Chief Ombudsman (Sir Brian Elwood) and Television New Zealand Ltd - 2001-216
- P Cartwright (Chair)
- B Hayward
- R Bryant
- J H McGregor
- Chief Ombudsman (Sir Brian Elwood)
BroadcasterTelevision New Zealand Ltd
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 – unfair – distortion
Interlocutory Decision 2001-ID001 – order to TVNZ to supply field tape to the Authority
Interlocutory Decision 2001-ID002 – order to supply field tape to the complainant
Standards G4 and G19 – item explained issue dealt with in Chief Ombudsman’s ruling – extract did not distort Chief Ombudsman’s comments – Chief Ombudsman not dealt with unfairly – no uphold
Standard G1 – item’s introduction inaccurate – uphold
This headnote does not form part of the decision.
A ruling by the Ombudsman that a person seeking a taxpayer-funded sex-change operation had been treated unfairly by the health bureaucracy was dealt with in an item on One News, broadcast on TV One between 6.00–7.00pm on 23 November 2000.
The Chief Ombudsman complained to Television New Zealand Ltd, the broadcaster, that the aspect of the interview with him which was included in the item focused on the type of operation rather than the administrative conduct of the Health Authority. That was contrary, he wrote, both to the agreement with the broadcaster reached before he gave the interview and to the thrust of the full interview recorded. He considered that the broadcast was unfair to him and that the editor had distorted the interview. He sought a copy of the field tape to illustrate his complaint.
TVNZ declined to supply a copy of the tape and the complainant requested the Authority to obtain a copy under the Commissions of Inquiry Act 1908.
TVNZ also declined to uphold the complaint that the item was unfair, or that it had been edited in such a way to distort the overall views expressed.
Dissatisfied with TVNZ’s decision on the complaint, the Chief Ombudsman referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
Before determining the complaint, the Authority issued two Interlocutory Decisions. The first ordered TVNZ to supply the Authority a copy of the field tape of the full interview with the Chief Ombudsman, and the second ordered the release of the field tape to the Chief Ombudsman to enable him to prepare a final submission.
For the reasons given below, the Authority declines to uphold the aspects of the complaint that the item was unfair or distorted the complainant’s contribution. It determines that the item’s introduction was inaccurate.
The members of the Authority have viewed a tape of the programme complained about and have read the correspondence which is listed in the Appendix. They have also viewed the field tape containing the full interview with the Chief Ombudsman from which an excerpt was included in the item broadcast on 23 November 2000. The Authority determines the complaint without a formal hearing.
An item on One News on 23 November 2000 reported the case of Joanne Proctor 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 took 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 in which the investigation had been portrayed by some parts of the media. He said that he agreed when assured that TVNZ 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 the 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.
The Broadcaster’s Response
In its response, TVNZ expressed the opinion that it would be best to handle the matter by way of a formal complaint under the Broadcasting Act 1989. It advised that it intended to examine the matter under standards G4 and G19 of the Television Code of Broadcasting Practice. Standard G4 requires broadcasters:
G4 To deal justly and fairly with any person taking part or referred to in any programme.
Standard G19 provides:
G19 Care must be taken in the editing of programme material to ensure that the extracts used are a true reflection and not a distortion of the original event or the overall views expressed.
Sir Brian in his reply said that the standards generally met his complaint. His concerns, he added, were non-adherence to the basis on which he had agreed to the interview, and that the interview as broadcast was not a true reflection of the overall views he had expressed. He again sought a copy of the tape.
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.
TVNZ responded with two letters: one contained the ruling of TVNZ’s Complaints Committee on the formal complaint; and one declining the Official Information Act request for a copy of the tape.
With regard to the formal complaint, TVNZ did not accept that it had described the case as rather "unusual" or a "landmark". Those descriptions, it wrote, might have been used by other media. What the item had described as unusual, TVNZ contended, was the consequence of the Chief Ombudsman’s decision:
… that of the Health Funding Authority having to decide on whether to use taxpayers funds to finance at least part of the process towards a sex-change operation (the item stated that the Authority would fund costs associated with Ms Proctor’s psychiatric assessments).
Noting that the item gave a brief history of Ms Proctor’s dealings with health authorities, TVNZ argued that complainant’s comment in the item indicated unambiguously that it was a "one-off" occasion. The on air comment from the complainant was:
The decision I took was one solely relating to her situation and is not a precedent for the future.
