ABC FOI 201920 019 Decision.pdf

6 March 2020

Mr Steve Smith

E) xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Smith,

FOI REQUEST – REFERENCE NUMBER ABC FOI 201920-019

I refer your request for access to documents under the Freedom of Information Act 1982 (the FOI Act) in your
email of 30 August 2019. You sought access to the following:

“In relation to Gavin Morris’s comments in the below article…all documents including messaging service
messages relating to Mr Morris being told to leave the AFP search warrant on 5 July 2019. Secondly…all
documents relating to the ‘extensive training of journalists involved in investigative or research based
journalism’ as divulged by Mr Morris in the linked article: https://mediaweek.com.au/morning-report-
archive/august-29-2019/#”.

We confirm a reasonable timeframe for documents was required in order to process this request, as the ABC
is constantly engaged in editorial and journalistic training. On 2 October 2019 a timeframe of “the AFP raid (5
June 2019) to the date of your FOI request (30 August 2019)” was put to you, and you did not object.

On 16 January 2020, you clarified that in relation to your second point of request, you were seeking access to
any training materials and lists of training attendees, rather than any and every email or document related to
the scope of that part.

Background

Please note that the ABC publishes details of staff training and attendee analysis each year in the ABC Annual
Report. This includes a separate section on Editorial training. The Reports are available at the link below:
https://about.abc.net.au/how-the-abc-is-run/reports-and-publications/.

The ABC’s Editorial Policies are available at https://edpols.abc.net.au/.

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. Following is my decision in relation to your request.

Locating and identifying documents

Reasonable steps have been taken to identify and locate documents that fall within the scope of your
request. The search for these documents involved contacting the Director of ABC News, Analysis and
Investigations (Gaven Morris), the ABC Editorial Director, and the ABC Learning & Development Consultant.

As a result of this search, 7 documents were found to be within the scope of your request.

Material taken into account

In making my decision I have had regard to:

•  the terms of your request
•  the content of the documents 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

With regard to part 1 of your request, access is refused.

With regard to part 2 of your request, access is granted to 3 documents. Access is granted in part to 4
documents.

My reasons for refusal of access are provided below.

Redactions in released documents

Section 22 of the FOI Act allows access to be granted to an edited copy of a document if it is reasonably
practicable to remove irrelevant or exempt material. Accordingly, documents to which access has been
granted have had redactions applied in order to remove material that is irrelevant to the scope of your
request (for example, outside the timeframe) or material that has been found to be exempt under the
FOI Act, so that the larger document may be released to you.
Reasons for decision – access refusal
In relation to part 1 of your request: “…all documents including messaging service messages relating to
Mr Morris being told to leave the AFP search warrant on 5 July 2019”

Section 24A – documents do not exist
Under section 24A of the FOI Act, the ABC may refuse a request for access if all reasonable steps have
been taken to find a document and the ABC is satisfied that the document does not exist. With regard to
the first point of your request, I consider that all reasonable steps have been taken to locate relevant
documents. I am further satisfied that the requested documents do not exist and therefore access to
them is refused pursuant to section 24A of the FOI Act.
In relation to part 2 of your request: “…[training materials and lists of training attendees] relating to the
‘extensive training of journalists involved in investigative or research based journalism’ as divulged by Mr
Morris in the linked article”

Section 42 – legal professional privilege
Access to parts of Document 2 is refused under section 42 of the FOI Act. Section 42 exempts from
disclosure material that would be privileged from production in legal proceedings on the ground of legal
professional privilege.

The Guidelines explain at [5.129]:

“At common law, determining whether a communication is privileged requires a consideration of:
•  whether there is a legal adviser-client relationship
•  whether the communication was for the purpose of giving or receiving legal advice, or use in
connection with actual or anticipated litigation
•  whether the advice given is independent
•  whether the advice given is confidential.”
I am satisfied that the common law test for whether legal professional privilege exists has been met in
each case of exemption here.

The relevant parts of Documents 2 contain the provision of advice by ABC Legal practitioners in their
role as independent advisors to the ABC. These parts of the documents are considered confidential and
privileged, and the ABC has not waived that privilege. I consider that in this case, the parts of the
documents to which you have been refused access were created for the dominant purpose of giving or
receiving legal advice and thus attracts legal professional privilege.

Those parts are therefore exempt from release under section 42 of the FOI Act, and access to them is
refused.

Public interest conditional exemption – section 47F (personal privacy)

Access to parts of Documents 2 and 4–6 is refused on the basis that I have found those parts to contain
information that is conditionally exempt under section 47F of the FOI Act; that is, that providing access
would constitute an unreasonable disclosure of personal information.

In making that decision I have considered firstly whether the documents contain personal information,
and secondly whether it would be unreasonable to disclose that information. In my view, each of the
elements of the exemption in section 47F are clearly met.

The information satisfies the definition of ‘personal information’ which is set out in paragraph 6.120 of
the Guidelines as follows:

“…personal information:

•
is information about an identified individual or an individual who is reasonably identifiable
•
says something about a person
•
may be opinion
•
may be true or untrue
•
may be recorded in material form or not.”

The documents contain the personal information of various ABC employees that attended the training
relevant to the matter described in your request. The individuals are identified by name and the
personal information is shown as directly relating to them.

Secondly, I have considered whether it would be unreasonable to disclose the personal information
contained in the documents. I have had regard to the factors listed in section 47F(2), in particular:

a)  the extent to which the information is well known
b)  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
c)  the availability of the information from publicly accessible sources.

The personal information in the Documents 4–7 is not well known, nor known to be connected with the
identified individuals outside a small group, nor is it available from publicly accessible sources.
Further, in circumstances where hundreds of ABC employees are listed in the documents, consultation
with each employee as to their views on release of their personal information would be an
unreasonable diversion of ABC resources. Without consultation, I cannot be assured that release of the
information may not cause stress or other detriment to a person.

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: “…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 protection the personal privacy of a third
party...”.

In this case, I consider that the information of value to the public interest has been disclosed via the
provision of the released information. With regard to the material redacted under section 47F, I have
found the public interest in the protection of an individual’s personal privacy outweighs the public
interest in disclosure of that information.

I have found that the parts of Documents 4–7 to which access is refused under section 47F of the FOI
Act contain personal information and that it would be unreasonable to disclose that information at this
time.

Public interest test

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 section 11B of the FOI Act which favour disclosure, specifically
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.

I consider that the primary factor favouring disclosure would be that disclosure of all material would
broadly promote the objects of the FOI Act.

The released documents have personal information, not ABC administrative and operational
information, redacted from them. The public interest is served by the ABC’s open disclosure of the
majority of information to which it has provided access on this occasion. The information I have found
to be conditionally exempt under section 47F of the FOI Act is not of serious concern or benefit to the
public, nor related to matters of the public’s common concern (the Guidelines [6.5]). I have found the
public interest in maintaining an individual’s personal privacy outweighs any factor that would make
that non-disclosure contrary to the public interest.

I am satisfied that, on balance, it would be contrary to the public interest to disclose the relevant
information contained in the redacted parts of Documents 4–7 to which access has been refused under
section 47F of the FOI Act.

Review rights

You have rights in relation to this decision. Those rights are set out in Annexure A to this decision.

Yours sincerely,

Pamela Longstaff
ABC Company Secretary & FOI Coordinator
xxx.xxx@xxx.xxx.xx

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
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 in writing to the following address:
Office of the Australian Information Commissioner
GPO Box 5218
Sydney NSW 2001