18 September 2025
Mr Christian Otieno
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Otieno
STATEMENT OF REASONS – ABC FOI 202526-003
I refer to your email sent Tuesday 15 July 2025 seeking access under the
Freedom of
Information Act (Cth) 1982 (the
FOI Act) to:
…An interview with anti-genocide activist Nasser Mashni, broadcast on the 26^th [of May
2025], was removed, as was an article based on the interview, on the orders of the zionists. The
URLs for the interview and the article based on it are as fol ows:
[1
]https://www.abc.net.au/news/2025-05-26/pms-gaza-comments-too-late-says-
advocate/105338640
[2
]https://iview.abc.net.au/show/abc-news-stories/series/0/video/NEWS2025105338640
Please disclose:
* [1] all communications regarding the video and/or article from external parties and
from the ABC to external parties, between 2025-05-25 and 2025-05-36 (including those
dates)
* [2] all communications within the ABC regarding the video and article up to the point
on 2025-05-26 when these were removed
* [3] all communications within the ABC that lead to the subsequent statement made to
Daanyal Saeed of Crikey about the removal of the video and article
On Tuesday 15 July 2025, the ABC emailed you to confirm the date range specified in
point 1 of your scope and to suggest which parts of the ABC may be appropriate to
search for documents.
You replied with the amended date as per the below:
* [1] all communications regarding the video and/or article from external parties and
from the ABC to external parties, between 2025-05-25 and 2025-05-27 (including those
dates)
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 |
Email: xxx.xxx@xxx.xxx.xx
[2] all communications within the ABC regarding the video and article up to the point on
2025-05-26 when these were removed
[3] all communications within the ABC that lead to the subsequent statement made to
Daanyal Saeed of Crikey about the removal of the video and article
I am happy to restrict the search to the ABC News and Communications teams and the
ABC board.
As notified to you by email on Tuesday 12 August 2025, the ABC was required to consult
with third parties, such that a decision was due on your request by Monday
15
September 2025, under s 15(6) of the FOI Act.
The ABC emailed you on Wednesday 9 September 2025, to seek a brief extension of time
under s 15AA of the FOI Act until Friday 19 September 2025, however the ABC did not
receive a reply from you about the extra processing time requested.
As a decision was not made by the statutory due date, under s 15AC of the FOI Act the
decision became a deemed access refusal decision on Monday
15 September 2025. The
ABC had hoped to agree the extension of time with you to avoid the deemed decision.
The ABC provides this statement of reasons to outline the decision I would have made
had a decision been issued within the original statutory timeframe.
Authorisation
I am authorised by the Managing Director of the ABC to make decisions about FOI
requests under s 23 of the FOI Act.
Purported Decision
I have identified 3 documents that answer the scope of your request -
Documents 1 to 3.
These documents are described in
Schedule 1, attached.
Had a made a decision within the statutory timeframe, I would have granted access to
Documents 1 to 3 in part
.
Documents 1 to 3 were located within the News and Communications teams. Members
of the ABC Board located no documents that fell within the scope of your request.
Under s 24A of the FOI Act access is considered to be refused to documents that did not
exist.
Under s 7(2) of the FOI Act, Schedule 2 Part II refers, the ABC as an agency is exempt
from the operation of the FOI Act in relation to its program material. Some documents
located in response to your request were program material. The ABC is not required to
take any action in relation to these documents under FOI (refer pages 5 and 6 of this
letter).
Material taken into account
In making my decision I have considered:
• the scope of your request
• the content of the document/s requested
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• the FOI Act
• the guidelines issued by the Office of the Australian Information Commissioner
under s 93A of the FOI Act (
the Guidelines)
• relevant case law, and
• responses to consultation undertaken with third parties.
Locating and identifying documents
The search for documents included approaching the ABC Board, the Communications
team and the News team.
I consider all reasonable steps were taken to identify and locate relevant documents
that answer your request. I am satisfied that the searches conducted were thorough
and all reasonable steps have been taken to locate the documents relevant to your
request.
I have excluded duplicates of email chains (or annexures if applicable), where an earlier
part of an email or attachment is replicated in a longer email chain, such that a decision
is made on one version only.
Statement of reasons
Third Party Consultation
The ABC consulted with parties listed in
Documents 2 and 3 to seek their views on the
release of the line of information pertaining to their engagement under freedom of
information (
FOI).