TVNZ pointed out that it was not uncommon for editors to select short, sharp statements from long interviews. It maintained that the item did not reinforce what the complainant considered was the incorrect impression created by the other media.
Declining to uphold the standard G4 aspect, TVNZ maintained that the sentence used encapsulated the views advanced. It also believed that the item fairly reflected the views and was not in breach of standard G19.
In the letter declining the Official Information Act request, TVNZ said that it did not regard the decision given in May 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 the fact that most tapes were recycled within a few days. However, that had not occurred on this occasion and, TVNZ added, 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 Referral of the Complaint to the Authority
The Chief Ombudsman then referred the matter to the Authority. He wrote:
As the Authority will note from the correspondence, I requested TVNZ to provide me with a copy of the tape it had made of the interview with me. It has refused to do so. But TVNZ has said it will provide the Authority with a copy should it be so directed.
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.
A view of the full tape, the Chief Ombudsman continued, would disclose that the issue was 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. With regard to the issue of fairness, he stated:
You will understand that there is considerable difference between deciding that someone has been the victim of an unfair administrative decision and determining that they should have a sex-change operation. No Ombudsman is empowered to decide on medical procedures and I did not. I believe that viewing the full tape and then viewing the item shown-to-air will demonstrate how unfairly I was treated in this matter.
The single excerpt used, he contended, distorted his overall views and was in breach of standard G19. On TVNZ’s approach, he wrote:
I am also concerned that in explaining its position, TVNZ states it believed "the public interest lay in what was unusual". While unusual events and their consequences may be "interesting" to the public, that is not the same thing as being "in the public interest". In this particular case, it seems to me that "the public interest" lay in learning that as the result of a formal complaint the Ombudsman decided that Joanne Proctor had been treated unfairly in the administration of her case.
No doubt the public was also "interested" in learning that she had sought a sex-change operation, which had been approved and then cancelled. My involvement was with the unfairness and not with the operation itself, as I made clear to the reporter and in the interview. In these circumstances, to link my involvement with the unfairness of Joanne Proctor’s case into the pros and cons of sex-change operations generally was not "in the public interest" as TVNZ claims. What was broadcast may have been "interesting" to the public but, in so far as it misled the public as to the Ombudsman’s role, I believe it to have been contrary to "the public interest".
The Broadcaster’s Response to the Authority
TVNZ was asked for its response to the referral. While it had nothing to add to the substance of the complaint, it expressed a belief that the forced release of a field tape by the Authority risked "eroding an important tenet of our democracy".
The Complainant’s Response
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.
Interlocutory Decision 2001-ID001, 12 March 2001
The Authority’s Interlocutory Decision 2001-ID001 contained the Authority’s ruling on the complainant’s request for the Authority to view the field tape before determining the complaint.
In that decision, the Authority concluded that it was appropriate to exercise its powers under s.4C(3) of the Commissions of Inquiry Act to order TVNZ to make available to it a copy of the field tape.
Interlocutory Decision 2001-ID002, 2 August 2001
When TVNZ complied with the Order in the first Interlocutory Decision, it opposed the release of the field tape to the complainant for a number of reasons. The complainant argued that it was essential for him to view the tape to complete his complaint. After assessing the arguments, the Authority’s ruling (2001-ID002) came to the following determination.
The Authority has given careful consideration to the arguments advanced by the parties. It acknowledges the broadcaster’s submission that reporters consider that field tapes have the status of a "reporter’s notebook" However, having exercised its discretion to obtain the material, the Authority concludes that the weight of the legal arguments requires that the material be released to the complainant because it considers that there are no compelling reasons to the contrary.
Having viewed the field tape, the Authority exercised its discretion to order the supply of the field tape to the complainant. It also required the complainant’s final comment on the complaint, and the return of the field tape, within two weeks.
The Complainant’s Final Comment
In his final comment, the complainant repeated his concern about the focus in the coverage which had emphasised a sex change operation at public expense. The field tape, he noted, confirmed that, during the interview, he had explained the purpose and outcome of the investigation. However, he wrote, the item which was broadcast indicated that he had recommended that a transsexual be given a sex change operation at taxpayer expense.
In support of his contention, the complainant cited one extract from the item which was broadcast where the presenter said that a sex change operation had been approved for Joanne Proctor, but then the Health Funding Authority had decided not to fund the operation. The complainant noted that the reporter had then said during the item:
…so Joanne went to the Chief Ombudsman and he agreed.
