.

.

Continued from: Questions over Serco’s “independent” monitors and it’s Contract with the Crown

As I wrote over a year ago,  on 4 August 2015;

Questions have arisen regarding the  supposed “safe-guards” Monitors at Mt Eden Prison, and at least one aspect of the Serco-Corrections Dept Contract.

According to section 21.2 of the contract between Corrections and Serco, between two to three Monitors were tasked with;

(a) compliance with this agreement;

(b) the accuracy of the Contractor’s invoices or reports relating to the Services;

(c) processes and procedures of the Contractor or any subcontractor relevant to the provision of the Services;

(d) anything else relating to the Services.

[…]

The prevalence of violence (including alleged  “dropping”); “fightclubs”;  injuries; at least one death; drug use; home-brew production*; contraband such as cell-phones; and now three prisoners arrested for involvement in gang-related drug activities – does not seem to have impacted on Mt Eden’s high ranking on Corrections’ Prison Performance Table – the most recent being for twelve months ending March this year;

.

(Hat-tip: Martyn Bradbury, for above chart)

.

Since April 2014, Mt Eden has rated “Exceptional” in previous performance grades. It’s rehabilitation rates at 96.75% – which in itself is odd, as Mt Eden is also a Remand Prison, and 676 out of 952 prisoners (as at 31 December 2014) are on remand; awaiting trial;  and have not been convicted of any crime.

[…]

Not only has Serco apparently circumvented the spirit, as well as the intent, on their contract with Corrections, but it has apparently connived to suppress information, as Kim Vinnell reported for TV3 on 24 July;

There are fresh revelations private prison operator Serco went out of its way to make sure its squeaky clean record stayed that way.

In Mt Eden prison where inmates are king, are guards who say they’re understaffed and afraid.

“It’s about time we all spoke out and say what it’s actually like,” says one guard, who spoke to 3 News on the condition of anonymity.

He says when prisoners or guards break the rules, management would rather official reports tell a different story.

“You’re told to state the facts, but to leave all other things out of it.

“They go missing off the system several times, or they get edited and you’re not told that they’re edited.”

The Government says it didn’t know what was going on, despite the fact three prison monitors – who are Corrections employees – have been there since Serco’s first day.

Under the Corrections Act, prison monitors must report to the chief executive at least every four months. The sole purpose of their job is to report on prison management and any concerns they may have about the prison’s running.

The government claims “it didn’t know what was going on”.

In which case, not only was the Correction Minister’s office kept in the dark – but also the entire Corrections Department. Is this feasible?

It is inconceivable that National Ministers did not know the depth of problems afflicting Mt Eden and Serco.

In which case, this government was actively complicit in a cover-up, to protect it’s credibility with voters – and to  safeguard it’s privatisation agenda.

As I reported in the Addendum to the above story, on 28 July last year, I lodged an Official Information Act request with the then Minister for Corrections,  Peseta Sam Lotu-Iiga;

3. Who pays their salaries; Serco or the Corrections Department?

I predicted “that Corrections Dept will use a provision within the Official Information Act to request an extension to the 20 Working Day time-limit“.

I was wrong. It did not take 20 working days to respond.

It took over two months.

The Corrections Dept did not respond until 6 October last year. Even then, the information provided did not answer my questions and was totally unsatisfactory.

In response to my questions, “Who employs the Monitors? Is it Serco or the Corrections Department?  Who do they report to; Serco or the Corrections Department?  Who pays their salaries; Serco or the Corrections Department? Are the Monitors still employed at Mt Eden? If not, why not?”

– Corrections confirmed  that “Prison monitors are employed by the Department of Corrections and are paid by the Department“.

The response went on to state;

“Prison monitors review the performance of a contract managed prison on behalf of the Chief Executive. Prison Monitors report to the Chief Custodial Officer. They continue to be employed at MECF  [Mt Eden Corrections Facility].“

In which case, Lisa Owen’s assertion on TV3’s The Nation on 2 May, last year, that;

“…The person who employs the monitor— the person who employs the monitor is the company, Serco. They employ the monitor, and pay their wages.”

