8 February 2018
Dominic Paul
By email:
xxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Paul
Freedom of Information Act request 2017-014 – Internal review
I refer to your email dated 23 August 2017 requesting internal review of the decision by the ABC’s
Deputy General Counsel, Michael Martin, who has authority to make decisions regarding requests
under the
Freedom of Information Act 1982 (Cth) (
FOI Act). Your request related to a previous
application by you for information via email dated 12 May 2017.
Background
I understand that via email on 12 May 2017 you requested access to:
“Documents, eg. external work request or invoices, pertaining to the total cost to produce
‘Searching for Trough Man’, which went to air on the RN Earshot program at 11am on 9 May
2017” (
Documents)
I understand that no amendments or clarifications were made to this original request. I also
understand that three documents were identified as the Documents and I have considered each of
these, as described below.
As you are aware, in a letter to you dated 23 August 2017, Mr Martin made a decision regarding your
request, and determined that the Documents were exempt from the operation of the FOI Act and
access to the Documents will therefore not be provided (
Original Decision).
I am authorised by the Managing Director, under section 23 of the FOI Act, to make decisions on
requests for internal review. I have reviewed your request in accordance with section 24 of the FOI
Act and set out my decision below.
Materials considered
• Letter dated 23 August 2017 from Michael Martin to Dominic Paul regarding Original Decision;
• Contract dated 19 December 2016 (referred to as ‘Document 1’ in the Original Decision)
• Invoice dated 20 December 2016 (referred to as ‘Document 2’ in the Original Decision)
• Undated invoice (referred to as ‘Document 3’ in the Original Decision)
• Relevant sections of the
Freedom of Information Act 1982 (Cth);
•
Australian Broadcasting Corporation and Herald and Weekly Times Pty Limited and Anor
[2012] AATA 914 [57]
• Letter from the ABC dated 3 July 2017 to the provider of Document 2 providing opportunity to
make submission regarding release of information about business affairs
• Letter from the ABC dated 3 July 2017 to the provider of Document 3 providing opportunity to
make submission regarding release of information about business affairs
• Letter from the provider of Document 2 dated 1 July 2017
• Letter from the provider of Document 3 dated 3 July 2017
Decision and reasons
Having reviewed your request, I have decided to affirm the Original Decision that the Documents are
exempt from the operation of the FOI Act.
My decision-making process took the following path:
1. Right to access
First, I considered the general right to access provided in section 11 of the FOI Act which is
that:
“(1) Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to: (a) a document of an agency, other than an exempt document;...”
2. Consideration of whether the Documents are exempt documents
Section 7(2) of the FOI Act provides that:
‘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.’
Division I of Part II of Schedule 2 is headed
‘Agencies exempt in respect of particular
documents’ and provides, relevantly:
‘Australian Broadcasting Corporation, in relation to its program material and datacasting
material.’
3. Consideration of whether the Documents are ‘program material’ for the purposes of the
FOI Act.
I then considered the meaning of ‘program material’. Several decisions have considered the
meaning of these words specifically as they relate to the ABC. The Administrative Appeals
Tribunal has stated that program material means
‘any document acquired or created for the
purpose of creating the program.’i
The RN Earshot program ‘Searching for Trough Man’ constitutes a program for the purposes
of the FOI Act. The Documents fall within the meaning of ‘program material’, as explained in
the above decision, because they were ‘created’ for the purpose of ‘creating’ ‘Searching for
Trough Man’.
2
On this basis, I have concluded that the Documents are exempt documents for the purposes
of the FOI Act and access will therefore not be provided to the Documents.
4. In the alternative, the Documents are conditionally exempt under s47G of the FOI Act
I note that in the Original Decision Mr Martin decided that if the Documents were not exempt
from the operation of the FOI Act, access to the Documents was refused on the basis that
they were conditionally exempt because they relate to the business affairs of third parties who
would be unreasonably affected by disclosure. I consider the decision that the Documents
are exempt because they are ‘program material’ is a clear one and does not warrant further
consideration. However, given Mr Martin made a decision about the Documents ‘in the
alternative’ I have also considered this.
In the course of making the Original Decision, the ABC wrote to and received responses from
relevant third parties and asked for comment on the release of the Documents relevant to
them. Both third parties gave reasons why they did not consent to the release of the
Documents relevant to them and reasons why disclosure would have an unreasonable and
adverse affect on the business or professional affairs of these entities (and their personal
privacy). I consider that release of the Documents would have an unreasonable and adverse
affect on the business affairs of the relevant third parties. On this basis I consider that, in the
alternative the Documents are conditionally exempt under section 47G of the FOI Act.
When a document is determined to be conditionally exempt, the FOI Act requires a decision
maker to apply the public interest test – by weighing the factors favouring disclosure against
the factors against disclosure.
I have considered the public interest in releasing the Documents. The Guidelines to the FOI
Act set out factors favouring disclosure and factors against disclosure. The Documents are
invoices and a short contract and are not, in my view, of serious concern or benefit to the
public given the amounts of money involved and the services provided. The factor against
disclosure is that disclosure could reasonably be expected to harm the interests of an
individual (the third parties) and could reasonably be expected to prejudice the management
function of an agency (by releasing the contract) and could reasonably be expected to
prejudice the protection of an individual’s right to privacy (the third parties). On balance, I do
not consider that the public interest in releasing the Documents outweighs the factors against
disclosure.
Right of review
If you are dissatisfied with this decision, you can apply for review by the Australian Information
Commissioner, whose contact details are:
Office of the Australian Information Commissioner
GPO Box 2999 Canberra ACT 2601 (or) GPO Box 5218 Sydney NSW 2001
Tel: 1300 363 992 Fax: 02 9284 9666
Email
: xxxxxxxxx@xxxx.xxx.xx
Website:
www.oaic.gov.au
3
In making your application to the Information Commissioner, you need to provide an address for
notices to be sent (this can be an email address) and a copy of this decision. You may also wish to
inform the Information Commissioner of the reasons for seeking review.
Yours sincerely,
Rebekah Donaldson
FOI Internal Reviewer, authorised pursuant to s 23 FOI Act
i
Australian Broadcasting Corporation and Herald and Weekly Times Pty Limited and Anor [2012]
AATA 914 [57]
4
