The Price of Freedom

May 8th, 2019

I barely know anyone who would not be appalled to hear me say, “Leave Israel Folau alone. Of course he should be free to play rugby; compete in the World Cup; take on the All Blacks.” For American and UK readers Folau is a very good Australian rugby player who has the bad habit of saying outrageous stuff on social media. His most recent outburst said, “Warning: Drunks. Homosexuals. Adulterers. Liars. Fornicators. Thieves. Atheists. Idolaters. Hell awaits you. Only Jesus saves.”

Australian Rugby has found him guilty of a “high level breach of the professional players’ code of conduct”. The three-person panel has now retired to decide on a sanction for Folau. For the good of sport, for the welfare of rugby and for the health of our way of life I hope Folau gets off. But before you start throwing bricks through my living room window let me explain why.

Of course what Folau said is impossibly disgusting. Of course it has no Christian merit. It has no Muslim merit either, or Hindu or Buddhist or any other faith that I’m aware of. As a person his words show Folau to be a sanctimonious, dumb bigot, hooked on the Old Testament and well short of the glory of his God. Folau needs to remember that in his religion God’s son said, in Luke 6:37, “Do not judge, and you will not be judged. Do not condemn, and you will not be condemned. Forgive, and you will be forgiven.”

The Quran gives Folau the same message. In 39.54 the Quran says, “O My Devotees, who have committed excesses against their own selves, do not despair of the mercy of Allah. Surely, Allah forgives all sins. Indeed He is the most Forgiving, the Merciful.”

And so I have nothing but contempt for what Folau said. His attack on members of the gay community and others is despicable. It shows him to be worthy of nothing but our absolute contempt. He may be a good rugby player but he certainly falls short of the standards required of a decent human being.

Being gay is not a sin. Linking gays with thieves and liars is vile and shameful. Being as rich as Folau is puts him at more risk of Christian wrath than any of those he nominates for eternal damnation.

BUT – I defend without qualification Folau’s right to express his opinions without sanction by the Australian Rugby Union or anyone else.

My opinion on Folau was first settled in 1988 in the United States. I know United States’ law is not New Zealand or Australian law but, in this case, what the American Supreme Court decided has a message for us all. The case is called “Hustler Magazine, Inc. v. Falwell, 485 U.S. 46”.

Known for its explicit pictures of nude women and political satire, Hustler magazine printed a parody ad that targeted Jerry Falwell, a prominent Christian fundamentalist televangelist.

The Hustler parody included the transcript of a spoof interview, where, misunderstanding the interviewer’s question about his first time drinking Campari, Falwell casually shares details about his first sexual encounter, an incestuous rendezvous with his mother in the family outhouse while they were both “drunk off our God-fearing asses on Campari.” Finally, the interviewer clarifies that he’s asking if Falwell had tried Campari, again, Falwell answered, “I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit sober, do you?”

Of course Hustler’s parody was disgusting. But the American Supreme Court decision contains lessons for the Australian Rugby Union. This is what the Court said.

“At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.” The First Amendment envisions the sort of robust political debate that takes place in a democracy.

The Court held that the First Amendment gives speakers immunity from sanction with respect to their speech unless their speech is false and made with “actual malice”. Although false statements lack inherent value, the “breathing space” that freedom of expression requires in order to flourish must tolerate occasional false statements, lest there be an intolerable chilling effect on speech that does have constitutional value.”

It may sound incredibly arrogant but I agree with the American Supreme Court. Although Folau’s thoughts and ideas are repugnant and have no place in any society, although Folau would be better off in a shed preaching his hate to likeminded bigots, although seeing him on a rugby field turns my stomach – more important by far is “the freedom to speak one’s mind. It is not only an aspect of individual liberty – and thus a good in itself – but also is essential to the common quest for truth and the vitality of society as a whole.”

And so I am hoping Folau gets off this charge. He will not be a better person because of it. But his country, his sport and all of us everywhere will be better and stronger as a result.

