2 September 2025
Mr Zion Fallon
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Fallon
DECISION – ABC FOI 202526-006
I refer to your email sent Friday 18 July 2025 seeking access under the
Freedom of
Information Act (Cth) 1982 (the
FOI Act) to:
… a copy of all documents in the possession of Sam Clark, Dan Oakes, and/or the
Australian Broadcasting Corporation from the documents submitted to the ABC by
David McBride and published known as 'The Afghan Files'.
On Sunday 10 August 2025, by email, the timeframe for processing your request was
extended by agreement by 15 days under s 15AA of the FOI Act. Accordingly, a decision
on your request is due on Tuesday
2 September 2025.
Authorisation
I am authorised by the Managing Director of the ABC to make decisions about FOI
requests under s 23 of the FOI Act.
Decision
No documents were found to exist in relation to the scope of your request. Under s 24A
of the FOI Act, access is considered to be refused.
Material taken into account
In making my decision I have considered:
• the scope of your request
• the content of the document/s requested
• the FOI Act
• the guidelines issued by the Office of the Australian Information Commissioner
under s 93A of the FOI Act (
the Guidelines)
Locating and identifying documents
The search for documents included approaching the ABC News team, including the
named reporters.
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.
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 |
Email: xxx.xxx@xxx.xxx.xx
link to page 2
Reasons for decision
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.
On the basis of search enquiries made, I am satisfied that the ABC, and or the named
reporters, no longer hold documents that have been known publicly as ‘The Afghan
Files’
1.
In accordance with s 24A(1) of the FOI Act, I am satisfied that:
1. all reasonable searches have been conducted, and
2. no relevant documents could be found.
As such, access is considered to be refused under s 24A.
I note for completion that, had the ABC held the requested documents in 2025, I would
have refused access to these documents on the basis they are exempt under s 7(2) of
the FOI Act as the ABC’s program material. The program material exemption is not
subject to a public interest test. Documents that inform the ABC’s journalism are not
subject to an access request under FOI.
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
1 What the documents reveal about killings of unarmed Afghans - ABC News published 2017
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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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