By David

It hasn’t been the best of weeks for the New Zealand government. The Prime Minister, John Key, has twisted and turned to avoid a tape of his conversation with ACT candidate, John Banks, being published. Key’s deceptive behaviour suggests there is something on the tape that he will do anything to avoid being made public. One week before a General Election and John Key is behaving like a guilty creep; walking out of meetings, refusing to answer questions and dodging reporters. Deception, it seems, is learned behaviour. The Prime Minister’s underlings in SPARC are proving equally adept at covering their tracks, hiding their bad behaviour. Is dishonesty becoming a defining feature of the John Key government?

On 3 November 2011 I wrote to Murray McCully, the New Zealand Minister for Sport and Recreation, requesting information held by SPARC. Here is a copy of my email.

Dear Sir,

In accordance with the terms of the Official Information Act 1982 I am making a request for information held by the Ministry of Sport and Recreation and in the offices of the organization known as SPARC and in the office of Swimming New Zealand.

In particular I am requesting a copy of the minutes and mediation agreement of a meeting held recently between several regions of Swimming New Zealand known as “The Coalition of Regions”, Board members of Swimming New Zealand and members of the Government funding organization (including the CEO Peter Miskimmin) known as SPARC. The agreement reached at this meeting has been referred to in the press as a Record of Mediation Agreement. This is the document that is the subject of this application for Information.

The Mediation Report is held in the offices of SPARC and Swimming New Zealand and is therefore covered by the Official Information Act 1982. Thank you for your consideration.

This morning I received a reply from Peter Miskimmin, the CEO of SPARC. Here is what Miskimmin said.

I am withholding the mediation agreement under section 9(2)(ba)(i) and 9(2)(j) of the Official Information Act. Under s 9(2)(ba)(i) it is necessary to protect information which is subject to an obligation of confidence and its release would be likely to prejudice the supply of similar information from the same source. Under s 9(2)(j) it is necessary to withhold the information to enable SPARC to carry on negotiations without prejudice or disadvantage.

There should be no misunderstanding of what is going on here. Peter Miskimmin is walking roughshod over the rules of swimming. In particular he is in almost daily breach of FINA Rule 13 that says, “These measures include the suspension or the expulsion from the FINA membership if any act by any governmental or other body provokes the activity of the NF or the making or expression of its will to be hampered.”

The Swimwatch application for the Record of Mediation Agreement was made in order to gather further evidence that the CEO of the New Zealand’s sport funding organization, SPARC, is out-of-control. At every turn he is “hampering” the “will” of Swimming New Zealand. Right now he effectively runs the place, lock stock and barrel. FINA do not like governments running their affairs. If Miskimmin’s authoritarian behavior was happening in some central African dictatorship, imagine what we would be saying.

Naturally I expected Miskimmin to decline my request. Open government is not this government’s most endearing quality. Look at the effort Miskimmin made to hide SPARC’s involvement in the drug laced supplement’s scandal. Of course he was going to hide the extent of his direct involvement in the management of Swimming New Zealand. Twice I’ve heard him stand up in public meetings and claim that he would never get directly involved in a sport’s governance structure. All that means is twice I’ve heard him lie like a flat fish. Why doesn’t he tell the truth? He’s up to his eye balls in managing the affairs of Swimming New Zealand.

Anticipating Miskimmin’s response I prepared an appeal to the New Zealand Office of the Ombudsman. The appeal is pretty self explanatory and is copied in full below.

OFFICE OF THE OMBUDSMAN

OFFICIAL INFORMATION COMPLAINT

Sequence of Events

1. On the 3 November 2011 a request was made to the Minister for Sport requesting information known as the Record of Mediation Agreement. This document was an agreement reached between several regions of Swimming New Zealand known as “The Coalition of Regions”, Board members of Swimming New Zealand and members of the Government funding organization (including the CEO Peter Miskimmin) known as SPARC. A copy of the email request is attached to this complaint.
2. The request for information was forwarded to SPARC for their consideration.
3. On Friday 18 November 2011 a reply was received from SPARC declining the request for a copy of the Record of Mediation Agreement. A copy of the SPARC letter is attached to this complaint.
4. On Monday 21 November 2011 this Official Information Complaint was forwarded to the Office of the Ombudsman.

Reason for Declining the Request for Information

1. The SPARC letter from CEO, Peter Miskimmin, explained the reasons for declining the request for information as follows:

   “I am withholding the mediation agreement under section 9(2)(ba)(i) and 9(2)(j) of the Official Information Act. Under s 9(2)(ba)(i) it is necessary to protect information which is subject to an obligation of confidence and its release would be likely to prejudice the supply of similar information from the same source. Under s 9(2)(j) it is necessary to withhold the information to enable SPARC to carry on negotiations without prejudice or disadvantage.”

