26 April 2019

Hon Sir Terence Arnold QC
Rt Hon Sir Geoffrey Palmer QC
He Uiuinga i a Inquiry into Operation Burnham
PO Box 12008
Wellington 6011

Dear Sir Terence and Sir Geoffrey
Review of classified/withheld material: Operation Burnham documents
1.

In accordance with our appointment and instruction under the Inquiry Procedural
protocol for review of classified information / claims to withhold information from
disclosure, we are able to report that we have reached the point at which a second
tranche of documents can be considered for release.

2.

This tranche comprises various New Zealand Defence Force planning and reporting
documents in various formats.

3.

In accordance with paragraphs [5](a) and [5](b) of the Protocol:
3.1. We have identified and assessed the claims to non-disclosure made in respect of
those documents; and
3.2. We have consulted with relevant Crown agencies – the Department of Prime
Minister and Cabinet, the Government Communications Security Bureau, the
Ministry of Foreign Affairs and Trade, the New Zealand Defence Force and the
New Zealand Security Intelligence Service and also Crown Law – over those
claims.

4.

We have required the Crown agencies to indicate the specific and cogent grounds on
which they seek to withhold passages of these documents and have tested those claims
in accordance with paragraph [8] of the Protocol. As a result:
4.1. The Crown agencies have withdrawn some claims to withhold and modified
others;

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Wellington 6011
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 4.2. We accept that the Crown has established cogent reason to withhold the
remaining passages redacted from the copies as now marked and that that reason
is not outweighed by public interest in disclosure; and
4.3. We have reached agreement on the terms of gists of the withheld passages, so far
as the material content can be described without giving rise to prejudice.
5.

The detail of the grounds to withhold the particular passages is set out in the
accompanying schedules. Because those schedules discuss the withheld content, that
detail is required to be classified according to the classification of that content.
Nonetheless, it is possible here to describe the grounds for withholding that we have
now accepted.

6.

Most substantially:
6.1. Several of the documents give identifying information for individuals believed to
have been killed or wounded in the course of the Operation. As noted in the
accompanying gist to those documents, some of that identifying information may
correspond to identifying information now in the public domain. What remains
potentially prejudicial to interests protected under s 70 of the Evidence Act 2006,
however, is that:
6.1.1. It is not possible to exclude the risk to wounded individuals and/or any
individual named in error; and
6.1.2. The means by which the New Zealand Defence Force obtained that
identifying information at the relevant times in 2010 – for example,
information provided through intelligence-gathering techniques – would
still be at risk of prejudicial disclosure.
6.2. Second, we have established that several passages and some imagery comprise
information provided by other governments and/or by NATO that cannot be
publicly disclosed without consent. In some respects, we were able to establish
that those governments/NATO had already disclosed such information, such that
no issue arose. For the remainder, the Inquiry may wish to consider seeking
consent to disclosure if those passages are considered material.

7.

Further, a number of short details have been redacted and where possible gisted. These
comprise:

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 7.1. Names of individual personnel in the New Zealand and other armed forces, which
would prejudice individuals’ privacy and in some instances safety if disclosed;
7.2. Unit names and other designations used by other countries’ personnel, which
would prejudice New Zealand’s international relations with those countries if
disclosed;
7.3. References to unrelated operations, which are irrelevant here; and
7.4. Some specific details of particular equipment used by other armed forces, such as
the types of support aircraft used, which would if disclosed prejudice relations
with those countries. Aircraft used for attack purposes have been identified.
8.

As a result, the Inquiry may, as with the first tranche of documents, proceed to permit
publication of these further documents as presently redacted, subject to the possibility
of a ruling at some point in the future, or may choose to proceed towards a ruling at this
point.

9.

Last, we can also report that:
9.1. We are currently seeking to confirm agreement on release of substantial material
concerning Rules of Engagement so as to make that material available for the
Module 2 hearing next month;
9.2. We are awaiting final agreement on release of legal opinions concerning detention
safeguards;
9.3. We are working to reach agreement on further detention-related material in time
for the Module 2 hearing; and
9.4. We are working through two further tranches of documents:
and will advise further as soon as we are able on each of these.

Yours sincerely

Ben Keith / David Johnstone
Special advisors

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