John Banks knows who gave money to his mayoral campaign. We know John Banks knows who gave money to his mayoral campaign. So why don't we know who gave money to John Banks' mayoral campaign?

It's good to see that the Herald [Update: and stuff.co.nz, too] has decided not to consign the issue of John Banks' fundraising practices for his failed Auckland mayoral campaign to the memory hole. I say this not (only) because I am not a big fan of the man or the party he represents in Parliament - shock, horror ... academic admits to left-wing leanings! - but also because his refusal to deal adequately with the matter when it first arose ought not to be rewarded. We simply should not let our representatives get away with refusing to answer legitimate questions about their actions when seeking public office, in the hope that everyone will just get bored with the issue and "move on".

[Additional update: I now see that it was Labour that winkled this information out of the Police, and then shopped it generally around the media ... a point not made in the Herald article I based this post on!

Additional update to this update: I'm informed the reason the Herald didn't mention that they got the information from Labour is because they didn't. David Fisher did his own OIA work, and it was sloppy of me to assume otherwise. Sorry.]

Anyway, getting down off my soapbox, the Herald's latest story reports on the details gathered during the Police's investigation into allegations Banks breached the Local Electoral Act that have been released to it under the Official Information Act. I won't repeat in full what that story says ... basically that Banks appeared to be running a fundraising system that allowed him to plausibly deny he knew the identity of the people he was asking to give him money ... because the Herald already covers it in depth, and because it basically was what I assumed he was doing all along. But there was one thing that struck me as a bit odd about the information given (or, rather, not given) to the Herald by the Police.

(I can't link directly to the file containing that information - you can go to the Herald's webpage and get it from there if you want to.)

At various places, there has been material redacted from the document the Police provided. That's not unusual in itself - the Official Information Act allows for information to be witheld for a variety of reasons. But in this particular case, the information that has been blanked out includes the names of an individual donor to Banks' campaign whose donation was listed by Banks as coming from an "anonymous" source, but that the Police concluded ought not to have been because he both knew the donor's identity and the fact the donor had made the particular donation.

I'm simply not sure that the Police had any grounds to refuse to tell the Herald (and through them, the rest of us) just who that donor was. Here's why.

Under the Official Information Act, section 5:

The question whether any official information is to be made available, where that question arises under this Act, shall be determined, except where this Act otherwise expressly requires, in accordance with the purposes of this Act and the principle that the information shall be made available unless there is good reason for withholding it.

So, the base rule is that the Police must tell the Herald (and thus us) everything about their investigation (including who they interviewed about their donations to Banks), unless there is "good reason" not to. And the Official Information Act then continues in section 9:

[G]ood reason for withholding official information exists, for the purpose of section 5, unless, in the circumstances of the particular case, the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available ... if, and only if, the withholding of the information is necessary to ...protect the privacy of natural persons.

What this means is that protecting the privacy of the donor to Banks will serve as a good reason not to disclose their identity to the Herald, provided of course there are no "other considerations which render it desirable, in the public interest, to make that information available". The Police obviously considered that it was necessary to withold the donor's name for this reason, and that there were no sufficiently pressing matters of public interest to override the donor's privacy.

But here's the problem with that position. Under the Local Electoral Act, we already ought to know who that donor was. I've posted before on the law in this area here, so I won't revisit the issue in full detail. Suffice to say that under that legislation, there is a legal obligation to publicly identify every individual donor who gives you more than $1000, unless a "donation ... is made in such a way that the candidate concerned does not know who made the donation" - in which case, the donation is to be listed as coming from an anonymous source.

Now, the Police concluded that Mr Banks' financial return listed this donor's donation as coming from an anonymous source when he actually knew who it came from - meaning he was legally required to disclose that donor's identity. In other words, he acted in breach of the Local Electoral Act ... it's just (as I discuss here) the Police couldn't charge him with anything under that legislation. But that still doesn't change the basic fact that there was a legislative obligation to make the donor's name public that was not complied with.

Therefore, when the Herald asks to see the information the Police collected in the course of their investigations into Banks' fundraising activities, how can the Police conclude that it is necessary to protect the privacy of the donor by blanking out his or her name? Or, rather, how can the Police conclude that it is more important to protect the privacy of an individual whose identity already ought to have been made public had Mr Banks done what the law required than it is to follow the base rule that all information must be made available? Because I can't for the life of me see how this conclusion can be justified.

I raise this question for two reasons. One, if I am right about this issue, somebody reading it might care to take the matter up and see if they can winkle more information out of the Police - either directly or via the Ombudsman.

And two, I want to see whether Graeme Edgeler or Steven Price will be the first to tell me why I am wrong. Gentlemen, start your keyboards.