– was misleading and unhelpful.

On this issue, the ‘buck’ stopped firmly with the Corrections Dept and at CEO Ray Smith’s desk.

Then-Corrections Minister, Sam Lotu-Iiga, displayed appalling ignorance in not knowing this salient fact.

The next – and perhaps most important – questions put to Corrections were;

” Are the Monitors responsible for providing information to Corrections, which forms the Prison Performance Table? If not, who provides that information?

Corrections replied;

“The Department releases a Prison Performance Table (PPT)  [see above – FM]  that monitors and evaluates each prison’s performance. Prison monitors are not responsible for providing information to the PPT. The information for the PPT is provided by Serco New Zealand Ltd (Serco), and is verified by the Department.  [my emphasis – FM]

That question was followed up with this;

“Have the monitors made any Incident Reports to Corrections, as required Prison under the Management Contract for Mt Eden Corrections Facility (para 22.2). If so, what Incidents were reported and when?”

At this point, the response from Corrections became  little more than opaque obfuscation;

“Under the Department’s contract with Serco for the daily management of MECF, section 22.2 provides that if an incident occurs, Serco must report the incident to Corrections as set out in Schedule Five. A copy of the Department’s  contract is available on it’s website: http://www.corrections.govt.nz/resources/prison_management_contract_for_mt_eden_prison.html.”

Note that response: “if an incident occurs, Serco must report the incident to Corrections“.

But that was not the question put to the Corrections Dept. The question was “have the monitors [my emphasis – FM] made any Incident Reports to Corrections, as required Prison under the Management Contract for Mt Eden Corrections Facility“.

Clearly, the responder to my OIA – Deputy Chief Executive Jo Field – was unwilling to address the question as to what Incident Reports had been made by Prison Monitors employed by Corrections to keep an eye on Serco’s management of Mt Eden.

On October 16, I wrote back to Jo Field pointing out the evasive nature of the response I had been given;

Furthermore, under the OIA, I am requesting  Incident Reports, or any other documents, from Prison Monitors at Mt Eden,within six months leading up to 24 July 2015,  to Corrections Dept,  the Corrections  Minister, or any other government agency.

Two and a half weeks later, on 3 November 2015, I received a response. The salient point made by Deputy Chief Executive, Vincent Arbuckle;

“Thank you for your email dated 16 October 2015, requesting  information about incident reports prepared by Prison Monitors. Your request has been considered under the Official Information Act 1982 (OIA).

[…]

Prison monitors do not prepare Incident Reports; this is the responsibility of the Contractor (Serco). Prison Monitors prepare Monthly Contract Reports, which update senior Departmental staff on issues and events that occur each month at MECF.  These reports are prepared in confidence. Therefore, your request for incident reports and documents from Prison Monitors is declined under section 9(2)(ba)(ii) of the OIA, to protect information which is subject to an obligation of confidence or which any person has been or could be compelled to provide under the authority of any enactment, where the making available of the information would be likely otherwise to damage the public interest.”

(For full email-trail, click here.)

It was clearly evident that whatever written documents had been issued by the Mt Eden Prison Monitors, the Department of  Corrections was not about to make them public.

It was questionable that any such documents “would be likely otherwise to damage the public interest“.  In fact, the only interests that would likely be harmed would be Serco and the Corrections Department itself.

This was to be borne out by the Chief Inspector of Corrections, Andy Fitzharris, who was tasked with investigating allegations of fight-clubs at Mt Eden, and smuggling of contraband (cellphones, etc) into the facility. His report – which was initially held back as Serco sought a judicial review to contest it’s findings – was only recently released.

High Court Judge Karen Clark  said, “To my mind, the report is measured and temperate and Serco’s description of it is wholly unwarranted. The investigation was fair and the report is without error.”

The Chief Inspector’s report was damning of Serco and critical of the Corrections Department.