Behind Closed Doors

May 6th, 2019

This morning I had a discussion with a friend. She was concerned that the series of Swimwatch stories about the elusive Marris Report was giving away too much information to “the enemy” – Swimming New Zealand (SNZ). The four stories she was referring to are, “How Corrupt, This Corrupt” that publishes the Privacy Commission’s final report into their investigation of my privacy complaint. The Commission reached the following conclusion, “Consequently, it is my final view SNZ has breached principle 6 of the Act and has interfered with your privacy.”

The second story in the series was “Promises Made Promises Broken”. This post discussed the legal shortcomings of the excuses used by SNZ to justify their secrecy. The post sets out the legal case for providing me with a copy of the Marris Report.

The third story was “Damages”. This explained the makeup of the $240,600 damages claim that has been included in the Human Rights Tribunal case. The amount included $3,600 in lost book sales, $162,000 in lost wages and $75,000 in hurt and reputation damages.

And the fourth and final post was, “The Sound and Pain of Silence”. This story explained the tactic of silence frequently used by SNZ to punish those who criticise their actions. They make an accusation, throw buckets of mud and vanish to watch their victims suffer. Nothing to do with us they say.

My friend is right. The Swimwatch series does “give-away” our current position, our plans for the future and our claim for damages. There are no secrets. “The enemy”, as she calls the inhabitants of SNZs Antares Place office, knows everything. Of course there are dangers in that. Of course SNZ will try to use the Swimwatch information to screw me blind. Of course it helps “the enemy”.

BUT – the decision to openly discuss all aspects of the privacy case is justified for the following reasons.

First, it would be the height of hypocrisy to criticise SNZ’s code of silence and then use the same policy myself. SNZ tell the membership nothing. Their Board Meetings are secret. Significant events like being found guilty of a breach of privacy go unreported. SNZ run a closed shop. With considerable justification I have been extremely critical of the policy of silence. I have called it a “cowardly, immoral and despicable means of sanction”. It would be impossibly duplicitous for me to resort to the same tactic.

Second, I have been hurt by the SNZ’s use of secrecy before. I do not want to make the same mistake again. During the 1992 Barcelona Olympic Games I asked if Toni Jeffs could live with her mother in a hotel rather than the Olympic Village. Permission was granted. Before we returned to New Zealand SNZ published a story that Toni had left the village without permission. I complained. A meeting was held in the Olympic Committee offices. It was decided that SNZ had lied and Toni was owed an apology. SNZ apologized on the condition that their apology would remain confidential. I agreed. And that was a huge mistake. For years afterwards I was asked about why I was involved in the Olympic “absence without leave” case.

Two years after the Games I was driving from Hawkes Bay to Wellington. I called into a motor garage in Pahiatua to get a flat tyre repaired. The mechanic doing the repair asked me, “Are you the coach of that swimmer who ran away from the Olympic village without permission?” That’s what SNZ’s secrecy earned me. I will not be caught the same way again.

Third, others have been hurt the same way. In the post, “The Sound and Pain of Silence” I told the story of a coach who called out a high school swimmer’s misbehaviour and was the subject of SNZ’s silent treatment. It has gone on for years. It must be stopped. Reform will not be achieved by indulging in the same cowardly wrongdoing. It is important to show you can be right, you can win and you can be open at the same time.

And fourth, the openness demonstrated by the Swimwatch stories is not done to attract publicity. On the contrary publicity is a sad by-product of informing swimming’s membership. Swimwatch stories on this subject are no “look-at-me” ploy. The membership has a right to know that those who run their sport have been recommended by the government to undertake a course of privacy training. SNZ sure isn’t going to tell them, so we will. As they say – fresh air is the best disinfectant.

