Many readers will know that for some time I have been trying to obtain from Swimming New Zealand (SNZ) the Report prepared by an Auckland criminal psychoanalyst into a complaint made about my coaching. SNZ asked for the investigation and promised me a copy of the Report. I was told the purpose of the investigation was to establish the facts of the complaint. My guilt or innocence was the purpose for which the Report was being prepared. If I was innocent publication of the Report would clear my name. If I was guilty the swimming community deserved to be warned. My coaching was directly related to the purpose of the investigation and the preparation and publication of the Report.

I attended hearings with the psychoanalyst over three days and waited for the Report to be delivered. Eventually I asked SNZ to send my copy of the Report. The CEO of SNZ refused. I appealed the decision to the Privacy Commissioner and that is where the matter currently lies. Whatever the Privacy Commissioner decides I will of course accept. However I thought there may be merit in putting my case for seeing the Report on public record. Here is that case.

I believe I am entitled to see the Report. I also believe SNZ are not entitled to withhold the Report. That view is based on two conditions contained in the Privacy Act 1993. These conditions are copied in the table below.

As you can see SNZ are required to keep personal information confidential unless SNZ “believes, on reasonable grounds” specific conditions allow its release. Without question two of the conditions apply in my case.

First, Principle 11 (c). This condition says SNZ can release the information if “the disclosure is to the individual concerned”. I don’t think there is any doubt that applies in this case. Why else did I sit in the psychoanalyst’s office for three days answering questions about my coaching? I can’t imagine what else the Report could be about if I was not the individual concerned. Perhaps the Report calls into question the motives of those who brought the complaint. However even if it does, I would argue, I am entitled to read that because their false accusations still directly involve me. I am still the “individual concerned”. I find it difficult to accept that individuals found guilty of lying should be protected. Don’t SNZ members have as much right to know about those who tell lies as they do about me if I had been found guilty?

So I think we can accept that, based on 11(c), SNZ can and should release the Report. I live in hope that the Privacy Commissioner will see it the same way.

And second Principle 11 (a). This clause says that information held by an agency can be released when “disclosure of the information is one of the purposes in connection with which the information was obtained or is directly related to the purposes in connection with which the information was obtained.”

To determine whether the release of the Report meets this condition we have to examine the purposes behind the investigation and the preparation of the Report. I think it is clear that the purpose was twofold. First to establish whether I was guilty or innocent of the charges being made and second to inform SNZ, outside parties and me of my innocence or guilt. At the time of setting up the investigation the CEO of SNZ was very clear. He said the purpose of the investigation and the preparation of the Report was to “clear the air”; to finally settle, in the minds of SNZ and interested outsiders and in my mind, whether the accusations had merit or not. The CEO of SNZ was resolute; the principle purpose of the preparation of the Report was so that its contents could be “disclosed” to me and others interested in the case.

Disclosure was a purpose “in connection with which the information was obtained.” In other words I believe I am entitled to read the Report because the circumstances are covered by clause 11(a) of the Act. In fact without disclosure the purpose of the investigation and preparing the Report is defeated. If the purpose was to find me guilty or clear my name, how is that purpose served by keeping the Report secret? If only SNZ know the contents how does that affect me? In all probability the only product of secrecy is to leave the impression that I am guilty as charged. Throw enough mud and some of it will stick. Perhaps that’s what SNZ want. Perhaps they want to hide the Report because it clears my name. I don’t know and I should.

Without question, the purpose of preparing the Report is being defeated by keeping it secret. The previous CEO of SNZ said exactly that when he asked me to participate in the investigation. If I had known that the findings of the investigation were going to be kept secret I would have thought twice about my participation. It is a warning to others. If SNZ assure you of something get it signed and in writing. They tell lies.

Why have an investigation if no one apart from SNZ is going to know the result? The whole point is to provide the clarity of disclosure not to create even more confusion and intrigue as is now the case.

Anyway that’s why I petitioned SNZ to see the Report and have appealed their decision to the Privacy Commissioner. We will see what happens.