For the lines in the relevant documents that have no redactions, the parties consented
to the release of this information under FOI, and it is my view that it is reasonable the
release this information based on this consent. I otherwise have released inform that
does not include direct contact details of these third parties, as explained below under
s 47F reasoning.
s 24A – no documents
Section 24A of the FOI Act states that an agency may refuse a request for access to a
document when all reasonable steps have been taken to find a document, and it is
satisfied that the document either cannot be found or does not exist.
I confirm that electronic searches were undertaken by individual members of the ABC
Board including the Managing Director’s office. The ABC Board members separately
advised us that no documents were located as falling within scope of your request.
In accordance with s 24A(1) of the FOI Act, access is considered to be refused on the
basis I am satisfied that:
1. all reasonable searches have been conducted, and
2. no relevant documents could be found, or exist.
s 47F – Personal Privacy – conditionally exempt
The Guidelines at paragraph 6.123 defines personal information as including
“
information or an opinion about an identified individual, or an individual who is
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reasonably identifiable” which I take to include a person’s name, and other identifying
information, such as contact details, opinion, or income.
Section 47F of the FOI Act has been applied in circumstances where I have decided
disclosure includes information about an identified individual, and that individual was
either not consulted, or they were consulted and did not consent to disclosure.
The Guidelines, at paragraphs 6.135 and 6.137, articulate that the personal privacy
exemption is designed to prevent the unreasonable disclosure of personal information.
The test of ‘unreasonableness’ implies a need to balance the public interest in
disclosure of government-held information and the private interest in the privacy of
individuals.
In considering whether release of the personal information contained in the documents
is unreasonable, I have considered the following factors in accordance with s 47F(2),
including:
• the extent to which the information is well known;
• whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the documents;
• the availability of the information from publicly accessible sources;
• the current relevance of the information; and
• the circumstances in which the information was obtained and any expectation of
confidentiality.
In determining whether disclosing parts of the document would involve an
unreasonable disclosure of personal information, I have had consideration of the
following factors:
• the nature, age and current relevance of the information;
• any detriment that disclosure may cause to the identifiable person;
• any opposition to disclosure expressed by that person;
• the circumstances in which the information was obtained;
• the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information once released;
• whether disclosure might advance government transparency and integrity.
The documents concern personal information of individuals which is private. The
individuals hold a reasonable expectation that this information would not be disclosed
under FOI and have not provided their consent. In my view, the elements of the
exemption in s 47F are met.
In the circumstances, I have found the protection of the relevant individuals’ personal
privacy of their personal information outweighs any public interest in disclosure of that
information.
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link to page 5 link to page 5 link to page 5 link to page 5
I am satisfied that granting access to the limited direct contact information would be
an unreasonable invasion of the privacy of the individuals involved, and that granting
access to the conditionally exempt material in the documents would, on balance, be
contrary to the public interest.
Program material s 7(2) – exempt agencies in respect of particular documents
Some of the documents located were the ABC’s program material and is refused on the
basis it is not subject to the FOI Act.
Section 7(2) of the FOI Act provides that (my underlining):
The persons, bodies and Departments specified in Part II of Schedule 2 are
exempt from the operation of this Act in relation to the documents referred to in
that Schedule in relation to them.
Part II of Schedule 2 lists the ABC in
“. .in relation to its program material and
datacasting content”. 'Program material' is not defined in the FOI Act, however it has
been the subject of judicial consideration.
The Guidelines
1 point to
Australian Broadcasting Corporation and Herald and Weekly
Times Pty Limited 2 (
ABC and HWT), where the AAT held that program material means a
document
‘which is the program and all versions of the whole or any part of the
program, any transmission broadcast or publication of the program, and includes a
document of any content or form embodied in the program and any document
acquired or created for the purpose of creating the program, whether or not
incorporated into the complete program.’” (my underlining).
The ABC’s program material includes content published on any platform, from a
television episode to a radio show to a related online article on the ABC’s website. It
includes the ABC’s text line, editorial decision making and other program making
elements, pre- and post- broadcast material, including rundowns, interview records,
complaints and guidance about coverage. It also includes complaints about the ABC’s
publications and broadcasts and related documents, or investigations related to
content.
