The NZSIS response to this request did not provide a copy of its apology to Mr Hager in text-searchable format as requested. So that the statement and apology can be found on the web more easily, the text of the statement and apology published on either 30 November or 1 December 2022 are pasted in below:

NZSIS media statement - settlement with Mr Hager regarding 2012 activity

In 2019 the Inspector-General of Intelligence and Security made findings that, in 2012, the New Zealand Security Intelligence Service acted outside of its lawful scope of activity in that it obtained two months of call associated data for the home telephone line of journalist Nicky Hager.

The NZSIS accepted the IGIS findings in full and apologised to Mr Hager, in line with the Inspector-General's recommendation. The Director-General of Security reiterated that apology publicly following the release of the IGIS report.

In recognition of this breach, the NZSIS has agreed to pay compensation to Mr Hager, and a contribution towards his legal fees.

We recognise the important role that journalists play in a free, open and democratic society - the very society the New Zealand intelligence agencies exist to uphold. There is a comprehensive policy framework in place which requires very high levels of approval, justification and oversight if there is a situation where intelligence gathering activity touches on a journalist in any way.

The introduction of the Intelligence and Security Act 2017 has clarified the law we operate under and gives a clear legal mandate to take action to identify, assess and protect against threats to sensitive and classified information. In addition, NZSIS has overhauled and significantly strengthened its policy framework and legal and compliance systems in the decade since this incident occurred.

A summary of our policies around operational collection activity involving sensitive category individuals, which includes journalists, is publicly available in the NZSIS website.

The agreed statement with Mr Hager follows:

Agreed statement as part of settlement with Mr Hager

Following the release of Mr Hager's 2011 book, Other People's Wars, the New Zealand Defence Force sought the assistance of the New Zealand Security Intelligence Service to investigate the possible unlawful disclosure of classified information to Mr Hager. In 2012, NZSIS acquired two months of Mr Hager's call associated data for his home telephone line for the purposes of assisting NZDF with that investigation.

In 2019, Mr Hager made a complaint to the Inspector General of Intelligence and Security. Before the IGIS, the NZSIS justified its use powers against Mr Hager by claiming that it was investigating espionage. However, in her report the Acting IGIS found that the NZSIS had no reasonable grounds for suspecting that any espionage had occurred and that the acquisition of two months of call associated data had therefore been unlawful. The Acting IGIS also said NZSIS failed to show necessary caution, in a free and democratic society, before carrying out investigative activity into a journalist's source.

Mr Hager had a reasonable expectation of privacy in his home telephone, and NZSIS now accepts that it acted unlawfully in obtaining that data. Doing so breached Mr Hager's rights under ss 14 and 21 of the New Zealand Bill of Rights Act 1990, and some of the Information Privacy Principles of the Privacy Act 1993.

Investigative journalists such as Mr Hager play an important role in society, including to provide an additional check on executive functions and powers. The role of Mr Hager is considerably more difficult given hls subject matter of expertise and the difficulties of obtaining information which is protected by various and numerous confidentiality mechanisms. NZSIS recognises that its actions in 2012 could have resulted in a chilling effect on such important work.

Accordingly, NZSIS apologises unreservedly for breaching Mr Hager's rights. Its conduct fell short of its own expectations. In recognition of this breach, NZSIS have agreed to pay compensation to Mr Hager and a contribution towards his legal fees.

1. While the requester requested the public interest factors, these were not provided. Section 9(2)(h) relating to legal professional privilege is subject to the public interest test, so there ought to have been consideration given to the public interest for the withholding of the privileged information.

2. Section 6(a) is not subject to the public intetest test.
https://www.legislation.govt.nz/act/publ...

3. It would of helped if the requester had includedvthe public interest factors as part of their numbered list in their OIA request, so that it was really clear that those reasons needwd to be included in the response letter. Nonetheless NZSIS would of seen this further down the request.

4. It goes without saying NZSIS could of waived the privilege if they owned the privilege (e.g. as a result of the advice coming from in-house counsel). They could have chosen to release excerpts from the information, especially if it was in the public interest.

5. The press release that was removed from the NZSIS website can also be found at the following sites:

https://wellington.scoop.co.nz/?p=149204

https://web.archive.org/web/202212010241...

(Nick Hager's press release is also on Scoop.co.nz)

6. It would be interesting to know whether there was an agreement between Nicky Hager and NZSIS for the press release to remain published on the NZSIS website, and for how long.

7. The NZSIS press release was online for just 15 days before their General Counsel asked for it to be removed on the apparent basis "that the story has passed". Many stories pass but I doubt they are removed from the website so quickly. Without there being any other reason for its removal provided in the response, one is left wondering if the decision was more about reputational management by removing any mention of NZSIS' admission it had acted unlawfully in 2012.

8. NZSIS needs to be mindful that removing a public apology from its website after 15 days may be seen by Nicky Hager and the public as acting in bad faith. If there was no proper reason to remove it, then it should of remained. Newer press releases would of overtaken it over time in any case, thus the apology's prominence on the website would have naturally diminished.

Correction: removed in 14 days (not 15). Published 30 Nov 2022, and OIA response shows intended take down on 14 Dec 2022.

1. The letter incorrectly refers to section 16(2)(c), when it should be section 16(2)(a). https://www.legislation.govt.nz/act/publ...