Comments (12)

by Steven Price on September 13, 2012
Steven Price

Andrew, Andrew. You haven't read the Official Information Act properly. You've overlooked two crucial sections:

Section 29A Exemption for police

(1) The New Zealand Police are not required to take the Official Information Act seriously. They can do pretty much whatever they like.

Section 45B Public interest balance unnecessary

(3) You know that bit in section 9(1) about balancing the public interest? Just kidding! No-one has to do that.

by Ian MacKay on September 13, 2012
Ian MacKay
And section 17c : "That by redacting certain names unjustifiably, it is certain that an Eager Beagle will draw attention to it and the ensuing debate will ensure that the the name of the "Poor-me-I'm-Innocent-Banks" will continue to be in the public eye." A bit unfair to invoke this section though. Hasn't the poor man suffered enough? Will it not interfere with his important works as a Cabinet Minister, or even cause him to doubt the machinations of his god? Enough I say! Enough!
by Andrew Geddis on September 13, 2012
Andrew Geddis

Steven,

You know I have a VERY short attention span. Any provision beyond about section 12 may as well be written in Sanskrit, for all the notice I take of it.

by Scott Chris on September 13, 2012
Scott Chris

We simply should not let our representatives get away with refusing to answer legitimate questions about their actions when seeking public office, in the hope that everyone will just get bored with the issue and "move on".

Yes I agree - in the same way that defendants should be obliged to testify imo.

by Ross on September 13, 2012
Ross

Scott,

I disagree. Those seeking public office are expected to be mildly intelligent. Defendants may or may not be. If an innocent defendant comes across poorly- and a prosecutor is unlikely to simply ask legitimate questions - the result could be several years in prison for a crime they didn't commit.

by william blake on September 13, 2012
william blake

Ross,

...- the result could be several years in office for a crime they did commit.

by Ross on September 13, 2012
Ross

True, WB...but how long someone is an MP is up to voters.

by elmer homofeld on September 13, 2012
elmer homofeld

Sorry, collective electoral experts - but aren't you all missing the point?

The government has proposed to reform the donations law in the Local Electoral Act.  But last time I checked, the expenses law in that Act was in a tragic state - particularly as it applies to the Auckland mayoralty, which is a very high expenditure contest.

Isn't this the real focus for attention, rather than an arcane point about official information?

by Andrew Geddis on September 14, 2012
Andrew Geddis

elmer,

Sure - when we see the details of what the Government is proposing, then we can discuss it in depth. But you might like to note it is something I've posted on before.

Also, just because the Government has chosen to announce plans to fix this law on the same day as details about Banks' behaviour under the previous law are revealed doesn't mean we should "move on" from that topic. Don't you think we should at least be given the information we had a right to under it, limited though that might have been? Or does Banks get a complete pass on the issue now?

by elmer homofeld on September 14, 2012
elmer homofeld

Look.  The government has said it is going to reform the donations law that applies to local elections.  But it is clearly not going to reform the law that relates to expenditure, which is in a really bad state.

There is actually quite a bit of detail available on what is (and is not) being proposed - http://www.scoop.co.nz/stories/PA1209/S00159/proposed-changes-to-local-electoral-law.htm

This is all going to get pushed through by May next year - ie, in a rush, only 5 or 6 months before the next local government elections.  That is a concern in itself - the political agreement for national elections, quite correctly, is that no changes should be made in the calendar year that the election will be held.

The fact that expenditure is being left out of the mix is pretty outrageous, especially given the size and importance of the Auckland elections.

Have you taken a good hard look at the provisions?  They resemble a colander.  Your previous post really only deals with donations ...

Andrew, you can talk about the police's inept electoral prosecution function all you want, or the way that public officials walk around the Official Information Act with relative ease.  No surprises there, and no-one is planning to change that as far as I'm aware.

But if NZ's electoral experts (ie, you lot) raised awareness about the obvious and cynical shortcomings in the government's local electoral reform now, and kept the heat up for a few months, you might actually make a big difference to our local electoral finance laws.

The bull is before you, take the horns!

 

by Andrew Geddis on September 14, 2012
Andrew Geddis

elmer,

On the right hand side of the screen is a link "Send us a Story". Click on it, write up your views on the proposals (which we've seen the general outlines of, but it's the details that really matter), and send it through. We'll post it.

No need to rely on "experts". The bull is before you, take the horns!

by Fiona on September 24, 2012
Fiona

How could JB not know who gave him such large amounts of money. Dotcom said he gave him 2 cheques of $25k each. Now cheques have company names or personal names on them they are not blank. So JB there is no getting out of this one.

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