SUBMISSION TO PARLIAMENT’S PRIVILEGES COMMITTEE

From Parliamentary Press Gallery

Chair: Claire Trevett

Inquiry into a question of privilege regarding use of intrusive powers within the parliamentary precinct

This submission is presented by the Parliamentary Press Gallery which represents all media accredited by the Speaker to cover Parliament and politics in New Zealand.

1 To quote from Parliament’s own website, “the news media is central to New Zealand’s democracy. A Press Gallery journalist’s role is to provide specialised coverage and analysis of political and parliamentary news to the public – to look over the shoulders of members of Parliament and those who serve them”.

2 In order to fulfil that role effectively and efficiently Press Gallery journalists need to be based inside the parliamentary precinct and use telephony provided within the precinct.

Issues of concern

3 The issues under consideration by the Privileges Committee have a direct effect on the freedom of Press Gallery journalists to do their job. The incident that sparked the Committee’s inquiry was an old fashioned scoop; a reporter (it makes no difference whether a Press Gallery journalist or some other) discovered information about a soon-to be released report and published it ahead of the Government’s preferred timeline.

4 As to be in expected in those circumstances the journalist concerned did not identify her source in the published story and would not want the source to be identified post publication.

5 In the subsequent investigation into the leak that followed (the Henry Inquiry), two particular events are of concern:

5.1 That Parliamentary Service accessed the phone logs of a Press Gallery journalist to the Henry Inquiry without seeking permission to do so; and

5.2 That Parliamentary Service released the swipe access records of a Press Gallery journalist to the Henry Inquiry without seeking permission to do so.

6 The three steps outlined above were taken in an effort to identify the source of the leak. While the Press Gallery accepts that leaks will be investigated, it does not accept that Parliamentary Service had the authority to hand over the information to the Henry Inquiry.

7 There are two ways in which any party can assist an inquiry. They can:

7.1 voluntarily provide information; or

7.2 be compelled to provide information.

8 In this case we do not believe Parliamentary Service had the authority to volunteer the swipe card information or the phone log. Even if Parliamentary Service believed it was compelled to assist the Henry Inquiry, it still had no authority to disclose any material that could identify a journalist’s source. It could not compel the reporter to provide the information and it should not have circumvented this ‘problem’ by offering up the information without the reporter and his or her employer’s consent.

Recommended approach

9 The Press Gallery asks the Privileges Committee to consider the following:

9.1 That Parliament recognise the central role of the news media in a healthy democracy;

9.2 That where, in future, requests are made for information it holds on any accredited journalist Parliamentary Services immediately refer such requests to the Speaker. Upon receipt of the request, the Speaker should:

(a) consult with the individual reporter and his or her employer;

(b) advise the Chair of the Press Gallery;

(c) allow a reasonable period for the reporter and his or her employer to respond, including seeking legal advice if appropriate; and

(d) in deciding on any request, the Speaker should consider the public interest role of the media, and constitutional and legal protections that enable it to undertake that role.

10 In responding to any request, the Press Gallery submits that the Speaker note that the Press Gallery’s relationship in Parliament is directly with the Speaker. We do not believe he/she should delegate decisions in relation to information held on Press Gallery journalists to any other officer in Parliament.

11 The following submission presents the background information to support the Press Gallery’s preferred approach.

Status of Press Gallery reporters

12 Press Gallery reporters are employees of their particular news organisations, and work under instruction from their head offices. They are based inside the parliamentary complex solely because the nature of their work requires them to be close to Parliament and Government.

13 They occupy offices in and use facilities provided by Parliament on the following terms:

13.1 They must be nominated by their employer to be a press gallery reporter; and

13.2 That nomination must be submitted to the Chair of the Press Gallery and approved by him/her; and

13.3 Then approved by the Speaker.

14 It is understood the Speaker first granted a reporter a pass to cover a session of Parliament in 1870.

Conditions imposed on Press Gallery

15 Press Gallery reporters are accredited by the Speaker on condition that they agree to abide by the Rules of the Parliamentary Press Gallery (the Rules) - which are in turn approved by the Speaker in accordance with his overall control of the Parliamentary precinct under section 26(1) of the Parliamentary Service Act 2000.

16 Under the Rules:

16.1 Office accommodation within the parliamentary complex will be provided (that accommodation to include work station space and telephone and power connections) (clause 17);

16.2 Press Gallery reporters are entitled to use the Parliament-wide non-electronic internal mail delivery service (clause 14(c));

16.3 Press Gallery reporters are, subject to the rules made from time to time by the Speaker, to be issued with an official identity card and a swipe card enabling them to pass through designated security doors and activate photocopiers (clause 14(e)); and

16.4 Press Gallery reporters are to have right of access throughout the Parliamentary complex via corridors, lifts and foyers, excluding lifts at times when only Members of Parliament have access, providing that in exercising this right of access, members and ancillary staff must wear their Parliamentary accredited identification at all times (clause 14(f)).

