Operation Burnham: New NZ Defence Force inquiry after SAS raid info cover-up alleged

NZSAS personnel leaving a Chinook helicopter while on operations in Afghanistan. Photo / NZDF

Our military's integrity is under fresh scrutiny as a new inquiry is launched by the Chief Ombudsman into whether the NZ Defence Force deliberately hid key documents when handling a sensitive Official Information Act request.

Peter Boshier has offered an alternative to being deliberately misled, saying missing information could be the result of "poor record-keeping or other administrative practices".

In a strongly worded letter seen by the New Zealand Herald, Boshier has said: "The gravity of this situation cannot be overstated.

"More broadly, these allegations have the potential to harm the ongoing trust and confidence in the integrity and accountability of the NZDF, and the effective operation of the OIA more generally by those who are subject to it."

Journalist Nicky Hager sparked the inquiry after pointing to apparent inconsistencies between what the Office of the Ombudsman was told when it reviewed complaints NZDF had not released information it was obliged to through the OIA.

The OIA requests related to the Operation Burnham operation and were made by a number of agencies and requesters, including Hager and the Herald.

The operation was a 2010 special forces raid into an unsafe region of Afghanistan that neighboured New Zealand's Provincial Reconstruction Team after it suffered a run of casualties.

The NZ Special Air Service led the raid, backed by the Afghan Crisis Response Unit and with air support from United States helicopter gunships and aircraft.

The secret mission became public when journalists Nicky Hager and Jon Stephenson wrote Hit & Run, which alleged civilians were killed during the raid, including a child, and that it had been covered up by NZDF.

Journalists Nicky Hager and Jon Stephenson at the 2017 launch of the book Hit & Run. Photo / Mark Mitchell

It led to an inquiry that found five people, including a child, had been killed, although it was unable to conclude if the adults were civilians or legitimate targets. It dismissed a key allegation that war crimes had taken place, finding rules of engagement and international law had been followed.

The inquiry also found there was no deliberate cover-up but a series of bumbling errors that led to ministers being wrongly told no civilians had been killed.

After Hit & Run was published in 2017, the NZDF was placed under huge pressure to disclose details of the raid. It provided information in a controlled briefing then fielded a slew of OIA requests seeking details and original documents.

When it declined much of the information sought, requesters - including the Herald - complained to the Office of the Ombudsman, leading to Boshier testing NZDF's claims of necessary secrecy against the OIA's legal obligation for information to be released unless there is good reason not to.

Boshier's inquiry led to some further information being released but he said he most had been correctly withheld by NZDF so as not to "risk national security or threaten our important international relationships".

Former prime minister John Key visiting NZDF personnel at Bamiyan, which was facing repeated attacks from insurgents in a neighbouring province. Photo / File

Then the inquiry into the raid and related issues saw a huge tranche of previously classified information released after an independent, security-vetted team went through the material to find what could be made public.

In the new documents, Hager said he believed he had identified information that showed Boshier's earlier efforts could not have been fully informed.

One example highlighted by Hager in a letter to Boshier was information released by the Inquiry into Operation Burnham which showed grid co-ordinates and timing of four different air attacks. In Hager's appeal to Boshier, he said the document was a direct contrast to "NZDF's self-serving single-attack narrative" which had been subject to scrutiny by the Office of the Ombudsman.

"Based on this more accurate understanding of the operation, the inquiry concluded that New Zealand personnel had approved the firing into the civilian area that caused most of the civilian casualties," he wrote.

"The information being hidden and misrepresented was at the heart of the Operation Burnham controversy."

Hager said he believed "NZDF did not show source documents ... to the Ombudsman investigating officers".

Lieutenant-general Sir Jeremiah Mateparae, former governor general, was chief of defence at the time of the raid. Photo / File

He told Boshier the Office of the Ombudsman had been guided by NZDF as to what had to remain secret.

"Thanks to the subsequent work of the inquiry, this advice has been shown to be false and misleading."

Boshier's response to Hager came this week; the delay was explained as necessary to work out "how best to approach this issue".

"My investigation into NZDF's conduct will be robust. Any evidence I was deliberately misled will be treated with the utmost seriousness."

If poor record-keeping was at fault for not being given "accurate or complete information", Boshier said he would consider it against recommendations by the inquiry that NZDF improve its performance.

Boshier told the Herald he shared Hager's concern he had not been "given access to a complete set of information by NZDF during the course of my investigation".

"This is a claim I take extremely seriously. I have commenced an own motion investigation into whether I was misled by the actions or omissions of the NZDF during the course of my Operation Burnham official information investigation."

Boshier said the OIA was this year celebrating its 40th anniversary and was "one of the cornerstones of our democracy".

"I simply cannot allow it to be seen to be undermined, either deliberately or inadvertently by an agency that is subject to it."

An NZDF spokesman said the organisation was looking forward to "supporting the Ombudsman in his investigation into any differences in information" available before and after the two-year inquiry.

"A key finding of the inquiry was shortcomings in the NZDF's information management and retrieval systems, and work is underway to address those findings."

The spokesman said no further comment would be made because it was under investigation.

Defence Minister Peeni Henare has also been asked for comment, including whether NZDF has briefed him on Boshier's inquiry.