26 March 2019
Mr Jonathan Sequeira
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Sequeira
ABC FOI REQUEST – REFERENCE NUMBER 201819-046
I refer to your request for access to documents under the
Freedom of Information Act 1982 (the
FOI Act)
in your email dated 12 December 2018. Specifical y, you sought access to the fol owing:
“…all correspondence and documents, including emails, sent or received from 10 August 2018 to
1 December 2018 inclusive, relating to The Honourable Anthony Albanese MP’s correspondence
(dated 10 August 2018) to David Anderson regarding the ABC’s decision not to acquire Descent
into the Maelstrom - The Radio Birdman Story, from or to any of the following people:
•
David Anderson
•
Rachael Nathan
•
Anthony Albanese MP
Excluded are documents, correspondence and emails sent by Jonathan Sequeira to the ABC, or
received by Jonathan Sequeira from the ABC.”
Authorisation
I am authorised by the Managing Director under section 23 of the FOI Act to make decisions in respect
of requests made under that Act. Fol owing is my decision in relation to your request.
Locating and identifying documents
Reasonable steps were taken to identify and locate al relevant documents. The search for documents
included contacting the ABC staff members listed in the request, who conducted searches to identify
any documents which might fal within the scope of the request.
As a result of those searches, 15 documents were identified which fal within the scope of your request
(see
Appendix A).
1453403_2
link to page 2 link to page 2
Material taken into account
In making my decision I have had regard to:
• the terms of your request
• the content of the document identified as relevant to your request
• the FOI Act
• guidelines issued by the Office of the Australian information Commissioner under section 93A
of the FOI Act (
the Guidelines).
Decision
Access is granted in full to Document 15 and in part to Document 1.
Access is refused in full to Documents 2–14.
My reasons for refusal of access are provided below.
Reasons for Decision
Section 7(2) – program material
Access to Document 3 and parts of Documents 1 and 11 is refused on the basis that they contain
‘program material’. The ABC is exempt from the operation of the FOI Act in relation to these documents.
Section 7(2) of the FOI Act provides that: “The persons, bodies and Departments specified in Part I 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.”
The ABC is listed in Part I of Schedule 2 “…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 point to
Australian Broadcasting Corporation and Herald and Weekly Times Pty Limited
(ABC and HWT), in which “the AAT held that program material includes ‘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 completed
program.’”
1
Documents that are sent to the ABC as program submissions, as well as any documents distributed
within the ABC that are directly related to those submissions, were created for the purpose of creating a
program for broadcast on one or more ABC platforms. Document 3 contains the type of information as
described above, in relation to a program that is clearly identified, being
Descent into the Maelstrom –
The Radio Birdman Story. The program was submitted to the ABC with a view to having it broadcast on
the ABC and any discussion relating to the program itself constitutes information falling under section
7(2) of the FOI Act.
The parts of Documents 3 and 11 to which access is refused under section 7(2) I have found to be
‘related to program material’. The Federal Court of Australia considered the scope of the section 7(2)
exclusion in
Australian Broadcasting Corporation v The University of Technology, Sydney2 (
ABC v UTS)
1 The Guidelines [2.16]; [2012] AATA 914 [57]
2 [2006] FCA 964
2
link to page 3 link to page 3 link to page 3
and held that the exemption also applies to ‘any document that relates to program material’. In that
case, the documents being sought related to documents relating to complaints made to the ABC,
including “internal files and correspondence, board minutes, investigation files and reports and
documents in relation to the complaints”. In
ABC and HWT the Administrative Appeals Tribunal
observed that if the Federal Court’s decision in
ABC v UTS is applied, the exemption also attaches to
documents having “a reasonably direct relationship” with program material.
The Guidelines summarise this case law and adopt the ‘reasonably direct relationship’ test in
ABC and
HWT.
3 I consider this the correct approach; i.e. that the ABC exemption applies to documents
comprising ‘program material’ in the sense described above, 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 I have taken the same approach.
The information I have found to be ‘related to program material’ comprises feedback or complaints
about ‘program material’ in relation to the ABC, that program being
Descent into the Maelstrom – The
Radio Birdman Story. The parts of Documents 1 and 11 containing that information are exempt from the
operation of the FOI Act under section 7(2).
I note that Document 15 and part of Document 1 have been released to you, though they also contain
program material for the purposes of the FOI Act. As the letter from Mr Albanese is already in the public
domain, this document and our response to it have been released to you on this occasion, in alignment
with the FOI Act objective of promoting transparency in government processes.
Access refusal – public interest conditional exemption – section 47C (deliberative processes)
Access to Documents 2, 4–10, 12–14 and part of Document 11 is refused on the basis that they are
conditional y exempt under section 47C of the FOI Act. In my view, disclosure of these documents under
the FOI Act would disclose matter in the nature of, or relating to, opinions, advice or recommendations
obtained, and consultation that has taken place, while, or for the purposes of, the deliberative processes
involved in the functions of the ABC.
