Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News and Tonight – item reported on the release of the "Sutch Papers" by the New Zealand Security Intelligence Service – allegedly unbalanced and inaccurate
Standard 4 (balance) – item did not discuss a controversial issue of public importance – not upheld
Standard 5 (accuracy) – Sutch Papers released did not confirm that "Sutch had a longstanding association with the KGB" as stated in the item – upheld
This headnote does not form part of the decision.
 An item on One News, broadcast on TV One at 6pm on 6 June 2008 and repeated on Tonight at 10.30pm the same evening, reported on the release of the Sutch Papers by the New Zealand Security Intelligence Service (NZSIS). Viewers were told that Dr William Sutch was the only New Zealander ever to be tried for spying, and that he was accused of passing State secrets to an alleged agent of the Russian secret police, the KGB, during the Cold War. The reporter said that "now the SIS has released a previously top secret file that confirms former civil servant Sutch had a longstanding association with the KGB".
 The item included excerpts of interviews with Graeme Hunt, the author of "Spies and Revolutionaries", John Edwards, the Sutch family lawyer, and the Prime Minister Helen Clark. Mr Hunt commented that the release of the papers "sure enough confirms my view that he was a spy and a traitor". Helen Clark said of the case that she had "not the slightest idea. All I can say is he was found not guilty in a court of law". The reporter then questioned, "So if he wasn’t a spy, what was Bill Sutch doing that night?" Mr Edwards was shown commenting:
Bill Sutch for his entire career worked for the good of New Zealand. That was his primary goal... [The KGB agent] had approached him, and it was Bill Sutch’s impression that he wanted some contact, some assistance to defect...
 Simon Boyce made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the items breached standards of balance and accuracy. With regard to the release of documents concerning the Sutch case, he said that:
TVNZ chose not to report the substance of what was released, and continued the bias shown in previous instances, in this case by repeating simulated scenes from previous so-called documentaries, and by giving particular prominence to the views of Mr Hunt.
 Looking at Standard 5 (accuracy), Mr Boyce noted that both news items claimed that the documents released showed that Sutch had a "long association" with the KGB. However, the complainant said, the SIS webpage and other reports indicated that the SIS had not released the documents from the files that purported to show this "long association". Further, TVNZ failed to mention significant new information, he said, namely the previously unavailable part of the Powles report from 1976. Mr Boyce said that the report "debunks the myth that Hunt and TVNZ have such an investment in", because it indicated that the SIS did not have evidence of links between Soviet embassy officials and Dr Sutch other than his attendance at official functions.
 Mr Boyce argued that by using pre-existing filmed situations and giving prominence to Mr Hunt’s views about sections of the Sutch file that had not actually been released, the items worked to maintain TVNZ’s view of events in 1974 in breach of Standard 4 (balance). He contended that the item created the misleading impression that Mr Hunt was responsible for getting the SIS to release the information, when he had not managed to achieve that while writing his book. All other news reports, Mr Boyce said, made it clear that Dr Sutch’s family had been working with the Ombudsman to get the files released, even though parts of them were censored and entire documents remained classified. Further, Mr Boyce argued that Mr Hunt’s views were not relevant because he had not seen the documents "that confirm his prejudice". The complainant considered that "to give more prominence to his views, and then add the Sutch lawyer’s comment after Hunt as a token gesture, does not create balance at all".
 Mr Boyce nominated Standards 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice in his complaint. They provide:
Standard 4 BalanceIn the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Standard 5 AccuracyNews, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
 TVNZ maintained that Standard 4 had not been breached by the broadcasts of the news items, because reasonable efforts were made to present significant points of view. The broadcaster noted that comments were included from Mr Hunt, Mr Edwards and the Prime Minister in her role as the minister responsible for the NZSIS.
 TVNZ stated that Mr Hunt was interviewed and gave his opinion about the contents of the papers, but disagreed that there was any suggestion in the item that Mr Hunt was responsible for the release of the papers, as argued by the complainant. It also disagreed that Mr Hunt’s views were given greater prominence than those of the other interviewees. Significant points of view were presented in a balanced manner, it said. Further, the broadcaster disagreed that the item was constructed to "maintain TVNZ’s view of the events in 1974". Rather, it "simply reported on the release of further papers in the case and sought comment from appropriate parties". Accordingly, TVNZ declined to uphold the balance complaint.
