WEST COAST DISTRICT HEALTH BOARD AGAINST WESTPORT NEWS

Case Number: 2002

Council Meeting: AUGUST 2007

Verdict: Not Upheld

Publication: Westport News

Ruling Categories: Embargoes

Introduction
The West Coast District Health Board, through its Chief Executive Officer, Kevin Hague, complained that The Westport News breached an embargo. The complaint is not upheld.

Background
On 16 February 2007 the Kawatiri Maternity Unit in Westport closed for birthing. The loss of birthing services, the reasons for it, the consequences for women in the district, and its future were all big news issues locally.

On 2 May, at approximately 11am, the Board released to the media a copy of the New Zealand College of Midwives review of Westport Maternity Services (“the review”), subject to an embargo against publication before 4pm. A press conference was scheduled for 4pm.

The reporter covering the story contacted the Board at approximately 1pm to advise that the newspaper intended to publish (The Westport News is normally available from 3pm) and would be happy to discuss it with Mr Hague or the community liaison officer, Vikki Carter. The reporter was unable to contact Mr Hague for comment. Ms Carter responded by email. She advised that the reason for the embargo was to ensure the media had time to read the report and that affected Board staff were fully informed. She was later advised in an email from the reporter that the editor had ordered distribution be delayed until 4pm so that the embargo would not be breached.

At approximately 2 pm, Mr Hague issued a press release, which did not carry an embargo, summarising the Board’s response to the review. The reporter’s front page story about the review drew on that statement to include coverage of the Board’s response to the review. (The editor had held the front page.)

The reporter attended the press conference at 4pm and it was reported, along with community reaction to the report, the next day.

Complaint to the editor
On 3 May, Mr Hague wrote to the editor complaining that the embargo had been intentionally breached “because of competitive spirit rather than freedom of information”. Mr Hague advised that unless a formal apology was forthcoming, complaint would be made to the Press Council.

The editor, Colin Warren, responded to Mr Hague by letter dated 8 May. In that letter he declined to apologise on the basis that the alleged breach, if in fact there was one, was unintentional and could only have been a matter of minutes. He explained that The Westport News is not normally printed until 2.45pm but on 2 May the print run was delayed so that the first copies were not available until approximately 3pm and the editor had expressly instructed dispatch staff that deliveries to agents and shops were not to take place before 4pm (subscription deliveries always begin about 4pm).

The editor further argued that even if the paper had inadvertently been distributed a few minutes before 4pm it cannot seriously have cut across the stated reasons given for the embargo. The Board had had the report for at some time already so had had plenty of time to inform interested parties and there was no suggestion that the story had been inaccurate, unfair or unbalanced or otherwise suffered from a lack of analysis of the review. The editor argued that the real reason that the embargo had been set for 4pm was an attempt to prevent Westport News from breaking the story before The Press, which had been covering the story in a less prominent way.

Complaint to the Press Council
By letter dated 5 May (received on 15 May), Mr Hague complained to the Press Council. He argued that an email from the reporter on 2 May had made it clear that the newspaper would intentionally breach the embargo. Mr Hague went on to say:

“Members of my management team bought The Westport News from shops in Westport before 4pm, meaning that members of the public and other staff are also likely to have done so. … it is indisputable that this frustrated the DHB’s intention to announce the report’s findings balanced with its own responses, and that it was the newspaper’s intention to do so. The media release issued with the report … had been intended only to supplement the comments that were to be made by me and the Director of Nursing and Midwifery at that afternoon’s media conference.”

By email dated 8 August 2007, Mr Hague belatedly advised the location of one newsagent where a staff member purchased a newspaper “shortly before 4pm.”

Mr Hague argued that if Westport News did not wish to be bound by the embargo, then it should not have accepted the embargoed review nor commented upon it (relying on case 747). He agreed that there may be situations in which an embargo cannot be justified but argued that in this case, the public interest would not have been thwarted by honouring the embargo:

“The DHB had determined sometime before receiving it that it wished to be able to make public as much of the report as possible, but in tandem with the DHB’s responses to its recommendations. ….Even though the breach may only have been a question of minutes, the point is that by abuse of the courtesy of pre-release supply of the report, the Westport News in fact thwarted the DHB’s legitimate intention to release the report in proper context.”

Mr Hague said that newspaper publication schedules had not influenced the timing of the embargo:

“The timing was determined by two factors: our need to have briefed a number of staff on different shifts in both Greymouth and Westport prior to public release, and the availability of myself and [the Director of Nursing and Midwifery] for the media conference.”