Reasonably direct relationship to program material
The Guidelines
3 adopt the ‘reasonably direct relationship’ test in ABC and HWT when it
comes to documents ‘
in relation to’ program material, i.e. that the ABC exemption
applies to documents comprising program material as well as documents which have a
reasonably direct relationship with that program material. The Guidelines contrast
‘
reasonably direct’ with a connection that is “
indirect, remote or tenuous”.
4 (my
underlining).
1 Para 2.19 of t
he FOI Guidelines April 2025 Compilation
2Australian Broadcasting Corporation and Herald and Weekly Times Pty Limited [2012]
AATA 914 at paragraph 57.
3 Para 2.19 of th
e FOI Guidelines April 2025 Compilation
4 Para 2.19 of
FOI Guidelines April 2025 Compilation and para 99 o
f ABC and HWT.
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The document/s directly relate to substantive and published content. They have a clear
direct relationship with content that was broadcast and published. This is the ABC’s
program material which is exempt from the operation of the FOI Act under s 7(2).
Post-broadcast material
ABC and HWT [57] says program material “. .
would include a document created after a
program is broadcast. Such documents might include. .internet pages and documents
produced by the ABC or incorporated in its records directly concerning the substantive
content of the broadcast program”. This clearly includes documents that are reviewing
or investigating the ABC’s content or decision-making about content, whether this is an
investigation undertaken by the ABC Ombudsman or otherwise.
As the documents falls outside of the FOI regime, the ABC is not required to take any
further action under FOI in relation to the document as it has a direct relationship with
the ABC’s content.
The program material exemption is not subject to a public interest test.
Administrative release of certain documents
As the statutory deadline has passed, the ABC has decided to provide
3 documents in
part as administrative release outside of FOI. A schedule of these administratively
released documents is included on page 7 of this letter, for convenience. The informally
released documents are
enclosed with this letter in a zip folder.
Review rights
Your review rights are set out in
Annexure A.
Yours sincerely
Ali Edwards
Head of Rights Management & FOI Decision Maker
xxx.xxx@xxx.xxx.xx
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Schedule 1 – Document Schedule – FOI 202526-003
Access
No.
Date
Description
Page/s
grant
Exemption
decision
section/s
01
27 May
Email chain
3
Part
s 7(2) - program
2025
material
02
27 to 28
Email chain with Crikey
3
Part
47F – personal
May 2025
privacy
03
27 to 28
Email chain with
1
Part
47F – personal
May 2025
Lamestream
privacy
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Annexure A – Your Review Rights
If you are dissatisfied with this decision you can apply for Internal Review of the decision by the
ABC, or Information Commissioner (IC) Review. You do not have to apply for Internal Review
before seeking IC Review.
APPLICATION FOR INTERNAL REVIEW BY THE ABC
You have the right to apply for an internal review of the decision refusing to grant access to
documents. If you apply for an internal review, a delegate who is not the person who made the
initial decision will undertake a review and make a fresh decision.
You must apply in writing for an internal review of the decision
within 30 days of receipt of this
letter. No particular form is required, although it helps if you set out the reasons for review in
your application and include the decision under review.
Application for a review of the original decision should be emailed to:
xxx.xxx@xxx.xxx.xx
or posted to:
FOI team
ABC Legal
GPO Box 9994
SYDNEY NSW 2001
APPLICATION FOR INFORMATION COMMISSIONER (IC) REVIEW
Alternatively, you have the right to apply for a review by the Information Commissioner of the
decision refusing to grant access to documents. Your application must:
• be in writing;
• be made
within 60 days of receipt of this letter (the original decision or the internal
review decision, or a deemed refusal decision);
• give details of how notices may be sent to you (eg. an email address); and
• include a copy of the decision for which a review sought.
Please refer to the OAIC website the IC review process page for further information including the
online form for applying for IC review:
https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-
of-information-reviews
Alternatively, an application for IC Review can be emailed to:
xxxxx@xxxx.xxx.xx or
posted to:
Director of FOI Dispute Resolution
OAIC GPO Box 5218
Sydney NSW 2001
The Information Commissioner has a discretion not to undertake a review.
COMPLAINTS TO THE INFORMATION COMMISSIONER
You may complain to the Information Commissioner about action taken by the ABC in the
performance of functions, or exercise of powers, under the FOI Act. The Information
Commissioner may make inquiries for the purpose of determining whether or not to investigate
a complaint.
Complaints can be made in writing to:
OAIC - GPO Box 5218
Sydney NSW 2001
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