2021 022 ABC FOI Notice of Decision Dehm.pdf

22 February 2021

Dr Sara Dehm

E) xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Dr Dehm
FOI REQUEST - REFERENCE NUMBER 202021-022

I refer to your request for access to documents under the Freedom of Information Act
1982 (the FOI Act) in your clarification email of 21 January 2021. Specifically, you have
sought access to following:
1.
Email communications, created or received from June 2020 onwards, from
or to Scott Stephens that are retrieved using the search terms: “Zionist
Federation of Australia”, “ZFA” or Dr "Bren Carlill";
2.
Email communications, created or received from June 2020 onwards, from
or to Scott Stephens, relating to the publication of Samah Sabawi’s opinion
piece on ABC Religion and Ethics report, entitled “If Israel’s annexation goes
ahead, can any response make a difference?” in July 2020, that are retrieved
using the search terms "Sabawi" or "Palestine"; and
3.
Communications (electronic or otherwise) between the Embassy of Israel in
Australia and the relevant ABC management concerning ABC online
publications or online news content in 2020.
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.
Material taken into account
In making my decision, I have had regard to:
•  the terms of your request;
•  the FOI Act;
•  guidelines issued by the Office of the Australian Information Commissioner
(OAIC) under section 93A of the FOI Act (Guidelines).
Legal   ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
1774968_1

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Decision
In relation to points 1, 2 and 3 of the request:
Access is refused in full to all documents on the basis that they comprise ‘program
material’,  and  by operation of s  7(2)  of the FOI Act, the ABC is exempt from the
operation of the FOI Act in relation to its program material.
Detailed reasons for my decision are below.
Reason for decision
Reasonable steps were taken to identify and locate all relevant documents.
The search for documents relating to points 1 and 2 of your request included
contacting Scott Stephens, Editor of the ABC’s Religion and Ethics website. The
search for documents relating to point 3 involved contacting the offices of the
Managing Director, the Director of Entertainment & Specialist, and the Director of
News, Analysis & Investigation.
As a result of the searches, I have identified 188 documents relevant to the scope of
your request under points 1 and 2, and one document under point 3. A single figure
for the total number of documents identified under points 1 and 2 is provided as
many of the emails were identified under both points.
The documents you have requested access to are internal ABC email
correspondence or email correspondence between the ABC and third parties. The
subjects of the emails are all related to articles published on the ABC’s Religion and
Ethics website.
I have not released the documents in response to your FOI request because the ABC
is exempt from the FOI Act in relation to its program material. As further explained
below, the exemption applies not only to program material itself (for example, the
publication of an article) but also to information relating to program material, such
as a complaint about a program; Australian Broadcasting Corporation v The
University of Technology, Sydney [2006] FCA 964.
I find that the documents requested are about an ABC program, specifically the
documents:
•  relate to the publication of articles on the ABC’s Religion and Ethics website;
•  are complaints or correspondence received by the ABC about an article of the
ABC’s Religion and Ethics website; or
•  are responses by the ABC to complaints or correspondence about an article of
the ABC’s Religion and Ethics website;
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
1774968_1

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and the ABC is therefore exempt from the operation of the FOI Act in relation to the
correspondence.
Program material
'Program material' is not defined in the FOI Act, however it has been the subject of
judicial consideration.
The Guidelines point to Herald and Weekly Times Pty Ltd and Australian Broadcasting
Corporation [2012] AICmr 7 (ABC and HWT), where “the AAT held that program
material means a document ‘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 complete program’”.
Post-broadcast material
ABC and HWT [57] goes further to say that program material “. .would include a
document created after a program is broadcast. Such documents might
include. .internet pages and documents produced by the ABC or incorporated in its
records directly concerning the substantive content of the broadcast program”
[emphasis added].
‘In relation 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, Sydney [2006]
FCA 964 (ABC v UTS) and held that the exemption also applies to ‘any document that
relates to program material’ [emphasis added]. 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”.
The emails you have requested are directly related to program material as they were
created for the purposes of publishing articles on the ABC’s Religion and Ethics
website or concern complaints or inquiries about the substantive content of an
article published on the ABC’s Religion and Ethics website.
As held in ABC and HWT (outlined above), documents acquired or created for the
purpose of creating a program, whether or not incorporated into the complete
article, satisfies the criteria of relating to ‘program material’. Correspondence to the
ABC containing or relating to a complaint about an article also satisfies the criteria
of relating to ‘program material’, as was held in ABC v UTS (outlined above),
As the documents satisfy the criteria of relating to ‘program material’ they fall under
section 7(2) of the FOI Act. Therefore, the ABC is exempt from the operation of the FOI
Act in relation to the documents.
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
1774968_1

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Review rights
You have rights in relation to this decision. Those rights are set out at Annexure A.
Yours sincerely,

Pamela Longstaff
Head of Corporate Governance & FOI Coordinator
xxx.xxx@xxx.xxx.xx

Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
1774968_1

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Attachment 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); and
•  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:
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
1774968_1

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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

Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
1774968_1

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