15/01/2020
CONFIDENTIAL
Via Email
Email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear J D
RE: REVIEW OF FOI DECISION – REFERENCE NUMBER ABC FOI 201920-032
I refer to your email dated 17 December 2019 requesting an internal review of ABC FOI 201920-032
Decision. This was a decision by the ABC’s Company Secretary and FOI Coordinator, Pamela
Longstaff, who has authority to make decisions in respect of requests made under the
Freedom of
Information Act 1982 (Cth) (
FOI Act).
Background
Your information requested dated 10 November 2019 seeks:
[All documents containing] communications – including but not limited to email, postal
correspondence, text messages by any platform and notes of telephone conversations –
[between] ABC News management, and staff, officers or agents of the Minerals Council of
Australia and the Business Council of Australia, from June 1st 2019 to September 30th 2019
inclusive.
On 4 December 2019, Ms Longstaff identified documents within the scope of your request (
Identified
Documents), and made a decision in relation to your request. Ms Longstaff determined that the
documents were subject to an exemption, and not required to be released (
Original Decision).
In your email dated 17 December 2019, you requested an internal review of the Original Decision. In
a prior email dated 16 December 2019, you also specifically asked for a list of documents identified,
and the name of the program to which that material relates.
I am authorised by the Managing Director under section 23 of the FOI to make decisions on requests
for internal review. I have reviewed your request in accordance with section 54C of the FOI Act.
In undertaking my review, I have reviewed the Identified Documents, relevant sections of the FOI Act,
the FOI Guidelines published by the Office of the Australian Information Commissioner (
FOI
Guidelines), and relevant case law.
Decision
Having reviewed your request, I have decided to affirm the Original Decision that the Identified
Documents are not required to be released.
1
To the extent the documents fall within the scope of your request, they are not required to be released
because they fall within the “program material” exemption, with reasons set out further below.
Reasons
My starting point is the general right of access set out in section 11(1) of the FOI Act) that:
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to: a document of an agency, other than an exempt document…
I have then considered whether the ABC is exempt from the operation of the FOI Act in respect of the
Identified Documents. Under section 7(2) of the FOI Act:
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 1 of Part II of Schedule 2 headed “Agencies exempt in respect of particular documents”
provides, relevantly:
Australian Broadcasting Corporation, in relation to its program material and its datacasting
content
I have then considered the meaning of “program material” in this context.
It is well-accepted that “program material” itself is broadly defined, and means “the document (to the
extent it falls within the extended meaning of s 4 of the FOI Act) which is 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
A document can also fall within the “program material” exemption if it
relates to program material.2
A document “in relation to” program material must have a reasonably direct connection with the
program material,3rather than one that is “indirect, removed or tenuous”4.
It has also been established that, provided the relevant connection exists, there is no temporal
restriction on what can constitute "program material". Material produced prior to broadcast can still be
program material, even if that material is never aired. Similarly, documents produced after a broadcast
may also be program material.5
1
Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation [2012] AATA 914
at [57] per Kerr P and Britton
SM.
2
Australian Broadcasting Corporation v University of Technology, Sydney [2006] FCA 964; (2006) 154 FCR 209; approved in
Bell v Commonwealth Scientific and Industrial Research Organisation [2008] FCAFC 40 at [52].
3
Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation [2012] AATA 914 [73] - [74] per Kerr P and Britton
SM.
4
Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation [2012] AATA 914 at [99] per Kerr P and Britton
SM; FOI Guidelines [2.16].
5
Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation [2012] AATA 914 at [57] per Kerr P and Britton
SM.
2
The Identified Documents
The Identified Documents fall within the program material exemption. All documents are directly
concerned with, and expressly refer to, the content of a particular ABC broadcast program. In some
cases, the documents also refer to arrangements to be made in relation to creating content for a future
ABC program.
Response to your specific queries
You have requested a list of the documents found, and that the name of the ABC program be provided
to you. I decline to provides this information, as this is not required by the FOI Act or FOI Guidelines,
and doing so would disclose program material. You have also cited paragraph [3.22] of the FOI
Guidelines. I confirm I have had regard to the FOI Guidelines in arriving at my decision.
You have requested clarification as whether material created after a program was broadcast can be
exempted as “program material”. The answer to this question is yes; as stated above, there is no
temporal restriction on what can constitute "program material".
You have asked whether the material found was created for the purpose of creating the program. I
have provided a definition of “program material” above, and my reasons for concluding that the
Identified Documents constitute program material.
You have also made reference to a previous Decision (201819-038). That Decision is separate and
distinct from my consideration of the relevant issues in this matter.
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 5218 Sydney NSW 2001
Tel: 1300 363 992 Fax 02 9284 9666
Email: xxxxxxxxx@xxxx.xxx.xx
Website: www.oaic.gov.au
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
Jeanette Davis
A/Chief People Officer
FOI Internal Review, authorised pursuant to s 23 FOI Act
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