17 In addition to the Rules, Press Gallery reporters also sign an access compliance agreement at the time they receive their parliamentary swipe card. This access compliance agreement confirms that the swipe card is issued on the authority of the Speaker and sets out a range of access responsibilities. It makes no reference to Parliamentary Services either:

17.1 retaining records of swipe usage; or

17.2 accessing records of swipe usage; or

17.3 publishing or distributing evidence of swipe usage.

Relationship with Parliamentary Service

18 The Press Gallery has no direct relationship with Parliamentary Service. Parliamentary Service distributes identification cards and swipe cards to accredited journalists, but this is an administrative function exercised on the authority of the Speaker.

19 In other respects:

19.1 While Parliamentary Service makes office space available (under instruction from the Speaker) the actual allocation of rooms is made by the Press Gallery itself;

19.2 Parliamentary Service provides phone lines to each fully accredited reporter. Media outlets are billed for phone line usage. In some cases media organisations also provide their own phone lines which operate independently of the parliamentary complex;

19.3 While Press Gallery reporters are entitled to use Parliament’s non-electronic mail system they are not on Parliament’s electronic mail system. Others working in the parliamentary complex can access this system.

In any circumstances where the Press Gallery has an issue relating to access or accreditation those issues are dealt with directly by the Press Gallery Chairman and the Speaker.

The investigation of the leaked report

20 It is the Press Gallery’s submission that Press Gallery journalists are no different to other journalists in terms of the protections available to them under the law.

21 Like other journalists, from time to time, they receive information from individuals in confidence. Where the information is sensitive a journalist may undertake to keep secret the identity of such an individual. Such an undertaking is a serious business. Sources will not disclose information to journalists if they believe a promise of confidentiality will not be kept and in some cases such a disclosure could have tangible negative effects on the individual concerned. Where the information leaked is a sensitive Government report, for instance, they could lose their job.

22 The law recognises the special relationship that exists between journalists and their sources and the genuine public interest justifications for it.

23 Under section 68(1) of the Evidence Act 2006 no journalist (nor his or her employer) can be compelled in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.

24 An informant in this context is any person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published.

25 The Evidence Act does not prevent a journalist from choosing to disclose an informant’s identity or an informant choosing to identify him or herself. But in circumstances where that does not occur only a High Court judge may order disclosure and then only when the public interest in the disclosure outweighs:

25.1 any likely adverse effect of the disclosure on the informant or any other person; and

25.2 the public interest in the communication of facts and opinion to the public by the news media and accordingly also in the ability of the news media to access sources of facts (section 68(2)(a) and (b)).

26 In NZ Police v Campbell And Ors [2010] 1 NZLR 483 Randerson J concluded that:

26.1 a journalist has prima facie immunity from disclosure;

26.2 the presumptive right to the protection should not be departed from lightly and only after a careful weighing of each of the statutory considerations;

26.3 the journalist’s protection should not normally be overridden if the public interest in the disclosure of the identity of the informant can be satisfied by an alternative route; and

26.4 there is an onus on the person seeking to have the source revealed to demonstrate that the section 68(2) exceptions are met.

27 Randerson J declined to define a threshold for disclosure. His view was that the question required a balancing exercise based on the facts at hand. However UK academics (cited at [71] by Randerson J) have emphasised the need for exceptional or truly compelling circumstances in order to override the protection of journalists’ sources:

Compelling journalists to identify their sources should be truly exceptional. The relevant Recommendations of the Council of Europe Committee of Ministers identifies the following as potentially capable of overriding the public interest in the confidentiality of journalists’ sources: the protection of human life, the prevention of major crime and the defence of someone accused or convicted of a major crime.

Seeking the source of the leak

28 The Ministerial Inquiry was tasked (in part) with finding out how the information about the Government report was released and by whom. This required David Henry to seek out the source of the story published in FairfaxMedia newspapers on 9 April 2012.

29 David Henry had no powers to compel such a disclosure since:

29.1 Ministerial Inquiries have no statutory mandate to compel witnesses to provide information; and

29.2 as regards compelling a journalist to disclose a source, Mr Henry is not a High Court judge and a Ministerial Inquiry is not a “civil or criminal proceeding” as specified in section 68(1) of the Evidence Act.

30 Under section 4 of the Evidence Act a proceeding is limited to:

30.1 a proceeding conducted by a court; and

30.2 any interlocutory or other application to a court connected with that proceeding.

31 Therefore, in circumstances where the journalist was not willing to disclose the identity of her source, Mr Henry’s inquiry was limited to seeking that information from other routes and without compulsion.

Parliamentary Service’ cooperation with the Inquiry

32 Parliamentary Service appears to have given no consideration to what information it was being asked for and whether it could lawfully hand that information over to the Inquiry without the consent of those individuals (or organisations) with an interest in it. Although it sought authorisation to release the information requested that related to Ministers and staff, there was no equivalent effort made to seek authorisation for the information relating to the journalist.