The role of Prison Monitors is /was critical to ensuring that Serco met it’s obligation under contract with the Crown and Corrections NZ. According to the Corrections Act 2004, the Monitors would be tasked with reporting on;

• i) the management of that prison; and

• (ii) whether or not the contractor responsible for the management of that prison is complying with that contractor’s prison management contract and with the provisions of this Act, and any regulations made under this Act, and any instructions or guidelines issued by the chief executive under section 196 that are applicable to the prison.

The Prison Inspector’s Report was even more explicit in the role of Prison Monitors;

14. “The principal means of oversight is via Monitors, who are appointed under the Corrections Act 2004 to assess and review the management of MECF. Serco is required to provide incident reports and performance reports to Monitors. The on-site monitoring team is managed by Corrections’ Relationship Manager Private Prisons, who reports to Corrections’ Chief Custodial Officer.

15. “…Carrying out daily observation walks through MECF, and observing operational practice.

…Conducting a daily review of incidents and prisoner complaints.” – p9

“If an issue raised by Monitors or auditors is not able to be resolved through informal discussions and consultation with Serco management, the matter can be referred to Commercial Contracts Team. This team conducts service audits to monitor contractual compliance, liaises closely with the Monitors, and can recommend the issuance of Performance Notices for non-trivial breaches of the Contract. Corrections has a range of powers available to it under the Contract, including issuing directions to Serco to remove personnel who are not considered to be fit and proper, or adequately trained, including the Prison Director. The primary means of managing contractual non-compliance is through issue of a Performance Notice. A Performance Notice requires Serco to investigate and resolve the root cause of any breach, and can lead to a Final Warning Notice.  The Commercial Contracts Team is also responsible for calculation of the Performance Related Fee.” – p10

320. “A contractor must ensure that any monitor has free and unfettered access at all times to:

a) every part of the contract prison managed by that contractor;
b) all prisoners in that prison;
c) all persons who work in that prison, but only when they are actually in the prison; and
d) all records held by the contractor that relate to;
I. that prison;
II. any prisoner or former prisoner; or
III. any staff member or former staff member of that prison.” – p79

321/o. “If considered necessary, immediately reporting any matters of concern to the Serco management team. If the monitors consider that the issues are not being adequately dealt with, they may issue a ‘Monitor’s Request’. If the request is not dealt to in a timely manner the monitors may issue a direction instructing the contractor to resolve the matter, or provide assurance of a resolution. The direction is used in cases whereby the Monitors seek assurance that the safety and security site has not been compromised.” – p80

However, that role was subverted as Serco piled on the pressure and Monitors’ roles blurred between observing and reporting, and becoming more task-oriented;

“The Monitors’ relationship with Serco was often very difficult. They would sometimes experience significant ‘pushback’ from Serco when raising issues requiring remedial action such as meal distribution, homebrew, graffiti in cells, and disorderly evening lockup. Following a lack of timely action, the Monitors appear in many cases to have accepted Serco’s position as to the adequacy of its own response to identified issues. The extensive ‘pushback’ and challenge received from MECF management was successful in shifting Monitors’ focus away from core issues, and minimising the Monitors’ criticisms of the significance of the issues identified.” – p5

“* confusion in that the Monitors believed they did not have any statutory power if issues did not directly relate to a breach of Contract, legislation, or the Chief Executive instructions…

* a task-orientated focus on scheduled reviews, which may have distracted Monitors from undertaking observations and recording issues as they arose; and

* lack of specific training or guidelines for the role of a Monitor.” – p6

That “pushback” from Serco was manifested when they attempted to unsuccessfully exploit legal action to suppress or dilute down the Inspector’s Report;

In the High Court in Wellington yesterday, Justice Clark rejected Serco’s application for review and ordered the company to pay costs, saying its description of the report as “a collection of unsubstantiated claims and allegations drawn together in such as way as to willfully portray Serco in the worst possible light and to minimise any criticism of the department” was “unfounded and inaccurate.”