 Considering Mr Boyce’s argument that the documents released did not in fact indicate that Dr Sutch had a longstanding association with the KGB, TVNZ noted that the SIS had released a document entitled "W.B. Sutch - Target Assessment", dated 30 May 1974. Part I of that document stated:
Since 1932, when SUTCH first visited the USSR, he has been the subject of security interest and assessment both in New Zealand and overseas. This current target assessment has been called for as a result of the observation of a meeting between SUTCH and Dmitriy Alexandrovich RAZGOVOROV (First Secretary, Soviet Embassy, Wellington and known KGB) on 18 April 1974, at approximately 2025 hours, under circumstances which strongly suggested a clandestine relationship.
 The broadcaster stated that Part III of that document outlined Dr Sutch’s contact with known espionage/subversive targets, and Soviet and other IC Officials, as well as the SIS assessment of those contacts. The conclusion of the document stated:
It is considered that SUTCH has worked, and is still working for the Soviets, although it is difficult to explain every known action taken by him over the past 40 or so years, in the light of such an assessment.
 Accompanying this document were two statements, TVNZ said, the first of which was from the Chief Ombudsman who had requested clarification to ensure that what was made public did not give a misleading impression of the totality of the SIS holdings on Dr Sutch. The second statement, issued by the Director of Security, was as follows:
The Office of the Ombudsman has reviewed the NZSIS records concerning William Ball Sutch and material recommended for release is being made public where possible. Some classified liaison service material cannot be disclosed because of its sensitivity. At the request of the Chief Ombudsman, the Service has provided a general description of the sensitive reporting. It is as follows:
The relevant information was provided to the NZSIS in confidence, and the originator must give permission before it can be declassified and made public.
- Early accounts of Dr Sutch’s association with USSR-aligned individuals and organisations, derived by Western intelligence services from local sources; and
- More recent reporting of historical information of Russian origin, documenting a long-standing association between the KGB and a New Zealand civil servant who very precisely (and uniquely) fitted Dr Sutch’s background and profile.
 Given the material included in the Target Assessment document, and the information contained in the statement that accompanied the Sutch papers when they were released, TVNZ concluded that the reporter was accurate in stating that "the SIS has released a previously top secret file that confirms former civil servant Sutch had a longstanding association with the KGB". Accordingly, TVNZ declined to uphold the complaint that the items were inaccurate.
 Dissatisfied with TVNZ’s response, Mr Boyce referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 The complainant argued that TVNZ had not adequately considered the content of the previously secret files before putting together the news item. This explained its reliance on the "biased views" of Mr Hunt and the "simulated footage" in the item, he said. Mr Boyce considered that TVNZ was seeking a different angle to other reports in newspapers and radio on the same day, which had been based on the evidence supporting Dr Sutch.
 Mr Boyce maintained that the statement in the item that "the SIS has released a previously top secret file that confirms former civil servant Sutch had a longstanding association with the KGB" implied that the documents released supported that position. He argued that "any objective observer will see that the released documents don’t provide any convincing evidence for this position, and the weak basis of the evidence supports Sutch’s innocence". The "long association", he said, could only be based on documents that had not been released. Mr Boyce said that this suggested that TVNZ were willing to believe the SIS despite never having seen any documentation as evidence.
 The complainant maintained that, by giving Mr Hunt prominence in the item, TVNZ created the impression that he was involved in the release of the document; "they never actually said how the file came to be released", he wrote. Mr Boyce considered that, in including Mr Hunt’s comments, TVNZ "were not relying on an expert but someone with strong ideological views, and in doing so made their own bias clear".
 TVNZ provided the Authority with information taken from the NZSIS website, entitled "Release of Selected Sutch Papers and Sir Guy Powles’ Top Secret Report", which included the clarifying statement requested by the Ombudsman and the statement issued by the Director of Security which the broadcaster referred to in its decision.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Standard 5 requires that news programmes are truthful and accurate on points of fact. Mr Boyce argued that the item implied that the documents released confirmed that Sutch had a "longstanding association" with the KGB. The documents released actually supported Sutch’s innocence, he said. TVNZ referred to the "WB Sutch Target Assessment" which, it said, outlined Sutch’s contact with espionage targets and Soviet officials and concluded that he was working for the Soviets.
