Chief Ombudsman calls out NZ Defence Force for acting 'unreasonably' during investigation

Chief Ombudsman Peter Boshier has slammed the NZDF for "undermining" his initial investigation into complaints about Operation Burnham information releases.
Chief Ombudsman Peter Boshier has slammed the NZDF for "undermining" his initial investigation into complaints about Operation Burnham information releases. Photo credit: AM.

The Chief Ombudsman has called out the New Zealand Defence Force (NZDF) in a scathing new report, saying they acted "unreasonably" during his initial investigation into their actions.

Chief Ombudsman Peter Boshier released his report on Thursday into whether the NZDF misled him while he was looking into complaints over their refusal to release crucial information about Operation Burnham.

Operation Burnham was a joint military operation between NZSAS troops and other countries' forces in Afghanistan in 2010.

Boshier said the NZDF weren't deceitful, but they still undermined the purpose of the Official Information Act (OIA).

"While there was no evidence that the NZDF deliberately misled me, I believe a combination of circumstances including its very poor record keeping and inadequate processes meant I simply didn’t have all the facts," he said.

Boshier added the NZDF's failure to share all relevant information hampered his work.

"This serious information gap undermined my initial investigation and meant the NZDF avoided being accountable," Boshier said.

He said when the Ombudsman investigates complaints, agencies need to give a full picture of what happened - especially when it comes to national security or international relations.

"This includes putting effective processes in place to record, retrieve and consider information," Boshier added.

As a former judge and now the Chief Ombudsman, Boshier's job is to make sure the OIA is being adhered to, which he called a "cornerstone of our democracy".

He said cases like this affect how the OIA operates and harms the perception of transparency in Aotearoa.

Boshier first began investigating the NZDF's actions in 2018, after he received several complaints about the agency not adhering to the OIA.

The complainants weren't happy that the NZDF wouldn't release information about claims made in the 2017 book Hit & Run.

Hit & Run, by Nicky Hager and Jon Stephenson, detailed the NZSAS' involvement in Operation Burnham and made several serious allegations about Kiwi personnel.

However, the NZDF claimed releasing that information would hurt New Zealand's international relations.

At first, the Ombudsman agreed with the NZDF, that most of the information was "appropriately withheld", instead asking for a summary.

But then he got another complaint after a trove of information was declassified and released during the Government's 2020 inquiry into Operation Burnham.

Boshier then took it upon himself to investigate the NZDF again.

He found evidence they gave during the Government's inquiry showed he wasn't given all relevant information, including "important documents relating to civilian casualties".

He added the NZDF's summary was "incomplete" and "significantly underplayed the nature and scope of Operation Burnham".

Boshier also found the NZDF had poor information management, and staff tasked with finding the right information didn't know it existed.

"I didn’t receive everything I should have. Relevant material held elsewhere within Defence should have been provided," he said.

"For all these reasons, I formed the opinion that the NZDF acted unreasonably in relation to my earlier OIA investigation."

Boshier said the OIA's purpose is to hold officials and ministers accountable, but the NZDF's response to his first investigation had "the reverse effect" because it was unaccountable for its actions until the Government's inquiry.

"This undermined the very purpose of the OIA."

He was however satisfied that the NZDF's improvements to information management were underway.

Boshier has requested an update from the NZDF in six months time on its progress in implementing recommendations from the Expert Review Group, set up in the wake of Operation Burnham.