And fifth and finally I remain convinced that disclosing the truth can never hurt. So SNZ get to know our financial claim. So they get to read our interpretation of the Privacy Act and SNZ Rules. So what? If our position is sound, if we tell the truth, if our claim is justified, whether SNZ know about it or not will not matter. The Courts are not stupid. They will decide on the merits of our case no matter what SNZ know beforehand.  As sure as god made little green apples being open with the truth beats being secret with a lie. That’s a message SNZ still has to learn.

And so I am deeply grateful for my friend’s concern. Certainly she has my best interests at heart. She wants to see the Marris Report case resolved in a way that benefits the membership of swimming. She wants me to win. However with all the risks involved we will stick with fresh air. It sure beats the stale, putrid fumes that seep under the doors of the SNZ office.

The Sound & Pain of Silence

May 5th, 2019

Three previous Swimwatch posts have discussed the position of my efforts to gain access to the Marris Report, the legal arguments that support my position and the amount of financial damages Swimming New Zealand (SNZ) has caused me.

One of the features of what has happened is the punishment of silence. It is a cowardly, immoral and despicable means of sanction; features well suited to the SNZ halls of power. I described how the sanction of silence works in the Swimwatch post titled “Damages”. It is worthwhile repeating here.

SNZ Rules list ten sanctions SNZ can impose on a member found guilty of wrongdoing. Things like a reprimand, a suspension, an expulsion, a fine and the cancelation of results or awards can be imposed on guilty members. But there is an eleventh punishment that is far worse than any of the other ten. It is a sanction not published in SNZ Rules; it is the sanction of silence. SNZ are not allowed to use it. But they do.

If SNZ want to take a member down, they latch on to some trumped up charge, have a trial and refuse to publish the “not guilty” verdict. The swimming world immediately assumes the worst. Guilty as charged is the verdict of silence. A reprimand, a suspension, an expulsion, a fine or the cancelation of results or awards are minor compared to a lifetime spent under the cloud of suspicion created by SNZ’s silence. It is wrong. It is immoral. And we are in the process of having it ruled illegal.

I am not the first person to suffer at the hands of the SNZ silent treatment. Jon Winter knows the sanction of silence only too well. But with this case I certainly hope to be SNZ’s last victim.

As the quote says I am not the first victim of this SNZ tactic. SNZ frequently uses silence to punish its victims. Whenever SNZ feels they are in the wrong. Whenever they want to avoid admitting fault, their go-to position is to close ranks, stay silent and let their innocent victims die a death from suspicion and gossip.

Their spiteful behaviour has to be stopped. It is one reason why I am demanding the right to read the Marris Report and will sue SNZ for the damage they have done. Because you see I am not alone. Other coaches have been hurt. But don’t expect the New Zealand Swim Coaches Association to do anything about protecting its members. The Privacy Commissioner ruled that SNZ violated my privacy. The government ruled that I was maligned – but have I heard anything from the NZSCA? Has the NZSCA come to the defence of one of its wronged members? Not a word is the answer. They are pathetic

But let me tell you another story of NZSCA abuse. I’m going to avoid using real names or places because I want to avoid a debate over the details and it is the principle of what happened that matters, not the personalities. However I may well add these events to my Human Rights Tribunal proceedings. Time will tell.

So let me tell you about Coach A; a brilliant coach who has successfully coached national champions and representatives. Like most coaches swimmers from his squad attend several high schools. Competition between high schools is an interesting diversion from main stream club competition. Some time ago the local school district promoted its annual school’s relay competition.

The best Swimmer B in Coach A’s squad decided to enter a team from his High School C. Aware that High School C only had two good swimmers, Swimmer B decided to get two of Coach A’s swimmers from other high schools to swim for his High School C team. Ring-ins were allowed but only if the organisers approved the outsiders.

Swimmer B did not tell the organisers about his plans for the boy’s team and he also arranged for the high school’s girls team to swim the same swimmer twice. And that is what happened. The boy’s team swam with two ring-ins and the girl’s team competed with the fastest swimmer swimming twice. And both teams won.