The complainant commented that that remark, as with most of the item, suggested that he had approved a sex change operation. He stated:
As a viewing of the full field tape makes clear, such a view of my involvement is not simply a distortion of what I said during the interview but contradicts the substance of that interview, misrepresenting my position as well as the recommendation I had made.
The complainant cited extracts of the interview taken from the field tape where, he said, he had explained the administrative matter which had been placed before him and the outcome of his decision.
The Broadcaster’s Response
In response, TVNZ argued that the points it had made in its letter of 5 December 2000 in reply to the original complaint remained valid. It contended that the complainant’s main concern was that the item did not turn out the way he would have liked it to. However, TVNZ added, "that is not his prerogative".
Looking at the item closely, TVNZ maintained that it was made clear that Joanne took her grievance to the Chief Ombudsman. In support of that contention, TVNZ pointed out that the complainant had cited the interview incorrectly in his final comment. The presenter had said, as opposed to what the complainant recorded:
… so Joanne went to the Chief Ombudsman with her grievance, and he agreed.
The item had made it clear that the "grievance" was the Health Funding Authority’s decision, and that had been the issue which the item had explained had been taken to, and ruled upon by, the Chief Ombudsman. TVNZ concluded:
As stated above the editor must have the right to use what part, if any, of the interview she or he thinks fit in the context of the news item. The fact that the Ombudsman was disappointed that more of his interview was not used is quite irrelevant. The point remains that he was not misquoted. The item did not say that the Chief Ombudsman endorsed the sex change operation. It said that he simply agreed that Joanne had a justifiable grievance with the Health Funding Authority.
The Complainant’s Final Response
In reply, the complainant asserted that his main complaint was that the excerpt used misrepresented his position and what he had said. He accepted TVNZ’s right to edit the interview, adding:
However, I do not believe that this right includes a right to extract a fragment of one sentence from an answer to a specific question, for use in a different context to support a proposition that has not been put to the interviewee and of which the interviewee is unaware.
The item, he averred, had not reported that his investigation dealt with an administrative decision. He insisted that the presenter’s comments that Joanne Proctor had gone to the Chief Ombudsman with her grievance distorted his position. Joanne Proctor’s "grievance" expressed in the broadcast, he continued, was not the "grievance" that he had investigated. He described the issue in the following way:
The question is whether, in the circumstances, the interview fragment was used in a context and manner that unfairly misrepresented my position, distorting the overall views I had expressed. In my submission, this was clearly the case.
The Authority’s Determination
The Chief Ombudsman complained about the One News item broadcast on 23 November 2000. He had agreed to an interview, he recalled, to explain his recommendation which focused on the administrative conduct of the health bureaucracy. However, he wrote, the item which was broadcast had extracted a fragment from one sentence and suggested that he had approved a sex change operation.
The Authority notes that the Office of the Ombudsmen provides a means of conflict resolution between an individual citizen and some aspect of government administration when a disagreement involving some aspect of that administration arises. The office has the power to access the facts of the dispute and carries out its work in private. It only reports to the parties involved in a particular dispute. The Ombudsmen do not make decisions. Rather, they make recommendations, and as each recommendation relates solely to the administrative dispute the Ombudsman is dealing with, it does not set a precedent.
On this occasion, the Chief Ombudsman complained to TVNZ that the item reporting one of his recommendations dealt with him unfairly, and that the editing of the item resulted in his views being distorted.
TVNZ declined to uphold the complaint. It argued that the item explained that Joanne Proctor made a complaint to the Chief Ombudsman because she was dissatisfied with the Health Funding Authority’s decision to revoke an earlier hospital decision which had approved a sex change operation. The item, TVNZ continued, had not suggested the Chief Ombudsman supported such an operation. Insisting on its right to edit interviews, provided the views of the interviewee were not distorted, TVNZ maintained that the brief extract included in the item which was broadcast reported that he had dealt only with the Ms Proctor’s grievance about health administration.
At the complainant’s request, the Authority has viewed the field tape of the full interview from which the extract was taken. The complainant had argued that this was necessary in order for the Authority to appreciate that he had agreed to an interview only on the basis that it would correct the public record. Other media coverage, the complainant argued, had suggested that his decision involved an "unusual recommendation" for "a man to be given a sex change operation at public cost".