Section 6.58 of the Guidelines describes a ‘deliberative process’ as an action which “…involves the
exercise of judgement in developing and making a selection from different options: ‘The action of
deliberating, in common understanding, involves the weighing up or evaluation of competing arguments
or considerations that may have a bearing upon one’s course of action. In short, the deliberative process
involved in the functions of an agency are its thinking processes—the processes of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.
’5”
The documents to which access is refused under section 47C reflect internal consultation taken with a
view to providing responses in relation to your and others’ correspondence with the ABC about the
program
Descent into the Maelstrom –
The Radio Birdman Story. The material either requests the
beginning of a consultative process or furthers that process with a view to reaching a resolution. The
information is not operational or purely factual, but rather reflects the steps involved in attaining those
resolutions.
I note that the deliberative processes exemption does not require a specific harm to result from
disclosure. Rather, the only consideration is whether the document includes content of a specific type,
namely deliberative matter. I am satisfied that Documents 2, 4–10, 12–14 and part of Document 11
3 The Guidelines [2.16]
4 The Guidelines [2.16]
5 See
Re JE Waterford and Department of Treasury (No 2) [1984] AATA 67. See
British American Tobacco Australia Ltd and
Australian Competition and Consumer Commission [2012] AICmr 19, [15]–[22]. See also
Carver and Fair Work Ombudsman [2011]
AICmr 5 in relation to code of conduct investigations.
3
contain deliberative matter, and they are therefore conditionally exempt from disclosure under section
47C of the FOI Act.
I note that access must general y be given to a conditional y exempt document unless (in the
circumstances) access to the document at the time would, on balance, be contrary to the public interest.
My assessment of the public interest in relation to documents which I consider to be conditionally
exempt under section 47C is set out below in the section entitled
Public interest.
Access refusal – public interest conditional exemption – section 47F (personal privacy)
Access is refused to parts of Document 1 on the basis that those parts are conditional y exempt under
section 47F of the FOI Act: that is, that release of that material would involve the unreasonable
disclosure of personal information about a person.
In making that decision I have considered whether the document contains personal information, and
whether it would be unreasonable to disclose that information. I have also had regard to the Guidelines.
In my view, each of the elements of the exemption in section 47F are met.
Firstly, the information satisfies the definition of ‘personal information’ in the FOI Act, being
“information or an opinion about an identified individual, or an individual who is reasonably identifiable,
whether the information or opinion is true or not, and whether the information or opinion is recorded in
a material form or not”.
Document 1 contains personal information about an individual in an external agency, where that
information is directly connected to them by name. It also contains the mobile phone number of a
person in an external agency. Paragraph 6.130 of the Guidelines states that, “Personal information can
include a person’s name, address, telephone number, date of birth, medical records, bank account
details, taxation information and signature.” I am satisfied that mobile phone numbers are personal
information for the purposes of section 47F.
Secondly, I have considered whether it would be unreasonable to disclose the personal information
contained in Document 1. I have had regard to the factors listed in section 47F(2), specifical y the extent
to which the information is wel 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 document, and the availability of
the information from publicly accessible sources.
In exploring the concept of ‘unreasonable’ disclosure, paragraph 6.139 of the Guidelines refers to the
AAT in
Re Chandra and Minister for Immigration and Ethnic Affairs: “...whether a disclosure is
‘unreasonable’ requires … a consideration of al the circumstances, including the nature of the
information that would be disclosed, the circumstances in which the information was obtained, the
likelihood of the information being information that the person concerned would not wish to have
disclosed without consent, and whether the information has any current relevance … it is also necessary
in my view to take into consideration the public interest recognised by the Act in the disclosure of
information … and to weigh that interest in the balance against the public interest in protecting the
personal privacy of a third party...”.
Paragraph 6.144 points to Heerey J in
Colakovski v Australian Telecommunications Corp: “...if the
information disclosure were of no demonstrable relevance to the affairs of government and was likely
to do no more than excite or satisfy the curiosity of people about the person whose personal affairs
were disclosed...disclosure would be unreasonable’.”
The personal information in Document 1 is not public, nor known to more than a small group of people.
I am informed that an individual whose personal information is contained in part of Document 1 has not
4
link to page 5
consented to the release of their personal information; by contrast, they contend its release.
6 I consider
it likely the individual whose mobile phone number has been redacted would have a reasonable
expectation that such information would not be disclosed. In both cases, the information is of no
demonstrable relevance to the affairs of government and may in one circumstance, in my view, cause
stress to a person to no end that serves the public discourse.
Having regard to the circumstances described above, I consider that Document 1 contains personal
information, and that disclosure of that information at this time would be unreasonable pursuant to
section 47F of the FOI Act.
Public interest
Section 11A(5) of the FOI Act requires the ABC to provide access to a conditionally exempt document
unless, in the circumstances, access to the document would, on balance, be contrary to the public
interest.
