BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Fair Go – item about pamphlet distributed by complainant – a legal firm – offering assistance to victims of sexual abuse in dealing with ACC – failed to maintain standards of law and order – unbalanced and complainant’s response presented inadequately – unfair as the victim’s (Sally) waiver whose story told was incomplete – inaccurate – hearing sought in view of numerous complex legal and factual issues – application declined – disclosure of field tape of interview with "Sally" and assorted correspondence sought

Decision on disclosure application
Declined

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

Background

[1] A pamphlet offering assistance to victims of sexual abuse in securing compensation from ACC was distributed by the complainant – a legal firm. On behalf of a victim, named as "Sally", Fair Go reported her dissatisfaction with the services of the complainant, and investigated the propriety of the pamphlet in question. The item was broadcast on Fair Go on TV One at 7.30pm on 26 June 2002.

[2] Wakefield Associates complained to Television New Zealand Ltd (the broadcaster) that the broadcast breached the standards relating to the maintenance of law and order, balance, fairness and accuracy. It said that the item displayed a lack of understanding of the service offered, and as TVNZ had failed to provide an appropriate waiver from "Sally", it was unable to respond adequately to the issues.

[3] In response, TVNZ acknowledged one inaccuracy, which it described as "minor", but declined to uphold all the other aspects of the complaint. It maintained that it had sent the complainant an appropriate waiver and the standards had not been breached.

[4] Dissatisfied with TVNZ's decision, Wakefield Associates referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[5] When it referred its complaint to the Authority Wakefield Associates requested a formal hearing before the Authority for the determination of the complaint. The grounds of the application were that the complaint involved important and serious issues which were factually and legally complex.

[6] TVNZ considered that there was nothing in the complaint that justified departure by the Authority from its usual practice of determining complaints without a formal hearing. It maintained that the item involved a straightforward consumer rights issue.

[7] In an Interlocutory Decision (No: 2002-159, dated 10 October 2002), the Authority declined the application from Wakefield Associates for a formal hearing. That decision was made mainly on the basis, first: that a principal issue raised in the complaint did not involve broadcasting standards, and second: that the issues of disputed fact in the most part dealt with credibility issues which, it considered, were unlikely to be resolved at a hearing.

Application for Disclosure

[8] Wakefield Associates has now asked the Authority to exercise the powers contained in s.12 of the Broadcasting Act, and order TVNZ to provide the Authority with all correspondence, documents, transcripts or copies of video recordings held by TVNZ gathered in the preparation of the item on Fair Go.

[9] Initially a similar request was made by Wakefield Associates to TVNZ under the Official Information Act and the Privacy Act. TVNZ’s response was that information contained in the recordings and transcripts, together with one item of relevant correspondence, was to be withheld in reliance upon s.9(2)(i) of the Official Information Act.

[10] Subsequently, Wakefield Associates asked the Chief Ombudsman to investigate and review TVNZ’s response to its request. In so doing, it requested provision of "… all information gathered during the course of preparation of this Fair Go programme … ."

[11] TVNZ advised the Office of the Ombudsmen that it held a field tape of the interview with "Sally", although the tapes of the interviews with Mr Bevan of the Whitireia Community Law Centre and Mr Russell of the Consumers Institute had been re-used. It also held correspondence with "Sally" and Messrs Bevan and Russell.

[12] TVNZ declined to make the material available, and the Ombudsman declined to make a decision in view of the provisions in s.12 of the Broadcasting Act . The Ombudsman also advised that he had spoken to the Office of the Privacy Commissioner in regard to some of the material sought, and that Office had declined to make a decision for the same reason.

[13] In the application to the Authority, Wakefield Associates argued that it was necessary to make an order for the production of the information originally requested of TVNZ:

To enable a full and fair hearing to be held into the actions of this broadcaster; and

To enable a determination to be made on a number of the factual issues already detailed in its complaint.

The Broadcaster’s Response to the Application

[14] Starting from the position that the Authority should exercise its s.12 powers sparingly given the broad concept of freedom of the press, TVNZ contended that provision of the unedited tape risked breaching "Sally’s" privacy.

[15] TVNZ pointed out that it "did not dream up ‘Sally’s’ complaint", and that it had responded in full to the detailed formal complaint from Wakefield Associates. It reiterated its submission to the Authority on the application for a formal hearing stating that, it considered, there was nothing in the complaint which required the Authority to depart from its usual procedures.

The Authority’s Determination

[16] 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.

[17] 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.

[18] The intention of the legislation (s.4B) is to allow the Authority to obtain material only if it is necessary "to deal effectively with the subject of the inquiry". The Authority is not inclined to exercise its powers unless a persuasive case to do so is advanced. In considering applications of this nature, the Authority notes the sensitivities of broadcasters in making "field" tapes available, as broadcasters regard "field" tapes as being akin to a reporter’s notebook.

[19] The reasons advanced by the complainant are listed in paragraph [13] above. The complainant has not advanced any case that "Sally" did not make the statements contained in the broadcast. The Authority is aware that the complainant questions her credibility, but it has not been suggested that viewing the tape would assist the Authority in determining that aspect. Furthermore, it notes that "Sally’s" privacy would be intruded upon should the tape be disclosed.

[20] The Authority is also aware that the complainant has challenged some of the opinions expressed by Messrs Bevan and Russell. However, no reasons have been advanced why the determination of a broadcasting standards complaint would be furthered by disclosing correspondence between TVNZ and those participants.

[21] The Authority has not been persuaded that refusal to make the order sought will preclude it from dealing effectively with the subject of the inquiry, in this case referral of the complaint made against TVNZ arising out of the Fair Go programme screened on 26 June 2002.

For the reasons given above, the Authority declines the application from Wakefield Associates to exercise its powers under s.12 of the Broadcasting Act 1989.

[22] In its earlier Interlocutory Decision (No: 2002-159), the Authority asked that the complainant provide a written submission which explained why it was dissatisfied with TVNZ’s decision to decline to uphold the complaint. Wakefield Associates asked that, should its application for disclosure be declined, it be allowed to complete its referral after the Ombudsman or the Privacy Commission had reached a decision.

[23] The Authority has explained that it does not regard the material sought as relevant to the matters of broadcasting standards raised in the complaint. Accordingly, it declines the complainant’s request and now requires, within 20 working days, Wakefield Associates’ submission which explains why it is dissatisfied with TVNZ’s decision.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
7 November 2002