That night Swimmer B posted photographs of the winning teams on social media. But by this time Coach A had heard about the cheating. He was furious well aware that the purpose of sport was to do more than win a swimming race. Coach A posted a comment under the photographs that said something like, “I’d be impressed if you hadn’t cheated.”

Would you believe it if I told you the father of Swimmer B took Coach A’s comment as an insult to his son and filed a complaint with the NZSCA? Would you believe it if I told you the NZSCA took the complaint seriously? Would you believe it if I said the NZSCA held a hearing and demanded an explanation from Coach A? And would you believe it if I told you the NZSCA found Coach A guilty of calling a cheat, a cheat and sentenced Coach A to media training with one of the NZSCA chosen ones, Coach D. I’ll tell you more about Coach D shortly.

The good news is that Coach A had enough backbone to tell the NZSCA to take a running jump. There was no way he was going to accept a reprimand for doing the right thing; for calling out bad behaviour. It is unbelievable that another SNZ organisation would seek to sanction a good coach going about the business of calling out bad behaviour in his team. SNZ and the NZSCA should be ashamed of themselves – again!

Today, when Coach A asks for an update on his case, he gets the silent treatment. Unless we add his case to our Tribunal case Coach A will forever live with the cloud of being reprimanded for abusing a swimmer on social media. A national organisation, that should protect their member, instead decided to protect a cheat and his parents. Where on earth have I heard of that before.

Before I finish let me tell you about Coach D, the person chosen by the NZSCA to instruct Coach A.

In January 2000, a swimmer of mine was in Sydney to compete in the Australian World Cup event. She was fifteen. At the New Zealand Winter Championships in Wanganui in September 1999, she had improved her PB in the 200m breaststroke from 2:48 to 2:38 in one swim and showed no signs that her improvement was going to stop. The night the swimmers arrived in Sydney, Coach D took her aside after dinner in the Novotel ballroom. He told her that she should pack her bags and go home now, before competing, because she was too slow and always would be. He told her that she was “an embarrassment”. He told her that she would amount to nothing and should stop trying. I received a virtually incoherent phone call from a Sydney payphone that night, having to embark on the dreadful task of comforting my teenage swimmer trans-Tasman, who’d been told by Coach D that she was predestined to failure and ridicule. I talked her round. She agreed to ignore what Coach D had said and compete anyway.

Within two years, my swimmer was New Zealand champion over 200m breaststroke, first short course in Rotorua in September 2001, then long course in Auckland in early 2002 where she also won the 100m title. Less than two years later, she broke the New Zealand open record for the short course 200m event, a record that stood for over three years before being bettered by Kelly Bentley, trained by Gary Hurring in Wellington. In August 2002, my swimmer took up a full ride scholarship to Washington State University, where she qualified for and swam in the NCAA Division I Championships in both the 200 yard breaststroke and 200 yard individual medley and was part of the team that broke the WSU university record in the 4 x 200 freestyle relay in 2005.

Imagine if she had listened to Coach D and thrown away her swimming career before it had even begun. Coach D has no place telling anyone, let alone Coach A, how to conduct themselves online or anywhere else.

 

Damages

May 4th, 2019

Two previous Swimwatch posts have discussed Swimming New Zealand’s (SNZ) decision to deny me the right to read the Marris Report into complaints made about my coaching.

SNZ has been getting legal advice on this dispute from as far back as August 2018. With the futile “extensive submissions” they made to the Privacy Commission their lost cause must be costing a fortune. SNZ charge athletes $5,300 to go to a World Championships and waste money on protecting their own skins. Before we are done the cost will be much higher than it is now.

The case before the Tribunal will include a claim for compensation for damages and harm caused by the SNZ decision. The relevant section of the Privacy Act says.