I have had regard to the factors set out in s11B of the FOI Act which favour disclosure, specifical y
whether disclosure would promote the objects of the FOI Act, inform debate on a matter of public
importance, promote effective oversight of public expenditure, or allow a person to access his or her
personal information.
Deliberative processes (section 47C)
I acknowledge there is public interest in how the national broadcaster makes decisions in relation to
public-facing content that concerns its programming or presenters, and in the editorial process at the
ABC in general. Transparency around the ABC’s decision-making promotes effective oversight of the
public money which funds the ABC’s operations.
At the same time the FOI Act evidences a strong policy intent not to expose deliberations around
program material, by making the ABC exempt from the operation of the Act in relation to that material.
The deliberations involved in this case all have a demonstrable, direct relationship with the nature and
scope of ABC Television’s program material, and where disclosure of that deliberative matter would
tend to undermine the policy objective behind section 7(2), I consider that a factor against disclosure.
There is further public interest in the ABC being able to confidential y manage its editorial concerns
independently; an interest reflected in and supported by the ABC Act.
Having regard to these considerations I am satisfied that at this time, access to the deliberative material
in Documents 2 and 4–14 would, on balance, be contrary to the public interest. Accordingly, the
documents are exempt from disclosure.
Personal privacy (s47F)
I consider there is no public interest in the disclosure of the personal information Document 1 as this is
not information to which you personally are seeking access (i.e. it is not your personal information, but
third parties’). Disclosure of this information would, by contrast, affect the public interest in maintaining
individuals’ privacy where that disclosure would not add to the public discourse. Accordingly, on balance
I am satisfied that the personal information contained in Document 1 is, in this instance, exempt from
disclosure under section 47F of the FOI Act.
6 The Guidelines [6.143]
5
Review rights
You have rights in relation to this decision. Those rights are set out at
Annexure A.
Yours sincerely,
Pamela Longstaff
ABC Company Secretary & FOI Coordinator
xxx.xxx@xxx.xxx.xx
6
Appendix A – Schedule of documents
#
Description
Date
Pages Decision
1
Email office of A Albanese to D Anderson, with
10 August 2018
1+1
Access granted
attachment
in part
2
Email thread
16 August 2018
1
Exempt
3
Email thread
16 August 2018
1
Exempt
4
Email thread
22 August 2018
1
Exempt
5
Email thread
23 August 2018
2
Exempt
6
Email thread
24 August 2018
2
Exempt
7
Email thread
24-27 August 2018
3
Exempt
8
Email thread
27 August 2018
1
Exempt
9
Email thread
27 August 2018
2
Exempt
10 Email thread
28 August 2018
3
Exempt
11 Email with attachment
29 August 2018
1+1
Exempt
12 Email thread
29-30 August 2018
2+1
Exempt
13 Email thread
30 August 2018
1+1
Exempt
14 Email thread
30 August 2018
2
Exempt
15 Email from R Nathan to office of A Albanese, with
30 August 2018
1+1
Access granted
attachment
7
Annexure A – Review rights
If you are dissatisfied with this decision you can apply for Internal or Information Commissioner (IC) Review. You do not have to
apply for Internal Review before seeking IC Review.
Application for Internal Review
You have the right to apply for an internal review of the decision refusing to grant access to documents in accordance with your
request. If you make an application for review, the Managing Director wil appoint an officer of the Corporation (not the person
who made the initial decision) to conduct a review and make a completely fresh decision on the merits of the case.
You must apply in writing for a review of the decision within 30 days of receipt of this letter. No particular form is required to
apply for review, although it would help if you set out the reasons for review in your application.
Application for a review of the decision should be addressed to:
The FOI Coordinator
ABC Legal Services
Building B Level 13
700 Harris Street
ULTIMO NSW 2007
Or sent to
: xxx.xxx@xxx.xxx.xx
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 in accordance with your request. Your application must:
•
be in writing
•
be made within 60 days of receipt of this letter
•
give details of how notices may be sent to you (for instance, by providing an email address)
•
include a copy of the decision for which a review sought.
You should be aware that the Information Commissioner has a discretion not to undertake a review (see Division 5, FOI Act).
Please refer to the OAIC website FOI review process page for further information and/or to access the online form for applying for
IC review:
https://www.oaic.gov.au/freedom-of-information/foi-review-process
Application for a review of the decision by the Information Commissioner should be addressed to:
Director of FOI Dispute Resolution
GPO Box 5218
Sydney NSW 2001
Or sent to
: xxxxxxxxx@xxxx.xxx.xx
Complaints to the Information Commissioner
You may complain to the Information Commissioner about any 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 should be made via the OAIC’s online for
m https://www.oaic.gov.au/freedom-of-information/foi-complaints, or to the
following address:
Office of the Australian Information Commissioner
GPO Box 5218
Sydney NSW 2001
8
