16 July 2021
Ms Vanessa Teague
E) xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Teague
FOI REQUEST – REFERENCE NUMBER ABC FOI 202021-055
I refer to your request for access to documents under the Freedom of Information Act
1982 (the FOI Act). Specifically, I refer to your correspondence dated 15 June 2021, in
which you request:
Documents containing:
All data sharing agreements signed with all third parties who will be given
access to iview data, including:
- Google;
- Facebook;
- Tealium; and
- any others to whom the ABC has granted access to iview viewing data
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.
Privacy
The ABC is strongly committed to protecting the public’s privacy when interacting
with the ABC. The ABC is governed by the Australian Privacy Principles (APPs) under
the Privacy Act 1988 (Cth).
The ABC Privacy Policy includes details of how the ABC manages and collects
personal information. A copy of the ABC’s Privacy Policy is available at:
https://about.abc.net.au/abc-privacy-policy/
The ABC has a dedicated Privacy Officer who welcomes feedback and complaints in
relation to privacy issues.
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
1867008_1
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Material taken into account
In making my decision I have had regard to:
the terms of your request
the FOI Act
the guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (the Guidelines).
Decision
Access is refused in full to the requested documents on the basis that all of the
documents are subject to confidentiality.
My reasons for refusal of access to the documents are provided below.
Reasons for decision
Section 45(1) – material communicated in confidence
Access to the documents is refused on the basis that the material in those
documents is exempt under section 45 of the FOI Act – that is, because disclosure
under the FOI Act could found an action against the ABC for breach of confidence.
The Guidelines explain at [5.159] that to found an action for breach of confidence (and
therefore for section 45 to apply), the following five criteria must be satisfied in
relation to the information:
it must be specifically identified;
it must have the necessary quality of confidentiality;
it must have been communicated and received on the basis of a mutual
understanding of confidence;
it must have been disclosed or threatened to be disclosed, without authority; and
unauthorised disclosure of the information has or will cause detriment.
I have considered each of these criteria and I am satisfied that they are met in
relation to the documents.
Staff consulted have advised that each of the agreements contain information which
was given and received by the ABC on the understanding that it would be treated in
confidence. The information in the documents has the necessary quality of
confidentiality. It is only known to a limited group and is not common knowledge or in
the public domain.1 The information in the documents was communicated and
received on the basis of a mutual understanding that it would be treated by the ABC
as confidential. Each of the documents contain clauses requiring that confidence be
maintained.
1
The Guidelines [5.162]
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
1867008_1
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None of the relevant third parties have consented to disclosure of the information in
the documents. Accordingly, disclosure of the information would be unauthorised
and may result in potential claims for damages for breach of the ABC’s obligation to
maintain confidentiality.
For the reasons set out above, I am satisfied that release of the information in the
relevant documents could found an action against the ABC for a breach of
confidence, and that the documents are therefore exempt under section 45 of 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
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
1867008_1
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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
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
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Tel: +61 2 8333 5849
1867008_1
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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
1867008_1
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