How Corrupt? This Corrupt

Some readers of my previous post on training camps may have noticed this sentence. “Even when the government recommends they reverse a policy SNZ are prepared to defy the law.” I can imagine and certainly understand than many would be thinking, “There he goes again; accusing Swimming New Zealand (SNZ) of bad behaviour without reason or proof.”

Those thoughts are justified. Many will have seen Cotterill, Johns and Francis at the AGM, or around some swimming pool or buying an executive coffee at the Millennium Pool’s Wholefood Café. Good management seeps from every pore; the dark suit and conservative tie, or well pressed slacks and casual checked shirt. The impression of good governance is unmistakable.

But, in my opinion, it is a shame. It’s a con. The façade is a hollow symbol signifying nothing. And here is the proof.

Three years ago SNZ received a complaint about my coaching. The complaint was made up of five serious accusations. SNZ decided to investigate and appointed a psychoanalyst called Michael Marris to head the investigation. I agreed to participate on the condition that I receive a copy of the final report.

I sat through three days of questioning by Marris and waited for the Report. It never arrived. The terrible accusations were out there but no Report was available to put the record straight. Finally I asked SNZ for the promised copy of the Marris Report. Steve Johns refused. So I complained to the Privacy Commission. Surely they could get a Report I was clearly entitled to read. Surely SNZ would not defy the law.

But that, in my opinion, is exactly what SNZ did. The Privacy Commission read the Marris Report and recommended to SNZ that large portions of it should be made available to me. But SNZ refused. So now you know why I wrote in the last Swimwatch post, “Even when the government recommends they reverse a policy SNZ are prepared to defy the law.”

The final act of the Privacy Commission was to write a letter of closure, saying they had done their best. SNZ had refused. The Courts now need to decide on the Report and the amount of damages. Here is the Privacy Commission’s letter. Note: I have typed it out in full because the letter was sent as a PDF and therefore cannot be copied into Swimwatch.

Privacy Commissioner

18 April 2019

David Wright

Sent by email only to:

Dear Mr Wright

Privacy Act complaint: David Wright and Swimming New Zealand (our Ref C/29816)

1. I refer to previous correspondence concerning your Privacy Act complaint about the actions of Swimming New Zealand (“SNZ”).

2. My final view is that SNZ has interfered with your privacy under section 66 (2)(a)(i) of the Privacy Act. This is because Swimming New Zealand has not demonstrated any proper basis for its decision to withhold all the information in the report from you.

Background to this complaint

3. In 2016 SNZ conducted an investigation into complaints made against you.

4. On 1 August 2018 you requested personal information from SNZ. Specifically, you requested a copy of the report written by Michael Marris following an investigation into the complaints.

5. On 10 August 2018 SNZ declined your request relying on sections 29 (1)(a) and (b). You complained to our office and asked us to review SNZ’s response to your request.

6. Having reviewed the report, we formed the preliminary view that SNZ should release a substantial amount of information to you.

7. On 11 April 2019 responded to our office’s preliminary view. SNZ provided extensive submissions on why it disagrees with our findings and does not consider it would be appropriate to release the report to you.

SNZ’s breach of the Privacy Act

8. Your complaint raises issues under principle 6 of the Privacy Act. Under this principle individuals have a right to request personal information about themselves held by and agency, unless one of the withholding grounds in sections 27-29 apply.

9. In this case SNZ has not abandoned its position that it needs to withhold the report from you in order to protect the privacy of other individuals.

10. Consequently, it is my final view SNZ has breached principle 6 of the Act and has interfered with your privacy.

This complaint is now closed

11. This is my final view. Unfortunately, we have reached the end of our process, and there are no further steps we can take in respect of your complaint. I have strongly recommended SNZ undertake privacy training.

12. When this office finds an interference with privacy, we have the discretion of referring a matter to the Director of Human Rights Proceedings (“the Director”) who may take it as a case before the Human Rights Review Tribunal (“the Tribunal”).

13. There are a number of issues we must take into account before making this decision. They include whether a significant issue of law is involved and the likely outcome in the Tribunal.

14. Having reviewed this file, I do not consider that it warrants referral to the Director. This is because it does not meet our Office’s criteria for a referral. These include:

• The seriousness of the complaint

• Whether a significant issue of law is involved

• Whether the complaint points to a wider systemic problem affecting a potentially wider group of individuals

• Whether the respondent agency is on notice as a result of a prior  complaint raising similar issues, but not referred

• The degree of culpability of the respondent agency

• The need for a deterrent message for the particular type of respondent agency behaviour

• The respondent agency’s attitude towards the investigation

15. If you wish to pursue the matter, you are free to take the matter as a case before the Tribunal yourself. If you decide to do so, you can visit the Tribunal’s website1 for more information (including copies of the necessary application forms) or you can write to the Tribunals Unit, Ministry of Justice, Private Bag 32001, Wellington.

16. As part of initiating proceedings in the Tribunal you will have to show that we have conducted an investigation into this complaint. I enclose a Certificate of Investigation that you can give to the Tribunal for that purpose.

17. Thank you for bringing this matter to my attention. The file relating to this complaint is now closed. I am sorry that we could not be of more assistance.

Yours sincerely

(Name withheld)

Investigations and Dispute Resolution

Encl:  Certificate of Investigation

Fact sheet on taking a case to the Tribunal

So there you have the position so far. We will spend the next few Swimwatch posts analysing the Privacy Commission’s letter. For all members of SNZ it is important to ensure SNZ act in accordance with the law. Their suits and ties are out of keeping with their behaviour. In the meantime this case will proceed to the next stage including a request for substantial damages. For three years some horrendous accusations have been allowed, by the actions of SNZ, to go unanswered. SNZ should pay the price attached to their wilful neglect.

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