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E-mails on December 2 payouts withheld due to encryption

Airport protest: police and protesters clash outside the House of Assembly on December 2, 2016 (File photograph by Akil Simmons)

E-mails sent by a senior civil servant about a taxpayer-funded payout of almost a quarter of a million dollars to protesters who shut down Parliament were withheld from the public because they were encrypted.

The messages should have been reviewed and considered for disclosure after The Royal Gazette asked under public access to information legislation for all communications about the legal settlement involving the December 2, 2016 demonstrators, who were pepper sprayed by police.

But the Ministry of National Security has now revealed that when it processed the Pati request it was unable to open more than 5,000 encrypted e-mails of a former permanent secretary in the absence of an encryption key – so they remained under wraps.

Chris Farrow, who is now the Permanent Secretary at the ministry, told the Royal Gazette: “The only way to access these records would be for one of the two parties to the e-mail, opening and printing off each record.

“The [ministry’s Pati] officer did not make inquiries in this regards to the parties and I find she should have done so.”

The Pati Act, which came into force in 2015, gives the public the right to gain access to information held by public authorities “to the greatest extent possible” subject to certain exceptions.

Its stated aims include increasing transparency and eliminating unnecessary secrecy within government, as well as increasing the accountability of public authorities and informing the public how decisions are made.

Mr Farrow, in his letter sent earlier this month, revealed that the former permanent secretary – one of the highest ranking civil servants in government – used software to secure the content of e-mail messages.

“There were 5,129 encrypted e-mails of a former permanent secretary that the [ministry’s Pati] officer could not open and access as neither she nor the Department of Information and Digital Technologies have an encryption key that would allow the records to be opened,” he wrote.

“As such, the officer could not determine if they were relevant records that could be released in whole or part or were exempt records.”

The letter did not explain why encryption was used, whether this was normal practice for permanent secretaries or whether there would be any further attempt to access the e-mails.

But it is understood to mark the first time the Gazette, which submits regular Pati requests to public authorities, has been told records were withheld because communications were encrypted and could not be decrypted.

Opposition leader Cole Simons said yesterday that it was his understanding that some permanent secretaries used encrypted e-mails as a matter of course.

He said it was vital that there be “clearly defined regulations or protocols with regards to the use of encrypted information to ensure that if it is used regularly, it doesn’t compromise transparency”.

Mr Simons said he could understand the need for encryption where classified information or issues of national security were under discussion.

In relation to the e-mails about the financial settlement for the December 2, 2016 incident, he said: “The question could be ‘why are they encrypted?’ given that the funds were drawn from the public purse.

“What was in the e-mails that warranted the encryption, given that the payment was made from the public purse?”

Protesters who were pepper sprayed by police during the protest against a new airport deal launched a lawsuit in February 2018 against the Police Complaints Authority.

The civil matter was settled a year later, when the Ministry of National Security paid out a $225,000 confidential settlement to 28 demonstrators.

The payouts totalled $161,400, with the additional $63,600 understood to be legal fees.

As the Gazettereported on the fifth anniversary of the protest last December, David Burt, the Premier, gave two Cabinet ministers a tight deadline to bring about a “definitive resolution” to the lawsuit.

Mr Burt, when Opposition leader, was one of the organisers of the protest, which blockaded Parliament and stopped MPs debating airport legislation.

The Royal Gazette submitted its Pati request in October 2021 and the ministry released 20 pages of records the following month.

The Royal Gazette asked the Ministry of National Security for:

•The statement of the Minister of National Security which was due to be delivered in the House of Assembly on February 15, 2019 on payments to the December 2, 2016 protesters.

• Any communications concerning payments to the same protesters.

•A list of the individual payouts (amounts and recipients) to those protesters.

•Records showing where the payouts came from (which department/budget/line item).

In February this year, it released hundreds more pages, including records retrieved from the government e-mail accounts of former national security minister Wayne Caines and his executive aide, as well as former permanent secretaries Marc Telemaque and Wayne Smith.

The Gazette asked Mr Farrow to review the response to ensure all records able to be released under the Pati Act had been disclosed, with the public interest in mind.

He issued his internal review decision on June 7 and the newspaper has asked the Information Commissioner’s Office to review it.

Major Telemaque was national security permanent secretary on December 2, 2016. He became Cabinet Secretary in February 2018.

The November 2021 Pati disclosure noted that the Ministry of National Security comptroller “received approval to pay [the settlement] from then permanent secretary Collin Anderson” on January 28, 2019. The money was paid out on February 12, 2019.

There was no response to a request for comment made yesterday to Government.

* To review the national security ministry’s Pati decisions and the disclosed records, click on the PDFs under Related Media.

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Published June 22, 2022 at 8:00 am (Updated June 22, 2022 at 9:11 am)

E-mails on December 2 payouts withheld due to encryption

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