Staff to the Prime Minister. There are broadly only three possible explanations for what happened.
- The Deputy Chief of Staff to the Prime Minister is so incompetent and derelict in her job that she didn't think it was necessary to tell the Prime Minister (or the CoS) that one of her Ministers was sending e-mails to donor giving them a detailed description of Cabinet discussions and voting.
- The Deputy Chief of Staff realised how explosive this was, and deliberately decided not to tell the PM or CoS so there was plausible deniability
- The Deputy Chief of Staff did in fact tell the PM or the Chief of Staff
But it gets even worse. From the RNZ timeline:
1 March: Stuart Nash receives a letter from the Ombudsman regarding an investigation into his response to the 8 92021 OIA.
17 March: Stuart Nash's office drafts a response to the Ombudsman and shares it with the Prime Minister's Office. This did not include a copy of the 5 June 2020 email but did include a reference to withholding documents under s9(2)(j). The Prime Minister's Office did not reply.
29 March: Stuart Nash replies to the Ombudsman including a redacted version of the 5 June 2020 email. Includes an explanation that the email was in his capacity as a labour Member of Parliament rather than in his capacity as Minister.
30 March: Office of the Ombudsman responds to Nash's office, acknowledging receipt of his response.
25 May: Office of the Ombudsman emails Stuart Nash's office saying they would not be pursuing the complaint and the investigation was closed.
They sent the Ombudsman a redacted version?? You are not meant to redact anything to the Ombudsman. They obviously hid the substance which would have shown the e-mail clearly was in his capacity as a Minister. So the pms Office and Nash's office conspired again to hide the full e-mail from the Ombudsman. That is appalling.
I suspect and hope the Chief Ombudsman launches an inquiry into this.
But the issue is not just the breaches of the OIA. It is also about how the PM's Deputy Chief of Staff knew what was going on and allegedly never told anyone.
I think 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. I simply do not believe that two senior staffers in the PMs Office knew about the e-mail and did not tell anyone.