 Having viewed the documents released by the SIS, the Authority agrees with the complainant that the Target Assessment merely outlines Sutch’s contact with a number of New Zealand and overseas officials, and his attendance at various functions. Part IV of the Assessment speculates how the RIS (Russian Intelligence Services) could have appealed to Sutch, when recruitment might have occurred, and how Sutch was valuable to the Soviets. The Assessment concluded that:
...it is assumed that [Sutch] was recruited and is still working for the Soviets.
It is considered that Sutch has worked, and is still working for the Soviets, although it is difficult to explain every known action taken by him over the past 40 or so years...
While he must have considered that the Soviets could expose him, he probably would have satisfied himself that he had the ability to succeed in both worlds, despite his knowledge... that many people had doubts about where he stood politically, and that as Secretary, he would have to keep his hands clean. If so, he has proven himself, in that during his 66 years, we have accumulated six files on Sutch, and yet can prove nothing of which he is suspected. [emphasis added]
 In these circumstances, the Authority considers that the item was inaccurate in stating that "the SIS has released a previously top secret file that confirms former civil servant Sutch had a longstanding association with the KGB". It agrees with Mr Boyce that "the released documents don’t provide any convincing evidence for this position".
 Having found that the item was inaccurate, the Authority must consider whether to uphold this part of Mr Boyce’s complaint as a breach of Standard 5 (accuracy).
 The Authority acknowledges that upholding the Standard 5 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Decision No. 2008-040, the Authority determined that upholding a complaint under Standard 5 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.
 The Authority also considers that it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of the accuracy standard on this occasion. Upholding Mr Boyce’s complaint clearly promotes the objective of Standard 5, which is to protect audiences from receiving misinformation and thereby being misled. In Decision No. 2008-040 the Authority noted that ’audiences of news, current affairs and factual programmes have the right to receive information that is truthful and accurate’. In these circumstances, the Authority upholds the accuracy complaint.
 Standard 4 requires broadcasters to provide balance when discussing controversial issues of public importance. The Authority acknowledges that the question of Dr Sutch’s guilt was of great public interest at the time of his arrest and trial, and that it continues to be of historical interest to many. However, in the Authority’s view it is no longer a controversial issue of current interest or public importance as envisaged by Standard 4, even though the release of the SIS documents may have revived the controversy to some extent. Accordingly, Standard 4 does not apply and the Authority declines to uphold the balance complaint.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on One News and One News Tonight on 6 June 2008 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties
 The complainant submitted that TVNZ should be ordered to broadcast a statement summarising the decision, early in the 6pm news rather than at the end of the programme. He left it to the Authority to decide whether to order TVNZ to pay costs to the Crown, but considered that the decision to uphold the complaint might be sufficient to prompt the broadcaster to change its "approach to this issue, namely the assumption that someone is guilty without any real proof".
 TVNZ contended that the broadcast of a statement would be out of proportion to the aspect of the complaint that was upheld. It argued that the decision essentially hinged on the use of the word "confirms" and its interpretation in the context of the item. Combining this with the length of time that had passed since the Sutch papers were released and the limited public interest in the story, TVNZ considered that a broadcast statement would be inappropriate on this occasion.
 Further, noting the Authority’s decision that the question of Dr Sutch’s guilt was no longer a controversial issue of public importance, the broadcaster maintained that publication of the decision would be sufficient penalty.
 The Authority has considered the submissions on orders from the parties and it concludes that an order is not appropriate on this occasion. In reaching this decision the Authority has taken into account that the breach related to one sentence in a news item, that the Sutch matter is now historical, and the fact that the publication of this decision will serve to clarify the contents of the Sutch papers. In light of these factors, and considering the provisions of the Bill of Rights Act 1990, the Authority finds that the breach was not sufficiently serious to justify ordering a broadcast statement. Accordingly, the Authority considers that no further action is warranted.
Signed for and on behalf of the Authority
17 February 2009
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Simon Boyce’s formal complaint – 7 June 2008
2. Letter from TVNZ to the complainant regarding time extension – 7 July 2008
3. TVNZ’s response to the formal complaint – 1 August 2008
4. Mr Boyce’s referral to the Authority – 5 August 2008
5. TVNZ’s response to the Authority – 23 September 2008
6. Mr Boyce’s submissions on orders – 26 November 2008
7. TVNZ’s submissions on orders – 18 December 2008