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SSC advice released

19 December 2001 Media Statement

SSC advice released

Defence Minister Mark Burton has released advice received from the State Services Commissioner Michael Wintringham, following a preliminary review of allegations surrounding the accessing of Ron Mark's military service records.

The advice recommends that the Commissioner refer the preliminary report to the Chief of Defence Force, "as the appropriate authority to take these matters further."

"I met with the Commissioner this afternoon, and I have personally advised Mr Mark that I have accepted the recommendation made by the Commissioner," Mark Burton said.

"The reviewers, Messrs White and Ansell, advised the Commissioner that there were a number of issues they could not resolve, but which required further consideration.

"The Commissioner will therefore refer the evidence gathered to the Chief of Defence Force, for further action.

"These matters could require disciplinary measures, under the authority of the Chief of Defence Force, and must not be subject to political interference.

"It would therefore be inappropriate for me to make any further comment until the Chief of Defence Force has determined what action is now required."

Attached: Letter to Minister of Defence from State Services Commissioner.

18 December 2001

Hon Mark Burton
Minister of Defence



In September 2001, you and the Chief of Defence Force each asked me, under section 11(4) of the State Sector Act, to ¡§review the performance of the New Zealand Defence Force in relation to the standards of behaviour expected and in particular the leaking and inappropriate use of information by Defence Force personnel¡¨. As you know, I have appointed Douglas White QC and Graham Ansell to carry out that review on my behalf.

Subsequently, you asked me to look into the allegation that Major General Dodson accessed the personal file of Ron Mark held by the New Zealand Defence Force. I extended the terms of reference for the review being carried out by Messrs White and Ansell to include:

„h establishing whether Major General Dodson accessed records relating to Mr Mark, what records were accessed, how many times, and for what purpose;
„h identifying the rules or conventions applying in the New Zealand Defence Force in general, or in the Army in particular, governing access to such material; and
„h ascertaining the view of the Chief of Defence Force on this matter, and any action taken by him in response to the allegations.
I also asked the reviewers to give me their views on any issues that the matter raises. I had in mind comment on the protections that should apply to personal information of former members of the New Zealand Defence Force, and whether any particular constraints should apply in the case of former Defence Force personnel who are Members of Parliament.
I now have a preliminary report from Messrs White and Ansell setting out the evidence they have gathered in addressing the allegations concerning Mr Mark¡¦s file. In essence, the reviewers conclude, on the basis of that evidence, that there are unanswered questions that warrant further consideration. In my view, the Chief of Defence Force is the appropriate authority to take this matter further.
The reviewers¡¦ report on the original inquiry is nearing completion, but has been delayed by their careful attention to these additional matters.
The report will give the Chief of Defence Force the information he needs to pursue the questions that remain unanswered. It sets out the evidence the reviewers have gathered in relation to the three matters outlined above. They have interviewed more than a dozen witnesses in collecting that evidence. They have also reviewed the Defence Force rules and conventions that govern the holding of personal information and the access to personnel files.

The report identifies several areas where there is a conflict in evidence that warrants further consideration.

Central to the report is the information the New Zealand Defence Force holds concerning Mr Mark. The Defence Force holds four personal files relating to Mr Mark: a personal file, a duplicate personal file, a unit personal file and a confidential personal file. The confidential personal file contains confidential information and personal reports about Mr Mark, and is kept in a sealed envelope.
Mr Mark has alleged that Major General Dodson obtained information about him from his personal Army files, and that Major General Dodson, or other persons on his behalf, used the information for the purpose of persuading Mr Mark that he should cease his public criticisms of Major General Dodson.

The reviewers, with Mr Mark¡¦s permission, inspected the files. The confidential personal file includes a page, not on any of the other files, which contains information about Mr Mark¡¦s conviction in 1972, information about which was made public by Rt Hon Winston Peters MP on 30 November 2001.
Access to files
It is not in dispute that Mr Mark¡¦s files were accessed by Major General Dodson, or on his behalf, on three occasions: in August 1999, and on 23 and 29 January 2001. The confidential personal file was unsealed twice, in August 1999 and on 29 January 2001. Major General Dodson has explained his reasons for accessing the files, and he does not recall seeing on the file the page containing the information about the 1972 conviction.
However, the precise details as to who looked at which file are unclear. I am satisfied that, given the seriousness of Mr Mark¡¦s allegations, this question should be considered further.
Conflicting evidence
On 5 December 2001, the Managing Director of Communications Trumps advised you, among others, that a (now) former staff member had shown a current staff member a page concerning Mr Mark, presumed to have come from his Army file. Mr Alan Emerson identified himself as the former staff member. The Hon Deborah Morris is the current staff member referred to. The reviewers interviewed both Mr Emerson and Ms Morris.
It is clear that Communications Trumps have had access to personal information about Mr Mark which is also on his confidential personal file. There is, however, a dispute as to whether the information was obtained by access to the file, or by other means. There is independent evidence to suggest that the information came from the file.
Next steps
The reviewers¡¦ advice to me is that, on the basis of their preliminary review, they conclude that there are a number of issues that they cannot resolve, but which require further consideration. Some of those questions may turn on the credibility of witnesses.
My advice to you is that the Chief of Defence Force is the appropriate authority to take this matter further, to determine what action is now required. Mr Mark¡¦s allegations are serious, and I consider that these matters should not be left unresolved.
I am mindful of the competing interests involved. I am aware of the public interest in the matter, but I believe that the rights of the individuals concerned must be protected by the preliminary report remaining confidential until the outstanding questions are resolved. I am conscious too of the benefits in resolving matters quickly, both for the sake of the individuals concerned, and to avoid any threat to confidence in the Defence Force. However, again, individual rights are best served by resolution of the matters that remain in contention.
The matters in the report may well become the subject of a disciplinary or other inquiry. That possibility also underlines the need for the report to remain confidential until presented in such a context.
I am of course happy to discuss these matters with you further should you require it.

I recommend:

That you agree to my referring the preliminary report to the Chief of Defence Force, as the appropriate authority to take these matters further.

Michael Wintringham
State Services Commissioner

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