A limit at last on how unreasonable public agencies can be with media

Newsroom

07-07-2025

MediaRoom column: Public drug-buying agency Pharmac has conceded to the Chief Ombudsman that its conduct towards the former Today FM station and journalist Rachel Smalley 'fell below the standard expected of a public sector agency' and has apologised.
Pharmac refused to give Today FM or owner MediaWorks interviews (and, briefly, any information) after its ex CEO claimed Today had breached an embargo on news it was starting consultation on approving the cystic fibrosis drug Trikafta in December 2022.
But neither Smalley nor the station had been provided embargoed material, so could not have breached the embargo, and their attempts to reverse the Pharmac interview ban went unheeded for a week. Multiple attempts to set up interviews with the agency failed.
Smalley complained to the Ombudsman, and more than two years on, on his last day in office, Chief Ombudsman Judge Peter Boshier found against Pharmac, ruling it 'acted unreasonably' in its actions against the media outlet.
He said Pharmac's responses to Today FM lacked clarity on how to resolve matters and also the duration of its declared ban on interviews.
To have banned Today from receiving 'information' could have inadvertently constituted a breach of the Official Information Act, the finding says.
'Any request for information must be considered under the OIA, and depending on the circumstances, a request for an interview may also amount to a request for information under the OIA.'
The finding, while historic and specific, does serve as a message to other public agencies, executives and communications staff on what they cannot do to exclude or disadvantage journalists and news organisations without proper reason.
Judge Boshier did not have to make any recommendations over his 'acted unreasonably' finding, he said.
'This is because Pharmac has accepted that Today FM did not breach its embargo, that there were alternative ways to resolve its concerns about the reporting. And it should not have imposed the stand-down. Pharmac will also be apologising to the complainant.'
The apology to Smalley from its general counsel did not mention departed Pharmac CEO Sarah Fitt, who made the original ban threat and dealt with Today's complaints in the days following.
Fitt had been revealed in late 2024 to have privately engaged in internal Pharmac email exchanges deriding Smalley and her show. Fitt finally left the role in May, after seven years, and the apology was sent to Smalley on Fitt's final day in the top job.
Pharmac wrote: 'On behalf of Pharmac, I wish to apologise for the way our organisation previously engaged with you, including the events of December 2022.
'Pharmac's handling of Today FM's coverage of the Trikafta story was a regrettable error of judgment. Pharmac has accepted the Chief Ombudsman's finding of unreasonableness, with regards to the imposition of a stand-down period on MediaWorks and the failure to explain Pharmac's position clearly.
'Pharmac also accepts that:
a. Today FM did not breach Pharmac's embargo, nor was the radio station subject to it;
b. Pharmac should have explained its concerns to Today FM and not have attributed your personal tweet to MediaWorks;
c. Normatively, the decision to impose a stand-down period and the manner in which it was imposed fell below the standard expected of a public service agency; and
d. Pharmac's actions were exacerbated by subsequent internal communications which were unnecessarily hurtful and personal.'
'I wish to clarify that, despite the poor choice of words, Pharmac did not intend at any time to withhold official information from you or Today FM. What Pharmac failed to do was to clearly explain the reason for that refusal and invite you (or Today FM) to send your questions through another means,' general counsel Saar Cohen-Ronen wrote.
'Pharmac values your health advocacy work. I can only hope that the Ombudsman's report of today, and this letter of apology, will assist with turning a corner in our mutual work.
'We acknowledge that, while being held to account may not always be a pleasant experience, it is an essential feature of a healthy democratic society and a transparent public service which seeks to continuously improve. We encourage you to continue to engage with Pharmac and to keep advocating for a stronger healthcare system, to help make New Zealand a better place for us all.'
Today FM closed in March 2023 after a year on air. Rachel Smalley was made a Member of the NZ Order of Merit in the King's Birthday Honours in 2024 for services to broadcasting and health advocacy.
Is it a first strike for AI journalism before the Media Council?
Illustration: Getty Images
An unusual and low-level Media Council case involving the NZ Herald adding a summary above a syndicated RNZ story and introducing an error could well be a milestone in AI's involvement in journalism here.
The council found the Herald had breached the principle of accuracy when it summarised the RNZ story on Cook Strait ferry costs wrongly. The judgment also criticised the Herald for redirecting the complainant to RNZ, and leaving its error in place on the story for two months.
So far, so bad, but it falls more into the misdemeanour than felony category when it comes to Media Council breaches.
The paper told the council the incorrect bullet point (which inflated the Government's Cook Strait ferry-building contract with Hyundai from $550m to $3 billion) was 'written by a NZ Herald digital producer.'
Which is where things become mildly interesting. Within the Herald's own newsroom, there is suspicion the summary bullet points on such a story at that time (early March) would have been produced, first, by the editorial First Look AI tool.
That programme runs through the text of a story and delivers the digital producer a ready-made set of summary bullet points. It was routinely used at the time and was a standard addition to syndicated stories from other media, such as RNZ.
A staffer aware of the system says it's 'likely the false bullet points were produced by the in-house AI model'; another is 'fairly certain' AI was involved in the process.
Whether in this case the digital producer either took it upon him or herself to write the points, or re-worked any of the AI suggestions, or published them as offered, might never be known.
The Herald's round of editorial job losses through that period included a group of digital producers. Around the same time, the Herald home page curation was largely taken over by AI deciding what stories would appear where and for how long.
The paper is sticking by its wording to the Media Council and will not comment further on the staff suspicions. It declined, to MediaRoom, to rule out, or rule in, AI.