Contrary to Corrections stating in their 3 November 2015 OIA response that “Prison monitors do not prepare Incident Reports; this is the responsibility of the Contractor (Serco). Prison Monitors prepare Monthly Contract Reports, which update senior Departmental staff on issues and events that occur each month at MECF. 

– it is clear that Monitors did indeed record incidences relating to various staffing, violence, and health-related problems (referred to as “issues” in business/bureaucratic jargon);

131/b. On 7 February 2014, Monitors noted that “incidents appear to be taking place in the units when the staff are out of the unit/s for short periods of time”, and that “a visit to Delta unit on Friday 07 Feb did identify nil staff in the wings of both Delta 1 and Delta 2 [i.e. both Delta Unit pods].” – p41

131/c. “On 28 February 2014, it was reported that the Monitors’ observations over a two week period showed that unit pods were being left unstaffed while prison officers conducted prisoner escorts and attended to other duties.” – p41

131/e. “On 9 June 2014, the Monitors observed that staff shortages meant some prisoners did not receive breakfasts.” -p41

The Inspector pointed out  the experience of two of the three Prison Monitors;

319. “It is noted that two of the three monitors have been in the role for approximately four years.” – p79

But experience was gained at the expense of lack of training;

350. “The Investigation found that there was no specific training given to Monitors in respect of their role, authority and responsibilities at MECF. In my view, Monitors ought to be given training specific to the requirements of their role, which includes reporting on the management of the prison as well as contractual compliance. There is a need for a training package to be developed to ensure Monitors are suitably equipped to undertake the tasks required of them.” p85

There also appeared to be a “silo-isation” of Corrections management, resulting in paralysis where Serco’s shortcomings were obvious but not acted on;

328. “The Chief Custodial Officer (CCO) provides informed advice on emerging custodial practices and developments worldwide, and maintains an overview of research trends and future thinking…

329. The CCO is in daily contact with the Relationship Manager and matters arising from MECF are discussed. The CCO advised that he does not hold any authority over provisions of the Contract with Serco nor does he hold a separate statutory monitoring power…

330. He believed that there was no formal process for him to elevate matters raised by the Monitors to the Chief Executive. He understood that the appropriate formal processes for elevating these matters by the Monitors was through the Northern Regional Commissioner or Director Commercial. Accordingly, the Monitors report contractual breaches to the Commercial Contracts team. Custodial and operational issues were elevated to the Northern Regional Commissioner who is responsible for operations at all prisons in the Northern region, including MECF.” p81

Where instances of short-coming were presented to Serco, the private contractor actively fobbed off the Monitors;

332/a. “…The Monitors sent a request to MECF for a FFR [Fact Finding Reviews – FM] on 24 March 2015 in regards to the allegation of “prisoners arranging fights” they had raised on the Issues Log. A FFR conducted by Serco management, was received on 30 March 2015 and was deemed not up to standard by the Monitors. The issue was closed off on 20 April 2015 after the Monitors received an updated FFR. However the second FFR does not address the issues raised by the Relationship Manager in respect to the first FFR<b> and appeared to be the same report</b> [My emphasis – FM] . No further action was taken by the Monitors or Serco.” p.82

In case the above point was lost on anyone in government or Correction, the Prison Inspector spelled it out;

333. “I believe that in the instances identified above, the Monitors were ineffective in following up on remedial actions to the issues they had raised. Issues were prematurely removed from the Issues Log without satisfactory remedial response or action from Serco.” p.82

The effectiveness of Prison Monitors then became diluted and confused;

340. “The Monitors reported that they considered that they were required to establish a balance between reporting potential non-compliance by Serco, and providing advice on operational matters to Serco. There was therefore some confusion among Monitors as to the appropriate steps required to address identified issues.

