11 April 2019
Mr Jonathan Sequeira
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Sequeira
ABC FOI REQUEST – REFERENCE NUMBER 201819-047
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 documents, including emails, sent or received between 1 August 2018 and 1 October 2018
inclusive, relating to the drafting and release of the ABC’s public statement provided to
Australian media (on approximately 25 August 2018) explaining the ABC’s decision not to
acquire Descent into the Maelstrom – The Radio Birdman Story
for broadcast.
This includes but is not limited to original drafts, authorising officers' correspondence and fol ow
up correspondence.
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, 22 documents were identified which fal within the scope of your request
(see
Appendix A).
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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 part to Documents 1, 2, 8, 15, 16, and 19–21.
Access is refused in full to Documents 3–7, 9–14, 17, 18, and 22.
My reasons for refusal of access are provided below in the section entitled
Reasons for Decision.
Release of documents
You have chosen to exclude from the scope of your request al documents, correspondence and emails
sent by Jonathan Sequeira to the ABC, or received by Jonathan Sequeira from the ABC. Where this type
of correspondence exists as part of a larger email chain, or as attachments to an email, I have kept in
that material in order to assess the document as a whole, even in instances where the document has
not been released to you.
Section 22
Section 22 of the FOI Act allows access to be granted to an edited copy of a document if it is reasonably
practicable to create such a document. Accordingly, redactions have been applied to documents
containing information I have found to be out of scope of your request, or exempt under the FOI Act, in
order that the parts of the documents containing the information to which I have decided to provide
access can be released to you in full.
Reasons for Decision
Section 7(2) – program material
Access to parts of Documents 1–7 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 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.”
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
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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. The documentary program
Descent into the
Maelstrom – The Radio Birdman Story 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 1–7 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) 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 in Documents 1–7 I have found to be ‘related to program material’ comprises
discussions related to the decision whether or not to broadcast
Descent into the Maelstrom – The Radio
Birdman Story, including the program’s relative merits, potential positioning, and other considerations
normally undertaken by ABC acquisitions staff in order to establish content for broadcast on ABC
platforms. The parts of the documents containing this information are exempt from the operation of the
FOI Act under section 7(2).
Access refusal – public interest conditional exemption – section 47C (deliberative processes)
Access to Documents 9–14 and 17–18, and parts of Documents 3–7 and 19–22 is refused on the basis
that those documents or parts of documents 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”
1 The Guidelines [2.16]; [2012] AATA 914 [57]
2 [2006] FCA 964
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.
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The documents to which access is refused under section 47C reflect internal consultation taken with a
view to providing statements to the media and others in relation to the ABC’s decision whether or not to
broadcast the documentary 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 3–7, 9–14, and 17–22 contain deliberative
matter, and they are therefore conditionally exempt from disclosure in relation to that matter 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 47E(c) (certain operations – personnel
management)
Access to parts of Documents 21 and 22 is refused on the basis that those parts contain information
about the roles and duties of ABC staff and the release of that information would have a substantial
adverse effect on the ABC’s management or assessment of personnel.
In making my decision I have had regard to the Guidelines, in order to address the two necessary
elements of this exemption; namely, that:
• an effect would reasonably be expected fol owing disclosure
• the expected effect would be both substantial and adverse.
6
The information to which access is refused under section 47E(c) relates to the assessment of personnel
in a broad performance management context.
7 In my opinion, if information about the performance of
an ABC staff member or group of staff were released, other ABC employees would believe that
discussions about their personal performance – either about them, or with them, in a professional and
presumably confidential context – may be released publicly at any time. This would cause widespread
6 The Guidelines [6.113]
7 The Guidelines [6.114]
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concern in both an immediate and ongoing capacity. The ability of the ABC to manage its staff fairly,
with individuals’ dignity and mutual respect as priorities, would be compromised.
I am satisfied that Documents 21 and 22 contain information that, if released, would have a substantial
and adverse effect on the ABC’s management and assessment of its personnel.
My assessment of the public interest in relation to documents which I consider to be conditionally
exempt under section 47E(c) 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 Documents 1, 2, 8, 15, 16, 19 and 20 on the basis that those parts are
conditionally exempt under section 47F of the FOI Act: that is, that release of that material would
involve the unreasonable disclosure of personal information.
In making this 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, that says
something about them, whether the information or opinion is true or not, and whether the information
or opinion is recorded in a material form or not.
8
Documents 1, 2 and 20 contain personal information about ABC staff members, where that information
is directly connected to them by name. Documents 8, 15, 16, 19 and 20 contain the mobile phone
numbers of individuals, both internal and external to the ABC. The Guidelines state that, “Personal
information can include a person’s name, address, telephone number, date of birth, medical records,
bank account details, taxation information and signature.”