Before focussing on the item and the Chief Ombudsman’s contribution, the Authority reviews the item’s introduction which said:
A tax payer funded sex change operation is still in doubt tonight. The Chief Ombudsman has recommended that a transsexual living in King Country be given the operation free of charge, but the Health Funding Authority maintains it needs to carry out more tests.
The field tape records that the Chief Ombudsman said as part of his answer to the first question he was asked:
My recommendation basically is, that the Health Funding Authority go back to the beginning, reassess this lady in terms of the standards required for procedures of this nature. If it is established that she still needs the surgery then, it should be undertaken in accordance with the usual processes and procedures adopted by the Health Funding Authority.
The Authority notes that TVNZ nominated standards G4 and G19 as the appropriate ones under which to assess the complaint. The Chief Ombudsman agreed, pointing out that his concerns included the point that the material used in the broadcast "was not a true reflection of the overall views I expressed".
In view of the material included above, the Authority considered that the complaint also raises a question of accuracy, and an allegation that standard G1 was breached. Standard G1 requires broadcasters in the preparation and presentation of programmes:
G1 To be truthful and accurate on points of fact.
TVNZ was asked to assess the introduction under standard G1. In its response, TVNZ maintained that the introduction reported that the Chief Ombudsman had recommended a sex change operation for a transsexual living in the King Country, but the operation was in doubt. It maintained that these facts were true and accurate.
TVNZ said that people who assumed that the recommendation was not confined to the specific instance had misheard the item.
In the Authority’s opinion, TVNZ’s response on this specific point misrepresents the Chief Ombudsman’s recommendation. He recommended a reassessment of the Health Funding Authority’s decision.
In his response to TVNZ’s comment on the accuracy matter, the Chief Ombudsman stated that the second sentence of the introduction, to the extent that it was a reference to what he had said during the interview, "was wrong". He noted that he had also said during the interview:
The recommendation was in 2 parts: Arrange for this woman to be assessed in the normal way. If the assessment confirms that gender assignment surgery is justified then proceed to do what was said was going to be done 3 years ago.
In situations where a participant in a news item feels a sense of grievance, the Authority, when determining a complaint about possible unfairness, must also take into account a broadcaster’s right to freedom of expression contained in s.14 of the New Zealand Bill of Rights Act 1990. However, the right to freedom of expression is not a right to be inaccurate. In this instance, the summary contained in the item’s introduction is not an accurate summary of the Chief Ombudsman’s recommendation. Accordingly the Authority decides that standard G1 was breached because the Chief Ombudsman did not recommend that a transsexual be given a sex change operation free of charge.
For the above reasons, the Authority determines that the broadcast by Television New Zealand Ltd in an item on One News on 2 November 2000 breached standard G1 of the Television Code of Broadcasting Practice.
The Authority now turns to the unfairness aspect of the complaint.
Having viewed the field tape, the Authority notes that the complainant, during the interview, explained in careful detail the basis for his recommendation. However, in its view, the field tape gave no indication of any agreement between the broadcaster and the complainant that this material would be the principal focus of the item to be broadcast. Nor was there any indication of an agreement on the field tape that the television interview would correct any perceived reporting failures of other media. The complainant’s responses to questions indicated that he thought the reporting thus far on the particular issue had created a wrong impression, but this in the Authority’s view falls short of an agreement with TVNZ.
In the Authority’s opinion, the item explained that Joanne Proctor had a grievance with the health authorities because of the authorities’ change of mind about funding a sex change operation. Ms Proctor took her grievance about the health administration’s change of mind to the Chief Ombudsman. He agreed that her grievance was justified. The item reported that as a consequence of the Chief Ombudsman’s decision, the patient might now have a sex change operation. However, whether that would occur, the item noted, was still in doubt.
In the item, the excerpt taken from the interview with the complainant followed a comment from the reporter that Ms Proctor had taken "her grievance" to the Chief Ombudsman. The Authority accepts that "her grievance" dealt with in the item referred to the administrative process. It reaches that decision because of the preceding words used by Ms Proctor. These were:
I just think there was a level of wilful blindness there, that they turned away from it instead of accepting the evidence that was being put in front of them.
The item was reported in the context of Ms Proctor’s "fight with bureaucracy" and she is quoted as saying:
Transsexuals refer to their pre-op years as lost years, and that’s quite literally what they are – and there’s an awful lot of them piling up behind me at the moment.
Next there was voice-over that stated doctors at Waikato Hospital approved a free sex change but that when the Health Funding Authority took over it reversed that decision. Ms Proctor then talked about "a level of blindness there".