But if the bullet point error was generated by AI, and that error led to the Media Council upholding a complaint that its accuracy principle was breached, it would be a first.
The council has not previously had to rule on AI tools' contributions to NZ journalism. Whether in this case it needed to know if First Look AI had been part of the process before the writings of the digital producer is now moot.
Either way, the fact was wrongly highlighted in the summary and the Herald did correct it two months after publication when it finally worked out it was Herald and not RNZ bullet points containing the error.
For the record, this is what the Media Council said on the breach: 'The original article conflated the ferry contract with the large increase in cost of the port upgrade work required. We agree with the complainant that the article incorrectly attributed the two elements as both having caused the blowout.
'The NZ Herald has unfortunately picked up and emphasised in some of the bullet points the erroneous report of a ferry cost blowout. It has failed promptly to correct the obvious errors even when they were immediately pointed out.
'The Media Council is not convinced that persisting with such an obvious error is justified by NZ Herald's reliance on the argument that it could make no changes to syndicated articles; and its confusion over authorship of the bullet points.
'The errors spotted by the complainant were added by the NZ Herald and were its responsibility. Once these errors were conclusively established, the NZ Herald had an obligation to correct such errors by promptly publishing a correction so that the NZ Herald's readers understood there had been a mistake.'
Why Eerik the happy visitor disappeared
Auckland Mayor Wayne Brown didn't like a video ad promoting Auckland and it turns out that was pretty much enough to sink it, despite $740,000 having been spent creating it for possible future uses.
The 'Your Happy Auckland Guide' advertising campaign commissioned by development and promotions agency Tātaki Auckland Unlimited included video stories of Eerik from Finland, the happiest country on Earth, extolling the city's virtues and ran briefly last winter.
It aimed to improve people's views of Auckland, and particularly the central city. The campaign was partially funded by money from the central city targeted rate.
Newsroom published a story in July 2024 quoting Brown labelling it 'deeply embarrassing' and expensive. Although the ad campaign had been deliberately designed to be quirky and grab attention, the mayor was unhappy about so much having been spent 'on a joke'. He claimed the ad campaign ignored Auckland's vital selling points and showed all that was wrong about the system of council-controlled organisations.
Eerik and his escapades at Mission Bay, K Rd and around the city apparently reached up to two million potential viewers during the first phase of the campaign.
Eerik at Mission Bay.
But the mayor's reaction, followed by applications by groups under the Local Government Official Information and Meetings Act for details of the costs, soon doomed future plans for the happy Finn.
The whole Eerik affair has had to be documented by Tātaki Unlimited Auckland in a Business Value Proposition case study for the council's revenue, expenditure and value committee.
The paper defends the ads and approach, saying to take a 'safer, less creative route would not have achieved cut-through, would be lost in the crowd and wouldn't maximise return on media investment.'
Its case study shows that 'considering political criticism via the media, and the uncertainty of CCO reform through much of 2024, the decision was made to stop further activity phases' of the campaign.
Tātaki Unlimited Auckland had worked with the council's marketing team and City Centre Programmes through the first quarter of 2024.
Although it included details of the Eerik campaign to elected council members including the mayor in May 2024 in a regular newsletter, it had not personally briefed Brown until July (around the time the Newsroom story broke).
His reaction publicly, plus the official information requests over the spending, and the CCO reform process, contributed to the campaign ending abruptly.
The case study report says: 'In this instance, unrealised value' included 'a second phase of the project being withdrawn from agencies, with talent stood down … and plans with Finland for reciprocal social media and PR activity halted'.
Looking forward, a case study section on what could be improved highlights 'political engagement'. 'An early briefing to the mayor's office, lead councillor and/or chair of the CCO oversight committee may mitigate negative political feedback via the media and establish support for marketing activity in advance.'
It also says the ongoing reforms of CCOs – for example TAU lost its economic development function on July 1 to a new office within the council itself – could give clarity on the agency's 'remit, with political support, to promote Auckland and work at the top end of the sales funnel (i.e. sentiment)'.
The case study says advance audience testing would give 'confidence that the creative solution is the right one (or not)' but would add cost and time to projects.
It says the campaign was a success while it lasted, 'lifting sentiment towards Auckland'.
'Those who saw activity rated Auckland more favourably and were more likely to recommend Auckland as a place to visit with all measured perceptions scoring higher.
'Sixty percent took action and 87 percent took away key messages.'
But it appears Mayor Brown was an important member of the 13 percent who did not.
The 2025 domestic tourism campaign for autumn/winter, fully funded by $400,000 from the city centre targeted rate, is called 'It's on in Auckland' and plays into stereotypes about Aucklanders.
The 2025 version of the autumn/winter domestic tourism promotion for Auckland.
'With tongue-in-cheek headlines and vivid imagery, the campaign sets out to surprise and delight,' TAU's press release says. 'Featured creative includes:
'You don't have to be a food snob to eat like one'
'Sure, it can get a little crowded here' (accompanied by a buzzing concert crowd)
'This place is full of exhibitionists' (a nod to a lively art scene)
'Of course there's drama in the big city' (with an image of an aerialist showing pure theatrical flair).
For the record, the 2025 iteration was reviewed and approved by the mayor before launch in May via out-of-home (billboard) and social and digital channels. A second wave is proposed but not yet confirmed.
In future, the new economic development office at the council, led by former TAU senior executive Pam Ford, will 'lead the destination strategy work in collaboration with Tātaki Auckland Unlimited', TAU says.