Section 88 Privacy Act 1993

88 Damages

(1)

In any proceedings under section 82 or section 83, the Tribunal may award damages against the defendant for an interference with the privacy of an individual in respect of any 1 or more of the following:

(a)

pecuniary loss suffered as a result of, and expenses reasonably incurred by the aggrieved individual for the purpose of, the transaction or activity out of which the interference arose:

(b)

loss of any benefit, whether or not of a monetary kind, which the aggrieved individual might reasonably have been expected to obtain but for the interference:

(c)

humiliation, loss of dignity, and injury to the feelings of the aggrieved individual.

SNZ Rules list ten sanctions SNZ can impose on a member found guilty of wrongdoing. Things like a reprimand, a suspension, an expulsion, a fine and the cancelation of results or awards can be imposed on guilty members. But there is an eleventh punishment that is far worse than any of the other ten. It is a sanction not published in SNZ Rules; it is the sanction of silence. SNZ are not allowed to use it. But they do.

If SNZ want to take a member down, they latch on to some trumped-up charge, have a trial and refuse to publish the “not guilty” verdict. The swimming world immediately assumes the worst. Guilty as charged is the verdict of silence. A reprimand, a suspension, an expulsion, a fine or the cancelation of results or awards are minor compared to a lifetime spent under the cloud of suspicion created by SNZ’s silence. It is wrong. It is immoral. And we are in the process of having it ruled illegal.

I am not the first person to suffer at the hands of the SNZ silent treatment. Jon Winter knows the sanction of silence only too well. But with this case I certainly hope to be SNZ’s last victim. For three years SNZ’s silence has caused me financial loss. It is only proper that SNZ recompense me for the damages they caused.

The balance of this post will quantify those damages.

Pecuniary Loss

I have written three books on coaching swimming. (Swim to the Top, Swimming a Training Program and Junior Swimming) The first two were published by a top publisher of books on sport, German company Meyer & Meyer. Both were published before the SNZ investigation and their decision to withhold the Marris Report. The third book was published by the same publisher one year ago well after the SNZ decision.

There has been a dramatic difference in the sale of the most recent book compared to the first two. The first two both reached the Amazon,com top selling sports book’s list. Sales of the most recent book are well below that level. It is my view that potential customers have been influenced by the unresolved issues caused by SNZ’s refusal to provide me with the Marris Report that could clear my name. In the first year of sales the difference is between 2000 copies of each of the first two books sold and 200 copies of the third book – a difference of 1800 books. My income from 1800 books would have been $2.00 per book or $3,600. I am claiming this loss from SNZ.

Loss of any benefit

My coaching career was shortened as a direct result of SNZ’s decision to withhold the Marris Report into this complaint. The complaint was made in early 2016. Since then I have worked for one year in Saudi Arabia. The Swimming New Zealand decision to withhold the investigator’s Report has cost me two years of coaching work in either New Zealand or the United States.

The principal focus of my coaching career had been in the United States. I undertook the work and time to secure a Level Five, American Swimming Coaches Association qualification. This is widely recognised around the world as the highest swim coaching qualification. It involved four years academic study and practical coaching to an Olympic Games level. The administration cost involved was approximately $US2,500. No claim is being made in respect of this amount.

In addition in 2007 the American Swimming Coaches Association awarded me their Certificate of Excellence for “Outstanding Coaching Achievement in the United States of America”.

In order for me to live and coach freely in the United States both my wife and I incurred the cost of securing American Green Cards. The legal and administration cost involved was approximately $12,500. No claim is being made in respect of this amount.

The SNZ decision to withhold the Marris Report into these complaints meant I simply could not apply for work as a swim coach in New Zealand or the United States. If I had applied for a coaching position it would be necessary to be open about the investigation into my behaviour but admit I was unable to provide the conclusions of the investigation because of SNZ’s decision to keep them secret.

In the world of the “Me too” movement in the United States and New Zealand that information would instantly exclude me from any position involving teaching children; as it most properly should.