9 I am satisfied that the mobile phone
numbers in Documents 8, 15, 16, 19 and 20, and the information connecting individuals’ identities with
information about them in Documents 1, 2 and 20 are all examples of personal information for the
purposes of section 47F of the FOI Act.
Secondly, I have considered whether it would be unreasonable to disclose the personal information
contained in the documents described above. I have had regard to the factors listed in section 47F(2),
specifically 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
document, and the availability of the information from publicly accessible sources. On these matters, I
can confirm that none of the personal information in the documents is publicly available, nor is it known
to any but a smal group of people.
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 all 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...”.
8 The Guidelines [6.129]
9 The Guidelines [6.130]
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link to page 6
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 individuals whose personal information is revealed in Documents 1, 2 and 20 have not consented to
the release of this material; and it is clear to me in at least one case they would in fact contend its
release.
10 I consider it likely the individuals whose mobile phone numbers have been redacted from
Documents 8, 19 and 20 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 on some occasions, 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 Documents 1, 2, 8, 15, 16, 19 and
20 contain 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 conditional y 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.
The final versions of all media correspondence in relation to the ABC and the documentary program
Descent into the Maelstrom – The Radio Birdman Story have been released to you and also made
available to interested external parties. This information has been provided to contribute to public
discussions on the matter, and it makes a point of addressing the public expenditure issue.
Having regard to these considerations I am satisfied that at this time, access to the deliberative material
in Documents 3–7, 9–14, and 17–22 would, on balance, be contrary to the public interest. Accordingly,
the documents are exempt from disclosure.
10 The Guidelines [6.143]
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Certain operations of agencies – management of personnel (section 47E(c))
The ABC has undertakings with regard to its personnel management, not least of which relates to staff’s
confidence in the privacy and dignity of performance management proceedings, whether positive or
negative and in circumstances that are minor or more complex. Were the information I have found to be
conditional y exempt in Documents 21 and 22 of a nature that affected the ABC’s operations, funding, or
risk management, release might be in the public interest.
However, the information is none of those things. By contrast, the release of the information, brief
though it is,
would affect the ABC’s operations and its ability to conduct positive, open personnel
management processes with its staff. The ABC’s ability to conduct standard HR processes would be
compromised, staff concern would be raised and require response, and time – and public money –
would be lost.
I consider that, on balance, it would be against the public interest to release the personnel management
information in Documents 21 and 22, and access is therefore refused.
Personal privacy (section 47F)
I consider there is no public interest in the disclosure of the personal information in Documents 1, 2, 8,
15, 16, 19 and 20 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 the information would, by contrast, affect the
public interest in maintaining individuals’ privacy where that disclosure may cause harm to a person,
and/or would not add to the public discourse. Accordingly, on balance I am satisfied that the personal
information contained in the documents listed above is, in this instance, exempt from disclosure under
the FOI Act.
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
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Appendix A – Schedule of documents
Doc #
Description
Date
Pages
Decision
Access
1
Email thread between ABC and external party
16 July – 13 August 2018
3 granted
in part
Access
2
Email thread between ABC and external party
16 July – 24 August 2018
3 granted
in part
3
External email to ABC; internal ABC email thread
22 August 2018
2 Exempt
4
External email to ABC; internal ABC email thread
22 August 2018
2 Exempt
5
External email to ABC; internal ABC email thread
22 August 2018
2 Exempt
6
External email to ABC; internal ABC email thread,
with attachments
22 August 2018
2+3+5+3 Exempt
7
External email to ABC; internal ABC email thread
22 August 2018
2 Exempt
Access
8
External email to ABC; ABC email response
22 – 24 August 2018
2 granted
in part
9
Internal ABC email thread
23 August 2018
1 Exempt
10 Internal ABC email thread
23 August 2018
2 Exempt
11 Internal ABC email thread
23 August 2018
3 Exempt
12 Internal ABC email thread
23 – 24 August 2018
2 Exempt
13 Internal ABC email thread
23 – 24 August 2018
2 Exempt
14 External email to ABC; internal ABC email thread
24 August 2018
2 Exempt
Access
15 External email to ABC; ABC email response
24 August 2018
2 granted
in part
Access
16 Email thread between ABC and external party
24 August 2018
2 granted
in part
17 Internal ABC email thread
24 August 2018
4 Exempt
18 Internal ABC email thread
24 August 2018
2 Exempt
Access
19 Internal ABC email thread
24 August 2018
2 granted
in part
Access
20 Internal ABC email thread
24 August 2018
2 granted
in part
Access
21 Internal ABC email thread
25 August 2018
1 granted
in part
22 Internal ABC email thread
24 – 27 August 2018
3 Exempt
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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 will 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
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