He considered the quality of the story as published to be irrelevant.

The Newspaper’s Position
The newspaper’s position is that it did not intentionally breach the embargo and, if it inadvertently did so, then it was inconsequential and, in any event, the embargo was unreasonably imposed.

The editor referred to email correspondence between the chief reporter and Ms Carter specifically advising that the newspaper would not be available prior to 4pm and therefore not in breach of the embargo. He also pointed out that if the newspaper had wanted to take the scoop by intentionally breaching the 4pm embargo, he could have run the story on the newspaper’s radio station, Coast FM, at 12.30pm and 1.30pm. Distribution staff had express instructions not to release the paper to newsagents until 4pm.

In response to the allegation that a newspaper had been sold “shortly before 4pm” the editor said:

…. I have checked with the drivers who say they followed my instructions. It is possible, given that we did not synchronise watches, some bundles could have been delivered a few minutes ahead of the 4pm deadline.

The editor argued that, if there had been an inadvertent breach of the embargo it could only have been a matter of minutes and was inconsequential. He insisted that the reporter had fully digested and analysed the review and the press statement as evidenced by the accurate, fair and balanced story. The media conference did not provide any further “context” that was not available from the review itself or the Board’s press statement. The Board had had the review since 23 April, which provided ample time to inform interested parties.

The editor also maintained that, in any event, the embargo was unreasonable. He argued that the real reason that the Board had embargoed the review was an attempt to ‘manage the news … by carefully crafted public relations language, by delaying the release of information, or by favouring sympathetic outlets’ (quoting from case 747). In this case, the press statement ignored the key finding and the conference “offered little more than Board spin.” He said that Mr Hague had refused to answer questions about why the Kawatiri crisis had occurred and whether the Board’s recruiting processes were at fault. The embargo favoured a competitor, which had provided less robust coverage of the issue. The editor also pointed to a 2005 Ombudsman’s investigation into previous misuse of the embargo convention by the Board.

Discussion
The Press Council has always enforced the convention that the terms of an embargo are binding provided that they are reasonably imposed (see cases 747, 862, 992 and the 2002 annual report). But it is not an automatic muzzle:
Not all embargoes are equal. This form of restraint on the freedom of the press can obviously be misused by agencies or officials seeking to advance special agendas. There is absolutely no requirement to accept without question the strictures of Ministers of the Crown or other providers of releases (case 862).
Editors are entitled to enquire into the reasons for an embargo and, where appropriate, to negotiate a change of terms. There may also be cases where, having considered all the relevant facts, the proper approach is to ‘publish and be damned’ but they will be extremely rare.

In this case, the complaint that the embargo was intentionally breached is not upheld. The email correspondence from the reporter initially challenging the embargo and unsuccessfully attempting to renegotiate the terms, upon which Mr Hague relies, cannot be looked at in isolation. Events moved on. The editor’s subsequent actions and the email from the reporter to Ms Carter both evidence a clear intention to honour the terms of the embargo.

Mr Hague advised that a staff member had purchased a paper at a local newsagent “shortly before 4pm”. The editor concedes that, despite his best efforts, it is possible that some papers may have been delivered “a matter of minutes” before the embargo expired. On that basis the Press Council accepts that there may have been an inadvertent breach of the embargo. But, in the absence of absolute certainty about timing and given the efforts of the editor to conform to the embargo, the newspaper’s actions cannot be faulted.

As for any damage done to the interests of the DHB the Council notes that there had been ample time to brief staff. Moreover the story as published included the “context” of the DHB’s response to the report, taken directly from Mr Hague’s press release. The Press Council accordingly finds that any breach was inconsequential.

The Press Council wishes further to record that The Westport News appears to have conducted itself both ethically and professionally. The reporter quite properly queried the reasons for the embargo and attempted to negotiate a change in its terms; the editor took necessary steps to honour the terms as fixed; the Board was courteously kept advised, and the resultant story was accurate, fair and balanced. It is the business of a newspaper to pursue the public interest.

Equally officials and others with responsibilities for releasing or commenting on official reports and similar documents are reminded that there has to be good reason for delaying release of information which is in the public interest.

The complaint is not upheld.

Press Council members considering this complaint were Barry Paterson (Chairman), Aroha Beck, Kate Coughlan, Penny Harding, John Gardner, Keith Lees, Clive Lind, Denis McLean, and Lynn Scott

Alan Samson took no part in the consideration of this complaint.