Trying to hide the existence of the investigation was never an option. Firstly it was too well known in the New Zealand and American swimming community and secondly I do not condone that form of resumé padding.

For two years the SNZ refusal to provide me with the Marris Report has denied me the benefit of working in New Zealand and the United States. Therefore I am seeking payment of two year’s New Zealand salary for a swim coach of my training, experience and record by way of compensation.

This claim is based on the fact that my qualifications and coaching record place me in the top 10% of New Zealand swim coaches. I am not taking into account that in the USA I would be paid 20% more than in New Zealand.

The average pay for a Swimming Coach in New Zealand is NZ$59,869 per year. The top 10% of coaches in New Zealand are paid between $70,000 and $81,000 per year. Reference the following; https://www.payscale.com/research/NZ/Job=Swimming_Coach/Salary

For the “loss of any benefit which the aggrieved individual might reasonably have been expected to obtain but for the interference”, I am therefore claiming the sum of two years at $81,000 per year being payment for the two years I have been unable to work as a coach. The total amount claimed is $162,000.

Humiliation, loss of dignity, and injury to feelings

The delay in providing the Report has caused all three; humiliation, loss of dignity, and injury to feelings. The accusations made were serious. They were career ending. They were also personally destructive to my social and personal life. I was accused of suggesting female swimmers get pregnant in order to take training advantage of the early pregnancy increase in blood volume. I was accused of then recommending the foetus be aborted. I was accused of an obsession with one swimmer’s breasts and secretly photographing that swimmer. I was accused of demanding female swimmers attend an Auckland strip club. The list of accusations was terrible, disgusting and wrong.

Even sitting through three days of interrogation during the investigation, answering questions that I accept were necessary was a distressing experience. But worse than that has been the three years since 2016 that I have had to answer questions from parents, swimmers, coaching peers and the press about the investigation. In all cases there has been three years of suspicion based on the question, “Why doesn’t he know about the results of the investigation? What is he hiding?”

Explaining that SNZ refused to provide the Marris Report was the truth but was never adequate. Always there was the constant suspicion that I was hiding something. The Marris Report wasn’t available because I wanted to keep its findings secret. It has been a three year long cloud caused by SNZ’s action. It has seriously affected my family, my health, my friends, my work colleagues and my public reputation. For this reason I am claiming the following amounts.

Professional Humiliation $25,000

Loss of dignity to family and friends $25,000

Personal Injury $25,000

Total $75.000

Summary

Compensation sought in respect of the serious harm caused by the decision of SNZ to withhold the investigation Marris Report is:

Pecuniary Loss $3,600

Loss of wages benefit $162,000

Humiliation, loss of dignity, and injury to feelings $75,000

Total compensation claimed $240,600

And to think all this could have been avoided if Cotterill, Johns and their approachable lawyer had handed over the Marris Report three years ago. Every dollar is down to them.

Promises Made Promises Broken

May 3rd, 2019

I should begin with an apology. This post is going to discuss the legal right I have to access the Marris Report into complaints about my coaching. I’m afraid the arguments make for pretty dull reading. They will however be important in deciding whether Swimming New Zealand (SNZ) is eventually required to make the Report available. They will also determine the liability SNZ has to the payment of damages. And so, dull or not, here we go.

On 1 August 2018 I asked SNZ for a copy of the Marris Report. On 10 August 2018 SNZ’s reply hinted at the legal arguments for refusing to provide me with the Report. Here is the SNZ reply.

Steve Johns <steve@swimming.org.nz>

To:nzdaw@yahoo.co.nz

‎10‎ ‎Aug‎ ‎2018 at ‎3‎:‎04‎ ‎PM

Dear David,

Thank you for your request for personal information under the Privacy Act concerning the report prepared by Michael Marris.

