Chief Ombudsman backs Defence Force withholding Hit and Run info

The Chief Ombudsman has largely backed New Zealand Defence Force decisions to withhold information relating to Operation Burnham in Afghanistan in 2010.

Hit and Run Photo: Supplied

Peter Boshier also found the Defence Force created some public distrust by not being as responsive as it should have to requests for information.

In their book Hit and Run, Nicky Hager and Jon Stephenson claimed six civilians died and 15 were injured in a controversial attack on two Afghan villages led by the Special Air Service eight years ago.

The Defence Force is continuing to deny the soldiers killed civilians, saying one insurgent was shot dead.

The Chief Ombudsman has considered five complaints and has found the Defence Force was justified in most of its decisions.

“Some of the withheld information was received from other countries who didn‘t wish to declassify or release it”, Mr Boshier said.

“And for NZDF to do so would have gravely affected other nations‘ willingness to share information with us in future.

“Much of the withheld information also contained sensitive details which, if released, could prejudice New Zealand‘s defence and security.”

Mr Boshier said the Defence Force could have been “considerably more responsive” in how it handled requests for information.

“It has given the appearance of reluctance on the part of NZDF and requesters have understandably developed some mistrust as a result.”

He recommended the Defence Force make public information it holds concerning the “identification of insurgents killed during Operation Burnham”.

He has also asked the Defence Force to release four briefing papers and appendices relating to “government knowledge” about the operation.

The Defence Force said in a statement that it welcomed the Ombudsman‘s findings.

It said it has agreed to release additional material and is working to do this “as soon as possible”.

A summary of his findings:

  • Rules of Engagement: decision to withhold upheld.
  • Location of Operation Burnham: following the Chief Ombudsman‘s provisional opinion, NZDF published further information about the location of Operation Burnham on its website on 6 March 2018. NZDF has now provided everything it held relevant to the requests on this issue.
  • Planning, execution and review of Operation Burnham: decision to withhold post-activity reports, related information, and video footage upheld. Following the Chief Ombudsman‘s provisional opinion, NZDF published a list of reports, dates and titles (with redactions) on 6 March 2018 on its website.
  • Civilian and insurgent casualties: decision to withhold International Security Assistance Force (ISAF) assessment report upheld. NZDF clarified its position on potential civilian casualties, and why its previous statements had been inconsistent with an earlier ISAF press release, in its information release of 6 March 2018. NZDF also wrote to one requester with a comprehensive explanation for these inconsistencies.
  • Recommendation that NZDF release the information it holds concerning the identification of insurgents killed during Operation Burnham.
  • Recommendation that NZDF release the information it holds concerning the identification of insurgents killed during Operation Burnham.
  • NZAS treatment of a prisoner: Decision to withhold upheld. At the time of the request, release would likely have prejudiced NZDF‘s investigation into the allegations. NZDF released a summary of the outcome of its investigation in March 2018. If this information doesn‘t satisfy the requester, a fresh request can be made under the OIA now the investigation is concluded.
  • Government knowledge about the operation: In his Final Opinion, the Chief Ombudsman upheld NZDF‘s decision to withhold two legal opinions, but did not accept there was a basis for withholding other briefing material in full. He has recommended release of four briefing documents and appendices, with some redactions.

The full Final Opinion is available