33 The Press Gallery notes the following:

33.1 In this instance any decision to disclose information about the swipe card access or phone logs to the Henry Inquiry was rightfully that of the news organisation concerned;

33.2 The reporter’s landline phone logs are held by Parliamentary Service but are the property of the news organisation that employs him or her. In the case at hand, the calls were made in the journalist’s capacity as an employee of FairfaxMedia. The phones are provided by parliamentary Service which bills the journalist’s employer for their use. The phone records should be treated as if they were effectively held by the employer of the accredited journalist and only accessed and released in circumstances where the employer either consents to the release or would be compelled to release them;

33.3 The Press Gallery does not accept Parliamentary Service should have handed over swipe card records held in respect of a Press Gallery reporter. As noted earlier in this submission reporters are not employees of the parliamentary precinct. A subsequent attempt by a Press Gallery reporter to obtain information on whether his own swipe card had ever been accessed was rejected on the grounds Parliamentary Service is exempt from the Privacy Act 1993 insofar as its own employees;

33.4 Every accredited reporter is allowed freedom of movement around the precinct on condition they comply with the Rules and the Security Compliance Requirements (and there has been no suggestion that this reporter did not comply). Where there is an issue about a Press Gallery reporter’s movements (or use of the swipe access card) then that is a matter for the Speaker to deal with (in conjunction with the Press Gallery Chair). In this case the Speaker was not informed about the request;

33.5 We also submit that this instance was not a ‘security incident’ that warranted the release of the swipe card information. The journalist did not breach Press Gallery Rules, Standing Orders or the law. A leak that was simply politically inconvenient in terms of timing does not constitute a security issue. In that regard, we believe clearer criteria are needed for accessing and releasing security card information;

33.6 The issue of the emails is somewhat different to the phone logs and swipe card access logs. Parliamentary Service has no access to Press Gallery journalists’ email and internet systems. These are provided directly by their employers and are separate from any Parliamentary Service system. Accordingly, Parliament Service’s access to the journalist’s emails was restricted to those on its own server – ie those received by Mr Dunne and other Ministerial staff. The Gallery notes correspondence between a Minister and a journalist may be official information where it is held by the Minister acting in his official capacity (section 2 Official Information Act 1982). In the absence of any other authorisation, the Official Information Act should have been the criteria applied in this case;

33.7 Parliamentary Service ought to have recognised only a High Court judge can compel a journalist to disclose a source (as set out above) and therefore Mr Henry did not have authority to access this information, given:

(a) that the purpose of his request was to disclose the source; and

(b) the information provided could potentially disclose the source.

34 Accordingly faced with requests for the reporter’s emails, phone logs and swipe card trail, the Press Gallery submits that Parliamentary Service should have informed the Henry Inquiry that it could not assist. It should have instead, referred the Inquiry to both the Speaker and the reporter’s employer.

Future requests

35 The Press Gallery recognises that in the wake of the Henry Inquiry the Government now plans to pass the Inquiries Bill, giving greater powers to any future Ministerial Inquiry. Under the proposed bill a future Ministerial Inquiry (or Government Inquiry) will be able to require any person to produce any documentation or provide information (clause 21(a)).

36 So how should Parliamentary Service respond to any future request for information relating to a Press Gallery reporter?

37 The Press Gallery submits that the Privileges Committee consider the following:

37.1 Parliamentary Service should give consideration to the purpose of the request. It has no authority to disclose a journalist’s source and no authority to force a journalist to disclose his or her source. There are public interest rationales for the protection of journalists’ sources that should be recognised and respected;

37.2 The proposed Inquiries Bill will give those conducting an inquiry greater scope to compel disclosure, but under clause 28(1) journalists’ immunity from compulsion to disclose a source is included to cover inquiries. This upholds the special nature of the information provided to journalists by confidential sources. (Under this provision had the Henry Inquiry been conducted under the proposed regime he could not have compelled the reporter to disclose the source of the leak);

37.3 Any request for information about a Press Gallery reporter should be referred immediately to the Speaker. Parliamentary Service has no direct relationship with the Press Gallery and accredited reporters work within the parliamentary precinct on the authority of the Speaker;

37.4 Where a request for information is referred to the Speaker, the Speaker should:

(a) weigh up the seriousness of the facts at hand (more on this below); and

(b) contact the Press Gallery Chair; and

(c) contact the individual reporter and his/her employer;

37.5 A high threshold should be applied before any release. Where that is not met the Speaker should refuse to provide information relating to accredited journalists unless the journalist and his or her employer consent to that information being released. Where that information would identify the journalist’s source it should be withheld unless consent is given;

37.6 Where that information sought would identify a reporter’s source, the reporter and/or his or her employer may on learning of the request choose to disclose the information. There will be circumstances when a reporter and/or a media organisation will choose to do this but those circumstances will be exceptional.

ENDS

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