BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
One News – interview with Chief Ombudsman about tax-payer funded sex-change operation where health bureaucracy acted unfairly – incorrect impression portrayed of Ombudsman’s decision, contrary to agreement before interview – field tape sought to assist preparation of complaint

Order
Order made to supply tape to Authority – section 12 Broadcasting Act

This headnote does not form part of the decision.

 INTERLOCUTORY DECISION

The Background

An item on One News on 23 November 2000 reported on the case of Joanne Procter who was seeking a taxpayer-funded sex change operation.  Her application had been approved by doctors at Waikato Hospital, but that decision had been overruled by the Health Funding Authority.  She had taken her case to the Ombudsman, and the Chief Ombudsman ruled that she had been treated unfairly by the health bureaucracy.  A brief comment from the Chief Ombudsman was included in the item.  He said:

The decision I took was one solely relating to her situation and is not a precedent for the future.

Sir Brian Elwood, Chief Ombudsman, wrote to TVNZ about the item.  He advised that when approached by TVNZ for an interview he had expressed concern about the manner that the investigation had been portrayed by some parts of the media.  He said that he had agreed to be interviewed following TVNZ’s assurance that it would correct the record.

However, he wrote, none of the material to correct the record had appeared in the item.  Rather, he continued, the incorrect impressions created in other media were reinforced by the use of the terms “landmark recommendation” and “unusual recommendation” for “a man to be given a sex change at public cost”.

Sir Brian wrote:

If you review the tape of my interview you will see the emphasis I placed on the recommendation being neither a “landmark” or “unusual” one.  The issue was not the type of operation involved but the administrative conduct of a Health Authority which on the basis of medical justification had approved an operation under then current policy, but later cancelled the operation because of a change in policy.  Subsequently the individual concerned was subjected to a period of nearly 2 years of bureaucratic delay in addressing the administrative issues involved.  Regrettably the media focus has been upon the type of operation, gender reassignment surgery, and not upon the administrative conduct of the Health Authority.

In conclusion, he asked for a copy of a tape of the interview.

In its response, TVNZ advised that it was its policy not to release “field tapes”, adding:

They are regarded by our editorial management as being akin to the notebooks of newspaper reporters.

The Chief Ombudsman disagreed with TVNZ’s ruling and referred to an investigation he had undertaken under the Official Information Act in May 2000.  He asked TVNZ to reconsider its position.

In a further letter declining the request for the field tape, TVNZ said that it did not regard the decision given in May 2000 as creating a precedent whereby every interviewee could obtain a copy of any interview.  That, it added, would cause major difficulties to TVNZ’s activities given that most tapes were recycled within a few days.  However, that had not occurred on this occasion.  TVNZ added that it would supply a copy of the tape if directed by the Broadcasting Standards Authority, should the complaint be referred to the Authority under s.8 of the Broadcasting Act.

The Chief Ombudsman then referred the matter to the Authority.  He wrote:

Whilst I am of the view that TVNZ would be unable to justify its refusal to supply a copy of the tape in terms of the Official Information Act if an investigation were to be undertaken under that Act, I would prefer not to embark on that course if that can be avoided.  As you will understand, it is the Ombudsmen’s statutory function to review refusals to make official information available on request.  The copy of the tape falls within the definition of “official information”.

However, in order to be able properly to support my complaint, it would be helpful to me to have recourse to the tape in question.  As the Authority has power under s4C(3) of the Commissions of Inquiry Act 1908, to order TVNZ to make the tape available to me for this purpose, I hereby apply to the Authority for such an order.

The contents of the full tape, the Chief Ombudsman continued, would disclose that the issue had been whether a medically approved operation which had been scheduled ought properly to have been cancelled by a subsequent administrative decision.  The nature of the operation, he added, was neither material nor relevant.

In its response, TVNZ expressed a belief that the forced release of a field tape by the Authority risked “eroding an important tenet of our democracy”.

In his reply, the Chief Ombudsman stressed that he had requested only a copy of the interview with him.  It was the manner in which the interview was obtained and subsequently edited which was unfair and a distortion of his views.  For the purposes of his complaint, he said, he had applied to the Authority to require production of the tape, rather than use of Official Information Act procedures.

The Authority’s Ruling

Section 12 of the Broadcasting Act 1989 allows the Authority to use certain provisions in the Commissions of Inquiry Act 1908.  Section 4C(1)(b) of the Commissions of Inquiry Act provides that a Commission may:

Require any person to produce for examination any papers, documents, records, or things in that person’s control, and to allow copies of or extracts from such papers, documents, or records to be made.

Section 4C(3) of the Act states:

For the purposes of the inquiry the Commission may of its own motion, or on application, order that any information or particulars, or a copy of the whole or any part of any paper, document, or record, furnished or produced to it be supplied to any person appearing before the Commission, and in the order impose such terms and conditions as it thinks fit in respect of such supply and of the use that is to be made of the information, particulars, or copy.

The Chief Ombudsman has asked the Authority to obtain the field tape of the interview with him to enable him to complete his complaint which he has referred to the Authority.

The Authority has the power to require the production of that material, and, in its discretion, it may give directions as to whether it should be made available to other parties, and if so, on what terms.  The Authority concludes that it is appropriate for these powers to be exercised in the present case.

Pursuant to the provision in s.12 of the Act, the Authority directs TVNZ to make available to it the field tape of the interview with the Chief Ombudsman given on 23 November 2000.  Further, the Authority now invites TVNZ to make submissions as to whether the material should be released to the Chief Ombudsman and if so, on what terms.  The material and the submissions are to be lodged with the Authority by 28 March 2001.

Order

Pursuant to s.12 of the Broadcasting Act 1989 and section 4C of the Commissions of Inquiry Act 1908, the Authority orders Television New Zealand Limited to make available to it the field tape of an interview given by the Chief Ombudsman referred to in TVNZ’s letter to the Chief Ombudsman of 5 December 2000.

Signed for and on behalf of the Authority

Judy McGregor
Member
12 March 2001