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.