Swimming New Zealand refuses your request on the following grounds:

  1. The disclosure of the report would require the unwarranted disclosure of the affairs of other individuals; and
  2. The disclosure of the report, being evaluative material, would breach an express promise made to Michael Marris that the report would remain confidential to the Chair and Board of Swimming NZ.

Regards,

Steve Johns
Chief Executive Officer

The balance of this post will examine the legal arguments used by Steve Johns to justify withholding the Report.

First – “unwarranted disclosure of the affairs of other individuals;”

It seems too simple to ask why don’t SNZ provide me with the Marris Report after redacting the sections that refer to “the affairs of other individuals”? Problem solved.

However, more important, SNZ”s current position ignores the purposes of the Marris investigation. Prior to the investigation the SNZ CEO, Christian Renford, and Michael Marris explained the investigation to me. The investigation would (ONE) determine whether I was guilty of the charges and (TWO) whether I had been subject to false accusations by disgruntled swimming club members. There were two parties involved in the investigation.

SNZ now seek to avoid the fact that the truthfulness, motives and behavior of the parties who made these allegations were an integral part of the investigation. It clearly follows that if the truthfulness, motives and behavior of these individuals is central to the investigation their disclosure to me is warranted.

In this case the purposes of the Report and the purposes of justice are best served by the warranted disclosure to me of the affairs of my accusers. Hiding those affairs would be unwarranted and would deny the whole point of the investigation and the Report.

SNZ’s opinion that the distribution of the Report to me would represent an unwarranted disclosure of the affairs of my accusers means that SNZ put more value on the privacy of false accusers than advising the accused of his guilt or innocence. Accusers, probably found guilty of lying, are protected by SNZ’s view of privacy while an innocent accused is hurt by SNZ’s secrecy.

Second – “The disclosure of the report, being evaluative material, would breach an express promise made to Michael Marris that the report would remain confidential to the Chair and Board of Swimming NZ.”

Steve Johns clearly does not understand the use of the term “evaluative material”. The dictionary and, in this case, the legal meaning of evaluative is to appraise or to assess. What the Privacy Act is referring to is an academic, trade or professional examination or inspection – a regular, usually periodic and standard evaluation of the value or professional standard of a business or person; as in an inspection or exam. Information disclosed in a semi judicial investigation of alleged misbehaviour such as the Marris investigation was never intended to be defined as “evaluative material”. If it was, information in every Court case could be defined as “evaluative” and held in secret by the Privacy Act. That would make a mockery of an open system of justice.

The material gathered in the course of the Marris investigation does not fall within the Act’s definition of “evaluative material” and does not exclude me from reading its conclusions.

The second portion of SNZ’s reason for withholding the Marris Report is that it “would breach an express promise”. This raises two important questions.

Was this the only promise made in relation to the Marris Report?

Was SNZ in a position to make a promise of confidentiality that included me?

SNZ need to come clean. Who made this promise of confidentiality to Michael Marris? Is it in writing? Can we see the promise? And was Michael Marris aware than SNZ was including me in their promise or did Michael Marris believe confidentiality meant confidentiality from the general public?

Because Christian Renford promised me I would receive a copy of the Report there is a serious contradiction between the promise SNZ alleges it gave to Michael Marris and the promise SNZ gave to me

SNZ has also forgotten, or chooses to ignore, the fact that its constitutional Rules promise me that I will be supplied with a copy of the final determination of an investigation. SNZ Rules promise me the Marris Report. This is what the Rules say.

Rule 9.2 Written Reasons: “The Panel will with as little delay as possible after the conclusion of a hearing, contemporaneously provide a written determination to the parties, which sets out the reasons for the determination.”

That is a promise made by SNZ’s Rules that promises I will be supplied with the Marris Report.

And finally in Principle 6 of the Privacy Act, subject to Parts 4 and 5, I am promised access to the Marris Report. This is what Principle 6 says.

“Where an agency holds personal information in such a way that it can be retrieved, the individual concerned shall be entitled – to have access to that information.”

