Government

Spy agency whistleblower regime faces criticism

They have wide-ranging surveillance and intelligence collection powers - but do our spy agencies have the right policies to protect whistleblowers? Sam Sachdeva reports.

New research on whistleblowing procedures for our spy agencies has raised concerns over “inadequately understood, interpreted and communicated processes”, as well as tensions between the agencies and the watchdog overseeing their work.

The research, carried out by Massey University student Caitlin Macdonald and Massey defence and security lecturers Rhys Ball and William Hoverd, included extensive interviews in mid-2018 with NZ Security Intelligence Service (NZSIS) director-general Rebecca Kitteridge, her Government Communications Security Bureau (GCSB) counterpart Andrew Hampton, and the then-Inspector General of Intelligence and Security (IGIS) Cheryl Gwyn.

In their study, the authors said the lack of any public disclosures to date under the Protected Disclosures Act by an intelligence agency employee meant the legislation had not been properly tested, and with the uncertainty “there is every likelihood that an individual who attempts to blow the whistle will only become confused and intimidated by the existing process”.

“Without a significant push for more transparency in the intelligence community, it is possible that there is a strong risk that whistleblowers may turn to the media rather than a [legislative] process...which then in turn could see them harshly and unjustly punished by their government.”

Gwyn told the researchers that there was a risk of the intelligence agencies seeing whistleblowers as an “insider threat” and taking pre-emptive action - something which the agencies disputed.

“There is quite a tendency to conflate the two which can mean people think ‘Oh well, if someone makes a protected disclosure, then they’re also probably likely to leak externally as well so we should do something about that’,” Gwyn said.

The researchers also raised concerns about the agencies’ internal policies, which seemed overly restrictive in outlining when a staff member could go directly to the Inspector-General.

“The language used in both the legislation and the policy means it is difficult to have any certainty of outcomes before navigating the process. This means that employees of NZSIS and GCSB are not as protected as they should be or as senior leaders and legislation claim they are,” the authors said.

Former Inspector-General of Intelligence and Security Cheryl Gwyn told researchers New Zealand's intelligence agencies sometimes ran the risk of conflating whistleblowers with "insider threats". Photo: Sam Sachdeva.

Another potential problem came in the relationship between the agencies and the Inspector-General; in his interview with the researchers, Hampton reportedly said the decision to establish an IGIS reference group which included some prominent intelligence critics could possibly “have negative future impacts on the IGIS’s reputation for objectivity”.

Taken as a whole, the study’s findings “show that potential whistleblowers are exposed to risk due to inadequately understood, interpreted, and communicated processes”, the authors said, with a need to improve the clarity of the protected disclosures process.

“Should New Zealand wish to maintain its image as an exemplar of democracy and freedom in the Western world, the treatment afforded to local whistleblowers needs to be unquestionably just and fair.”

Macdonald, who has previously worked for New Zealand’s intelligence agencies, told Newsroom Gwyn’s suggestion that the agencies might see people making protected disclosures as a threat in other ways was a concern.

“I think probably there is risk to people if they were going to try and blow the whistle...because Edward Snowden and Chelsea Manning have had the term ‘whistleblower’ applied to them as well, so the term ‘whistleblower’ inside the [intelligence community] kind of makes people a bit worried because you might end up as Snowdon.”

Hampton’s remarks about the IGIS reference group “came a little bit out of the blue”, Macdonald said, and seemed to hint at tensions between the agencies and the Inspector-General.

While Kitteridge and Hampton had both expressed their strong belief in the importance of the Inspector-General’s oversight role, the “inherently oppositional relationship” would always be difficult to manage, Macdonald said.

“There is no sound basis to believe that speaking to the reference group two to three times a year, including publishing a transparent account of the discussion on our website, could undermine the role of the IGIS in the eyes of agency staff.”

Madeleine Laracy, the acting Inspector-General, told Newsroom the main problem with the current whistleblowing process was the law as it applied to intelligence agencies, with staff who held concerns about serious wrongdoing required to navigate “layers of tests and difficult judgments” internally before they could go directly to her office.

Laracy said it would be better if the legislation and the agencies allowed anyone with good faith concerns to make a direct disclosure to the Inspector-General’s office.

She shared Gwyn’s concerns about the agencies conflating protected disclosures with insider threats, and said the agencies needed to think about what they could do to encourage a “speak up culture”.

She dismissed Hampton’s comments about the possible effect of the IGIS reference group on the whistleblowing process, saying there was no logical link between the two.

“There is no sound basis to believe that speaking to the reference group two to three times a year, including publishing a transparent account of the discussion on our website, could undermine the role of the IGIS in the eyes of agency staff.”

The group’s composition of former intelligence insiders, critics, and academics ensured that the Inspector-General could “step outside the small bubble of the Wellington intelligence community and speak to a range of other people who also have genuinely held - perhaps even expert - perspectives”, Laracy said.

“Being prepared to respectfully hear critics is a basic ‘health check’ for a democracy.”

“Given the importance of the Inspector-General as an independent disclosure authority, if staff do not feel confident approaching her or her office, that is something that is of concern to me.”

In a written statement, a spokesman for the GCSB and NZSIS said the agencies’ joint policy on protected disclosures provided “detailed advice to staff on the internal and external avenues available to them”, including the appropriate processes to follow and the protections in place for staff.

“We believe both the current policy and the legislation are clear on this issue.”

The researchers acknowledged Kitteridge and Hampton’s “unanimous support” for the principles underpinning the protected disclosures framework, the spokesman said.

Hampton told Newsroom his comments about the IGIS reference group came shortly after its creation in April 2018, when several GCSB staff had raised concerns with him about its role and membership.

“Given the importance of the Inspector-General as an independent disclosure authority, if staff do not feel confident approaching her or her office, that is something that is of concern to me.”

However, Hampton said the matter had not been raised with him recently by staff. The GCSB had offered to brief the group on its role and functions, as well as answering any questions its members had.

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