14 Nov 2018

Judge on council email block: 'Who knows what issues not attended'

2:47 pm on 14 November 2018

There is no way of knowing if email interceptions interfered with democractic processes in Horowhenua, says the Chief Ombudsman.

Chief Ombudsman Judge Peter Boshier (center), Deputy Ombudsman Compliance  and Practice Emma Leach (left) and Chief Inspector OPCAT Jacki Jones, (right) speak to the Law and Order Committee about the illegal restraint of at risk prisoners.

Chief Ombudsman Judge Peter Boshier, Deputy Ombudsman Compliance and Practice Emma Leach (left) and Chief Inspector OPCAT Jacki Jones. Photo: VNP / Phil Smith

Judge Peter Boshier's investigation of the Horowhenua District Council has found there were numerous cases where emails were blocked from reaching their intended recipients for no discernible reason, including stopping them reaching elected constituents.

"What you can say is, 'who knows'.... who knows what issues have not been attended to or addressed as a result of the quarantining that has occurred?" Judge Boshier told RNZ.

The intercepts were largely unchecked, even though it was fundamental to democracy for constituents to be able to use secure email with council staff and councillors, he said.

The mayor and four constituents had complained to the Ombudsman about the email intercepts.

District council chief executive David Clapperton had repeatedly said the emails were abusive and he was only protecting staff.

There was no evidence their emails were abusive or offensive, the inquiry found.

"We did not see any evidence in the sample of 47 emails that we saw that justified interception and quaranting of the sort that occurred here," Judge Boshier told RNZ, labelling the intercepts as "wrong", "flawed" and "cavalier".

The interceptions went on for years: they were set up in 2011 and continued after Mr Clapperton took the reins in 2013, and only stopped a month after RNZ broke the story after a . critical draft audit was leaked.

Mr Clapperton has now sent out letters of apology.

Anne Hunt, a former district councillor who suspected her emails were blocked, looked askance at hers.

"He had no qualms about destroying or tarnishing my reputation at the time ... it's going to take a lot of time for him to undo the damage he's done to my reputation."

Mr Clapperton told RNZ he accepted "the opinion of the Ombudsman" the emails weren't offensive and "I'm not going to question that".

However, he immediately went on to say he ran the interception regime with "good intention" to protect his staff from "inappropriate commentary".

Judge Boshier said staff could be protected in other, fairer ways.

Mr Clapperton's letter of apology said: "I hope you feel reassured by the Ombudsman's finding that there is no basis to suggest council used its email quarantining process to somehow interfere with or obstruct iwi negotiations, Resource Management Act submission processes, local election processes or Environment Court proceedings."

Judge Boshier said in his report that he had "no means to determine definitively whether any emails were altered before being forwarded to their intended recipients" but that there was no clear evidence to suggest that the council "attempted to distort or obstruct any email exchange".

The fact that it was a "who knows?" question was problematic enough, he told RNZ.

A new quarantining policy was brought in late last year; previously, people weren't told if they were being blocked, now they are. Council records show that since mid-2018, five emails from three people have been quarantined, and one person remains on a quarantine list for "two extreme breaches (threatening commentary and offensive language)".

This new way of quarantining emails could not be trusted in the hands of those who'd run the former regime, said mayor Michael Feyen.

"You can't expect people to rectify a system when they're the cause of the problem," he said.

It still was not clear exactly how many emails were quarantined over the years, and a full audit was needed, he added.

David Clapperton said their new email policy was written with help from the Privacy Commissioner.