BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

The Authority has made the following directions in respect of the Waikato District Health Board’s referral:

• declined to accept the two affidavits submitted as part of the WDHB’s complaint
• invited the WDHB to provide alternative evidence to support its complaint referral, with reference to the formats outlined at paragraph [8] by 24 January 2022
• asked RNZ to identify information  it wishes to rely on by 24 January 2022, and the WDHB to provide confirmation as to whether such information is in dispute or can be accepted as correct within a further 10 working days
• invited any further comment from the parties regarding the management of these issues by 24 January 2022.

Background

[1]  The Waikato District Health Board (WDHB) has referred a complaint to the Authority regarding a broadcast of Morning Report on 29 July 2021 on RNZ National (the broadcast). This complaint referral contained two affidavits filed in High Court proceedings injuncting Radio New Zealand Ltd (RNZ) from accessing, using or disclosing information which was obtained in a cyber-attack on the WDHB and released on the dark web.¹ These affidavits are subject to High Court orders,² as follows:

a)         They are to be kept confidential and cannot be made available for inspection.

b)         No individual or organisation, other than WDHB, or with the WDHB’s written consent, may publish or disclose any information contained in them (subject to certain exceptions which are irrelevant for present purposes).

[2]  WDHB sought to provide the affidavits to the Authority ‘on a strictly confidential basis and subject to the BSA restricting access to the affidavits to the members required to consider the complaint and making confidentiality orders in respect of the affidavits, equivalent to those put in place by the High Court’. WDHB subsequently clarified that Authority staff and the Authority’s external legal advisors may have access to the affidavits for the purposes of providing advice to the Authority.

[3]  In this way, however, the Authority would be prohibited from sharing the affidavits (and/or information about their content) with RNZ.

[4]  In its submissions to the Authority on the complaint, RNZ raised two preliminary issues:

(a)  The inclusion of the confidential affidavits in the WDHB’s submissions interferes with natural justice as:

i.  The Authority is restricted from publishing the contents of the affidavits in its final decision.

ii.  The Authority is restricted from putting particular aspects of the affidavits before RNZ.

iii.  RNZ is unable to publish any content from the affidavits in its response to the WDHB’s referral.

(b)  High Court orders requiring destruction of records limit RNZ’s ability to respond to the referral ‘in a meaningful way’:

i.  As a result of the High Court injunctions obtained by the WDHB, RNZ has destroyed all documents which showed ‘the child at the heart of all these complaints was held in one of [the WDHB] hospitals for 67 days for no reason that required hospitalisation’.

ii.  ‘RNZ will be submitting that there is an overriding public interest in the public knowing that a child was held in a WDHB facility for 67 days, but unless the DHB agrees that the child was held in the ward for 67 days for no clinical or medical reason other than because no suitable bed could be found by Oranga Tamariki, RNZ is unable to prepare a proper submission with respect to any of the complaints for the Authority's consideration.’

[5]  We have carefully considered RNZ’s submissions. The purpose of this decision is to offer direction to the parties regarding the way in which the Authority proposes to undertake its consideration of the complaint.

[6]  We note that none of the Authority members have read or had access to the affidavits at this stage.

Analysis

(a)  The inclusion of the confidential affidavits in the WDHB’s submissions

[7]  The WDHB referred to the confidential affidavits as describing ‘the circumstances in which the broadcast took place and the harm suffered as a result’. We consider the inclusion of confidential affidavits in the WDHB’s submissions, where information contained in them may only be published with the WDHB’s consent, gives rise to issues of natural justice and procedural difficulties in the Authority’s management of the complaint.

[8]  We also note the Broadcasting Act 1989 requires the Authority to consider complaints with as little formality and technicality as is permitted by the Act, a proper consideration of the complaint, and the principles of natural justice.³ For this reason, we do not require evidence to be presented in the form of formal affidavits (for example, to consider something as evidence of harm). In the circumstances, the Authority will not accept the affidavits subject to the terms on which they are presented. We suggest WDHB provide, as it sees fit, either:

a)  evidence of the harm or other information captured in a separate document prepared specifically for the Authority (and in a form which can be shared with RNZ), or

b)  a summary of the affidavits which does not breach the confidentiality orders (which can be shared with RNZ), and can be the subject of submissions, and published as necessary in connection with management and determination of the complaint.

(b) The effect of the High Court orders on RNZ’s ability to respond to the complaint

[9]  We do not consider it appropriate to order the WDHB to provide copies of documents to RNZ and the Authority which RNZ has been ordered to destroy by a court order.

[10]  However, to avoid similar issues of natural justice, WDHB should not refer to or rely upon, in its submissions or other evidence presented to the Authority, any evidence that cannot be shared with RNZ and published as necessary in connection with management and determination of the WDHB’s complaint.

[11]  To the extent RNZ wishes to rely on information from such documents (which WDHB is not putting into evidence), we invite:

a)  RNZ to provide a list of the relevant matters (eg whether the child was held in the ward for 67 days for no clinical or medical reason and any other topics)

b)  WDHB to confirm whether or not such matters are in dispute and/or otherwise prohibited from the Authority’s consideration.

[12]  Following this, if necessary, the Authority will reconsider the matter. 

For the above reasons, the Authority:

• declines to accept the two affidavits submitted as part of the Waikato District Health Board’s complaint
• invites WDHB to provide alternative evidence to support its complaint referral, with reference to the formats outlined at paragraph [8] by 24 January 2022
• invites RNZ to identify information it wishes to rely on by 24 January 2022 and WDHB to provide confirmation as to whether such information is in dispute or can be accepted as correct within a further 10 working days.
• invites any further comment from the parties regarding the management of these issues by 24 January 2022.
   

Signed for and on behalf of the Authority

Susie Staley
Chair
14 December 2021

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  The Waikato District Health Board’s complaint referral – 29 October 2021

2  RNZ’s submissions on the complaint – 19 November 2021

¹ Waikato District Health Board v RNZ & Ors [2021] NZHC 2002 and Waikato District Health Board v RNZ & Ors HC Auckland CIV-2021-485-379, 23 August 2021
² Waikato District Health Board v RNZ & Ors HC Auckland CIV-2021-485-379, 23 August 2021
³ Broadcasting Act 1989, s 10(2)