342. I believe that this raises potential risk of a conflict of interest, in that Monitors who may have provided advice to Serco on policy matters may be compromised if they are required to monitor and direct action in regard to situations where they have provided “expert advice”.” p84

Serco was only too happy to assist with the neutering of Prison Monitors as they increased pressure on the three staffers;

344. “The Monitors advise that their relationship with MECF management was often very difficult. They would sometimes experience significant ‘pushback’ from the MECF Prison Director when raising issues requiring remedial action. There is no evidence that their objectivity and independence has been compromised.

345. However, I believe the Monitors have been overwhelmed, worn down and consumed by MECF management continually challenging their requests for resolution to matters.” p84

The Prison Inspector further pointed out that;

344. “The Monitors advise that their relationship with MECF management was often very difficult. They would sometimes experience significant ‘pushback’ from the MECF Prison Director when raising issues requiring remedial action. There is no evidence that their objectivity and independence has been compromised.
345. However, I believe the Monitors have been overwhelmed, worn down and consumed by MECF management continually challenging their requests for resolution to matters.
346. This is evident from certain entries in the Issues Log, which show Monitors escalating issues through the Relationship Manager without appropriate resolution. Following a lack of timely action, the Monitors have accepted Serco’s decision as to the adequacy of its own response to identified issues. The extensive ‘pushback’ and challenge received from MECF management would shift the focus, or minimise the significance of the issue concerned.” – p84

Serco’s response was, by now, wholly predictable and the Prison Inspector was candid in his criticism;

348. “Serco does not accept the characterisation of its actions as ‘pushback’. It says that its relationship with Monitors was “a robust one, as should be expected in a complex environment such as MECF”. Whatever language is used, I consider that the Monitors’ effectiveness was affected by Serco’s persistent challenges to the issues they raised.” – p85

However, this was not simply the fault of stressed, overwhelmed, worn down Prison Monitors.

Nor even Serco which exploited what it quickly perceived as weaknesses in the system, and an ideologically-driven government that was sensitive to any suggestion that it’s privatised prison model was failing on all levels.

Corrections NZ should also be held to account.

It is my belief, based on the obfuscatory nature of OIA responses from Corrections NZ, that it was unwilling to answer specific questions regarding Prison Monitors.

The responses from Corrections NZ were not just shrouded in ‘bureaucratese’ – they were a deliberate ploy not to provide answers to specific questions.

But more damning is a discovery by the Inspector of a secret report in July 2014 that was ultimately suppressed;

36. In May 2014, Corrections received information from a Probation Officer that she had been informed by offenders that there was organised fighting occurring at MECF.

37. On the basis of the information received, the PSU made enquiries, which included interviewing the probation offenders who alleged there was a significant amount of fighting taking place, particularly in two units. Offenders had also made allegations that staff were involved in assaults, gambled on fights, and placed prisoners in dangerous situations. However the PSU investigation concluded that there was no substantiated evidence supporting these claims.

38. Following the PSU enquiry, the National Commissioner of Corrections directed an operational review of this issue. Two principal custodial advisors were appointed as special monitors (the Special Monitors), and undertook an investigation in June 2014. The Terms of Reference for the Special Monitor’s report were to investigate the allegations of organised fighting uncovered by PSU’s enquiries. The methodology included: reviewing all available CCTV footage and interviewing any prisoners, staff or incident notification reports that related to fights and assaults.

39. A final draft of the Special Monitors’ report was completed on 9 July 2014 and a copy delivered to the office of the National Commissioner.

40. The Special Monitors’ draft report found that:

a) Prisoner interviews indicate that organised fighting was occurring.
b) All prisoners who confirmed the existence of organised fighting said it was being organised by criminal gangs.
c) There was no evidence of staff involvement other than reports by prisoners, but staff at MECF must at least be aware of the existence of organised fighting.
d) Staff who confirmed that organised fighting had occurred around 12 months ago said that incidents had occurred during periods of reduced staffing.