That was followed by voice-over from the reporter: "So Joanne went to the Chief Ombudsman with her grievance, and he agreed".
In relation to "her grievance", the Chief Ombudsman said:
The decision I took was one solely relating to her situation and is not a precedent for the future.
Because the Chief Ombudsman’s contribution focused on administrative practices and because the comment, although brief, encapsulated his views, the Authority is of the opinion that the complainant was not treated unfairly, nor did the excerpt distort his views. It is clear to the Authority from the dialogue that preceded his remarks that the complainant’s comments contained in the item related to administrative matters. While the item noted that a sex change operation might be the outcome of the recommendation, it pointed out that the decision itself focused on health administration as that had been the matter which Ms Proctor had referred to him.
The story told in the item complained about involved the information that a tax-payer funded sex change operation might take place after a patient had taken her grievance with health administration to the Chief Ombudsman. The complainant said specifically that the decision did not create a precedent and the item did not record his support for or against transsexualism. As noted above, the Authority accepts that the excerpt of the interview used was sufficient and adequate for the news story which was being told. Editing is the prerogative of the broadcaster and, provided it does not distort anyone’s contribution, the broadcaster may use as much or as little of the material gathered as is necessary to present the news story accurately and fairly.
The complainant also raised the issue of whether parts or all of the item were in the public interest, or merely of interest to the public. In the present instance, the Authority considers that the distinction between in the public interest and of the public interest referred to by the complainant is immaterial to broadcasting standards.
The Authority also observes that to find a breach of standards G4 or G19 would be to interpret the Broadcasting Act 1989 in such a way as to place too great a limit on the broadcaster’s statutory freedom of expression in s14 of the New Zealand Bill of Rights Act 1990, and prefers to adopt an interpretation of the standards which is consistent with the Bill of Rights.
For the above reasons, the Authority declines to uphold the complaint that the item breached either standard G4 or G19 of the Television Code of Broadcasting Practice.
Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions on penalty.
TVNZ submitted that publication of the decision would suffice. In his submission, the Chief Ombudsman drew the Authority’s attention to two aspects of the decision which he felt did not reflect his views totally. These matters have been considered by the Authority and it sees no need to amend its decision.
On the matter of penalty, the Chief Ombudsman considered that given the time since the broadcast complained about, it might be "counterproductive for TVNZ to be required the rekindle the matter".
The Authority agrees with both the complainant and the broadcaster that the imposition of an order is not warranted in the circumstances.
Signed for and on behalf of the Authority
6 December 2001
The following correspondence was received and considered by the Authority when it determined the request to use its Commission of Inquiry Act powers, and when it determined the complaint:
- Chief Ombudsman’s letter of concern and request for tape to Television New Zealand Ltd –
24 November 2000
- TVNZ’s letter to the Chief Ombudsman referring to formal complaints process –
27 November 2000.
- Chief Ombudsman’s acknowledgment to TVNZ and further request for tape – 27 November 2000
- TVNZ’s response to Chief Ombudsman declining request for tape – 28 November 2000
- Chief Ombudsman’s letter to TVNZ requesting tape decision be reviewed – 29 November 2000.
- TVNZ’s response to Chief Ombudsman declining to uphold complaint – 5 December 2000
- TVNZ's response to Chief Ombudsman declining to supply tape – 5 December 2000
- Chief Ombudsman’s referral to Broadcasting Standards Authority – 19 December 2000
- TVNZ’s response to the Authority – 15 January 2001
- Chief Ombudsman’s final comment on request for tape- 25 January 2001
- Interlocutory Decision 2001-ID2001 – 12 March 2001
- TVNZ’s response to the Authority – 26 March 2001
- Chief Ombudsman response to the Authority – 2 April 2001
- TVNZ’s response – 9 April 2001
- Chief Ombudsman’s final comment on supply of tape – 19 April 2001
- Interlocutory Decision 2001-ID002 – 2 August 2001
- Chief Ombudsman’s final comment on complaint – 15 August 2001
- TVNZ’s response to the Authority – 23 August 2001
- Chief Ombudsman’s final response on complaint – 27 August 2001
- TVNZ’s response to the Authority on standard G1 – 3 October 2001
- Chief Ombudsman response on standard G1 – 11 October 2001
- Chief Ombudsman’s submission on penalty – 12 November 2001
- TVNZ’s submission on penalty – 14 November 2001