Discussion of SPARC’s Reasons for Declining the Request for Information – One

1. The first reason is section 9(2)(ba)(i) of the Official Information Act. SPARC describe the terms of this section as protecting “information which is subject to an obligation of confidence and its release would be likely to prejudice the supply of similar information from the same source.”
2. The wording used in the Act is as follows, “protect information which is subject to an obligation of confidence or which any person has been or could be compelled to provide under the authority of any enactment, where the making available of the information — (i) would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied.
3. For the CEO of SPARC to suggest that providing a swim coach in Auckland with an agreement reached between several swimming regions and Swimming New Zealand would be likely to “prejudice” the supply of future information from the same source has no merit.
4. Swimming New Zealand receive two thirds of their annual funding from SPARC. Without SPARC Swimming New Zealand does not exist. SPARC has two appointed observers permanently sitting on the Swimming New Zealand Board. Not one decision is made at Swimming New Zealand without SPARC’s approval. It is important to remember that the purpose of this information request is to investigate the strength of SPARC’s involvement in Swimming New Zealand; not its weakness.
5. To suggest that there is the even the slightest chance that Swimming New Zealand would decline a request from SPARC for further information because SPARC was required to provide the Mediation Agreement to an Auckland swim coach is beyond belief and has no merit.
6. This reason for declining the request needs to be seen for what it is – a charade of an excuse designed to avoid SPARC’s influence over a sporting body in New Zealand becoming known and conveyed to the world headquarters of the sport.
7. It is certainly in the public interest that the extent of SPARC’s involvement in the management of swimming becomes known to the members of Swimming New Zealand.
8. It is even more absurd to suggest that the Coalition of Regions would withhold information from SPARC if the Record of Mediation Agreement was made available. I know many of those involved in the coalition. Most would welcome a FINA investigation into SPARC’s activities. Far from causing them to withhold information, the success of this application is very likely to encourage them to more generous with information in the future.
9. The transparent failings of this reason given by SPARC prompt us to request that the Office of the Ombudsman recommend that the Record of Mediation Agreement be released.

Discussion of SPARC’s Reasons for Declining the Request for Information – Two

1. The second reason is section 9(2)(j) of the Official Information Act. SPARC describe the terms of this section as protecting the Mediation Agreement “to enable SPARC to carry on negotiations without prejudice or disadvantage.”
2. The wording used in the Act is as follows: “enable a Minister of the Crown or any department or organisation holding the information to carry on, without prejudice or disadvantage, negotiations.”
3. Using this section to avoid making the Mediation Agreement public is also a case of finding any reason to avoid SPARC’s public responsibility to provide this report. The Mediation Agreement does not cover ongoing and extended negotiations. It covers an agreement reached at one meeting that decided to form a couple of committees to investigate the management of Swimming New Zealand. Those Committees have now been established and are going about their work. There is no reason for any further, extended negotiations on this subject. Effectively there are no further negotiations to protect.
4. The intent of the Act is to protect ongoing and serious matters of state being improperly used. This application for the release of the Mediation Agreement comes nowhere near that level of importance. No serious future negotiations are being put at any risk by the provision of this information.
5. As this complaint has already mentioned, future discussions between Swimming New Zealand and SPARC would not be affected in any way by the release of this report and discussions with the Coalition could very well improve.
6. SPARC are clearly very concerned at the possibility of this information becoming public. But their concern has nothing to do with protecting SPARC’s relationship with Swimming New Zealand and the Regions. SPARC’s interest, in this case, is to protect itself. And that is not a reason offered by the Official Information Act.
7. Section 9(2)(j) is not a valid reason for declining to provide the Mediation Agreement Report. We would ask the Office of the Ombudsman to rule that the Mediation Report be supplied in accordance with the terms of the Official Information Act. It is in the public interest for that decision to be taken.

Conclusion

1. This complaint is made in the belief that no harm will come to SPARC, Swimming New Zealand or the Coalition of Regions by the release of the Mediation Agreement. In fact it is probable that only good will occur.
2. Certainly the sections of the Act identified by SPARC as protecting the release of the Mediation Report were never intended to be used in a case such as this one. This is not an ongoing sensitive negotiation. There are no security or commercial factors at play that would be likely to damage the state or the public interest.
3. This is simply a record of events that took place at a meeting held to discuss the future of a sporting organization. It is in the best interests of the members of the sport that they are made aware of what went on in that meeting. SPARC may want to hide their involvement. That does not make it right. The Act was put in place for a situation just like this one. We would ask the Office of the Ombudsman to rule accordingly.

David Wright – Swim Coach, Auckland