BOP DHB’s burdensome secrets – by Karen Davis

Bay of Plenty District Health Board had an embarrassing gaffe last month with a Covid-19 vaccination pamphlet featuring some culturally insensitive images.

The DHB apologised at the time and one month later most locals would probably have forgotten about it.

One month also happens to be the processing time for a request for information under the Official Information Act. The Bay of Plenty Times made such a request in July and was refused the information sought. On 24 August the Times reported that “Details of how a controversial health board pamphlet came to exist will remain a secret until it has been fully investigated”.

Cringeworthy pamphlets are of little interest to our research, but what is interesting is that after the stink had blown over, especially with the nationwide lockdown motivating the population to go and get vaccinated, BOP DHB has gone out of its way to deny a BOP Times reporter a story that probably wouldn’t have got past the subeditor. Instead we got a story about the DHB being unnessessarily secretive.

Here’s another secret which happens to be poorly kept: BOP DHB v Shaw.

The parties are suing each other. Since late 2018, BOP DHB has sought a finding of contempt (of the ERA), penalties, and costs against cardiac physiologist Ana Shaw and her former employment advocate. The question of whether or not those proceedings are legitimate is before the Court of Appeal for Judicial Review.

In the meantime, Employment Court Judge Corkill has stayed BOP DHB’s application, pending the findings of the Court of Appeal. Paragraph 20 says:

[20] Finally, I recognise that the grant of any order of stay will lead to delay in the resolution of the issues in this Court. But this factor is not straightforward either. On the one hand, the plaintiffs are entitled to have the present litigation resolved, since it has been on foot for some time. On the other hand, the issues are important insofar as they may impact on the defendants, being proceedings involving potential punitive outcomes.

Judge Corkill does not say the defendants are entitled to know the legal basis of the "present litigation". Maybe that is because it has no basis? It's going into its third year and it appears nobody has managed to think up a reason.

Judge Smith of the Employment Court heard Ms Shaw’s two personal grievance claims in a three day hearing in June, and a decision on that is probably some months away.

In a large organisation such as BOP DHB, one might expect to see a couple of employment matters before the ERA or Employment Court at any given time. But the claims against Ms Shaw and her former advocate fall firmly into the SLAPP category therefore we have reported extensively on it. Our last three articles are dated 21 May, 4 May, and 23 December, 2020.

We have reported very little on the personal grievance claims because it’s a legitimate set of proceedings currently before the court and media should avoid being perceived as attempting to influence a judge. But what we can report is that during the personal grievance hearing in June, Leighton Associates’ articles on BOP DHB v Shaw (the SLAPP) were the subject of an almost comical attempt to weaponise those articles against Ms Shaw.

We take a dim view of any attempt to weaponise our articles against a vulnerable party and we sent a Cease and Desist letter to counsel for the DHB soon after. But for a public sector to aggressively demand the right to secrecy as we see from the SLAPP and more recently the stonewalling over a clumsily designed pamphlet, a concerning pattern is emerging at that particular organisation.

Perhaps a little more transparency would help.