41. The report was never finalised, but was provided in redacted draft to the MECF Prison Director in May 2015. <b><i>The Prison Director has stated that he was told not to reveal the contents of the report to anyone. </i> </b> [My emphasis. – FM]

42. The reasons why this report was never finalised were investigated by a separate body to this investigation. I am of the view that this report should have been finalised and provided to Serco. The failure to finalise the report is not attributed to Serco. Two independent members of the Corrections’ Audit and Risk Committee had been tasked with reviewing the management of this report under terms of reference approved by the Chief Executive. I have been provided a copy of their review which supports my belief that the original report should have been finalised and provided to Serco, and escalated to Corrections senior management including the CE. The Investigation will not include any further consideration of this matter. p13/14

Corrections NZ knew more than it has let on. That is why the 2014 Report was ‘buried’.

It was only when the video-evidence of “fightclub” footage on Youtube  emerged that Corrections NZ could no longer keep turning a blind eye to Serco’s mis-management at Mt Eden. The dirty little secret was out in the open for all to see.

It is my considered belief that Corrections NZ – up to the very  senior levels of management – knew what was happening at Mt Eden.

The reason that Corrections chose a deliberate policy of ignoring the growing crisis at Mt Eden was simple: do not embarrass the government. This policy is central to National’s credibility to govern;

A former high-ranking Customs lawyer says he resigned from his job after allegedly being told to bury information that could embarrass the Government.

Curtis Gregorash said he was told by senior Customs executives to refuse Official Information Act and Privacy Act requests, which he believed was at the direction of former Customs Minister Maurice Williamson.

It comes at a time the Prime Minister’s office is under inquiry over the release of intelligence material through the OIA and accusations that former Justice Minister Judith Collins was manipulating OIA responses for political purposes.

There is now growing evidence that the new prison at Wiri is also experiencing problems under it’s Serco administration;

.

.

This time, however, we can only hope that the Prison Inspector and Prison Monitors will force Corrections NZ not to look the other way.

.

.

.

References

Corrections Dept: Prison Management Contract for Mt Eden Corrections Facility

NZ Herald: Head Hunters raids – Police investigating former Mt Eden prison guard

Corrections Dept: Prison Performance Table

TV3: Mt Eden prison guards ‘understaffed, afraid’

Scoop  media:  The Nation – Corrections Minister Sam Lotu-Iiga

Corrections Dept: Inspector of Corrections

Corrections Dept: Chief Inspector’s Reports into Circumstances surrounding organised prisoner on prisoner fighting (Fight Club) and access to cell phone contraband (background & terms of reference)

Radio NZ: Serco challenges Mt Eden fight report

NZ Herald: Serco investigation ‘fair’ – High Court

NBR: Serco’s criticism of Mt Eden fight club report ‘wholly unwarranted’, judge says

Corrections Dept: Chief Inspector’s Reports into Circumstances surrounding organised prisoner on prisoner fighting (Fight Club) and access to cell phone contraband (redacted report)

Corrections Dept: Prison Management Contract for Mt Eden Corrections Facility

Legislation.govt.nz: Corrections Act 2004 – 199E – Monitors

NZ Herald: Ex-govt lawyer’s ‘bury bad news’ claim

TV3 News: Serco’s prison fight clubs might have spread to Wiri – Labour

Additional

Radio NZ: New details about Mt Eden Prison fight clubs released

Radio NZ: Serco sacked dozens of staff while running prisons

Radio NZ: Serco lost $10m after Mt Eden fiasco

Radio NZ: PM admits Govt uses delaying tactics

Other blogposts

No Right Turn: A failure of privatisation

The Daily Blog: So the SERCO fight clubs were weekly?

The Daily Blog: Hold on, wait, there was a secret SERCO report that was smothered? Things you’re missing because of rugby toilet sex

The Standard: The Chief Prison Inspector’s report on Serco and MECF

Previous related blogposts

So what is the rationale for private prisons?

The closure of three prisons and loss of 262 jobs – five issues for the National govt

“The Nation” reveals gobsmacking incompetence by Ministers English and Lotu-Iiga

Questions over Serco’s “independent” monitors and it’s Contract with the Crown

.

.

.

.

.

= fs =