That is a promise by the law that subject to parts 4 and 5, I will be supplied with the Marris Report.

And so we have a situation where the CEO of SNZ, the Rules of SNZ and the law have all promised me a copy of the Marris Report.

If any or all of those three promises were made to me, the alleged promise made to Michael Marris that his report would be kept confidential from me is invalid and should never have been made. SNZ did not have the authority or discretion to make such a promise.

Third – “made to Michael Marris that the report would remain confidential”

I emailed Michael Marris and asked him about this alleged promise of confidentiality. This is his reply.

Michael Marris <mem@stratgov.com>

To:David Wright

‎14‎ ‎Aug‎ ‎2018 at ‎8‎:‎15‎ ‎AM

Good morning David

Thank you for your note. This is essentially a matter for yourself and SNZ, and I suggest that organisation is your most appropriate conduit.

Kind regards

Michael

There is no mention of confidentiality, no mention of promises and no mention of his report being kept secret from me. But more important Marris calls SNZ – “a conduit”.

The dictionary defines conduit as “a channel through which something is conveyed”. So as far as Michael Marris is concerned SNZ is a channel through which his report should be conveyed to me.

Clearly the most likely interpretation of the Marris email is that he never dreamed that the confidentiality of his findings included me, the subject of those findings, being denied access. Marris thought confidentiality meant – from the general population – but available via the SNZ conduit to me.

Before concluding this post I want to go back to the SNZ claim that the Marris Report is “evaluative material”. We are fortunate that the Act discusses the meaning of “evaluative material”. This is what the relevant portion of the Act says:

“For the purposes of subsection (1)(b), the term evaluative material means evaluative or opinion material compiled solely for the purpose of determining whether any contract, award, scholarship, honour, or benefit should be continued, modified, or cancelled.”

I have already discussed why the Marris Report’s findings are not evaluative. But, in addition the Marris report was never “solely for the purpose of determining whether any benefit should be continued, modified, or cancelled.” The purposes of the Marris Report were much wider and more numerous than that.

I have already discussed how the investigation examined my behavior and the behavior of my accusers. In addition however the findings of the Marris Report, in SNZ Rules, are said to allow SNZ to:

(a) Issue a written warning;

(b) Direct that the Member attend counselling

(c) Withdrawal of any awards, placings, records, activities or events;

(d) Suspend the Member’s membership;

(e) Suspend the Member from participating in any swimming related activity

(f) Require an apology, or order reparation or compensation

(g) Recommend the expulsion of the Member

(h) Enforce any sanction imposed by the IOC, FINA or the ST

(i) Any other form of discipline the Panel considers appropriate;

(j) Determine whether the accusations were false and the accusers should be reprimanded, suspended, expelled or fined

That is ten possible sanctions involving at least two possible parties. A list of ten sanctions is far more numerous and wider in scope than the one “sole” purpose described in the Privacy Act. The Marris investigation had multi sanctions, multi possible purposes and involved two subjects. The “sole purpose” claimed by SNZ has no relevance to my right to access the Marris Report.

And so we come back to Steve Johns’ email and can say:

The disclosure of the Report does not require the unwarranted disclosure of the affairs of other individuals. The behavior of those individuals was one central purpose of the investigation. This was declared before the investigation began. The disclosure of the behavior of my accusers was central to the investigator’s findings. Therefore its disclosure to me is fully warranted.

The disclosure of the report does not involve evaluative material within the meaning of the Act. No express promise of confidentiality that included me was promised to or required by Michael Marris. An email from Marris, a promise from the CEO of SNZ, SNZ’s Rules and the provisions of the Privacy Act mean that SNZ had no authority or discretion to make a promise of confidentiality that included me. Certainly such a promise, if it was made, was not enforceable. In addition the investigation had many purposes.

The reasons advanced by SNZ for withholding the Marris Report are not valid. The Marris Report should be released.