NEW ZEALAND CUSTOMS AGAINST NEW ZEALAND HERALDBackground
New Zealand Customs have complained about an article published by the New Zealand Herald online on November 7, 2014 headlined "Built in 10 day buffer: Documents reveal Customs' system 'for OIA delay'."
The nub of the complaint focuses on part of one sentence in the article: "Customs developed a special process for releasing public information to the media which included an increase in delays and the freedom for its Cabinet minister to change whatever was released, according to documents provided to the Herald."
Customs argued the second part of that - that the minister had the freedom to change whatever was released - was factually wrong and was not borne out by the specific documents referred to or by practice in the department.
It concedes that ministers are consulted and kept informed about OIA requests but says there is an important difference between that and the freedom to change whatever is released. It claims what the Herald has printed implies a breach of the Cabinet Manual rules that ministers should not be involved in day to day operations.
It has cited a breach of the principles of accuracy, fairness and balance and comment and fact.
The Process and the Response
Customs asked the Herald to withdraw the article, and publish a correction and apology and give the department a written apology from the reporter. In subsequent correspondence with the Council Customs added the minister to those who should receive an apology.
It was explained to Customs that the Council sanction, if a complaint was upheld, was publication of the decision and annotation to the article and that a withdrawal would only be expected where an article breached privacy or caused some harm to the individual.
After some delays over the summer Shayne Currie responded on behalf of the Herald standing by the story.
As background he pointed to the context including an interview with former Customs lawyer Curtis Gregorash who had said he was told by senior Customs executives to refuse OIA and Privacy Act requests and that he believed this was at the direction of former Customs Minister Maurice Williamson.
Ombudsman Beverly Wakem has launched an inquiry into OIA practices and the Herald quoted her saying she was appalled by the allegations made and that anecdotally she had been told similar stories by a number of people.
Dame Beverley has chosen 12 agencies for formal review, including Customs, and ministers' offices will be asked to complete a survey of OIA practices.
The Herald said the part of the sentence mentioned in the Customs complaint was an interpretation of two clauses in a Customs policy document.
Currie said that under the sub-heading "feedback from the minister's office" the ministerial team "will pass the feedback to the P&S team for appropriate review and revision (my emphasis) in conjunction with the area responsible for preparing the response, and Legal-Corporate. The Minister's Office brings a new perspective to requests and its comments can enhance a response. (My emphasis)
In addition the Minister may wish to discuss a request and the information it has brought together and he may wish Customs Communications to work with his office regarding any responses to media enquiries."
(The council notes that at the first point emphasised by the Herald the policy actually reads "review and possible revision".) Currie said that while the sentence complained about "may be confronting, the essence is correct" and was backed up by comments by the former senior Customs lawyer.
The Herald offered to append a comment to the article stating Customs had taken exception to the part-sentence.
Customs refused that and proceeded with its complaint reiterating that it was wrong to imply the minister had the freedom to change any response and that it would be outside guidelines to do so - and they were in line with other departments' guidelines.
Wide concerns among the media and the public have led the Ombudsman to launch an investigation into Official Information Act practices in the public sector.
The Herald may have been entitled to form the view that departmental rules and guidelines, including requirements for consultation, do open the way to political influence and interference in information releases.
But the documents provided to the Herald, and referred to in the article, do not grant the minister the freedom to change whatever is released.
Therefore the part-sentence included in the article is factually incorrect and the Council upholds the complaint on that basis.
Press Council members considering the complaint were Sir John Hansen, Chris Darlow, Tim Beaglehole, Liz Brown, Jenny Farrell, Sandy Gill, Marie Shroff, Vernon Small, Mark Stevens and Stephen Stewart.
John Roughan took no part in the consideration of this complaint.