11 February 2021
Michael Sudding
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Sudding
DECISION – FOI REQUEST REF. NO. 2021-036
I refer to your email sent 11 November 2021 requesting access under the
Freedom of
Information Act 1982 (the
FOI Act) to:
… ABC management conducted an internal investigation into ex-ABC producer Jon
Stephens. He was jailed in 2017 for child sexual abuse. ABC hired lawyers and spent an
entire year researching. Michelle Guthrie informed Senator Abetz at Senate estimates
that they were interviewing nine ex-employees and others.
Could you please provide all documents and costings related to this investigation.
A decision on your request was due by
13 December 2021.
On 9 December 2021, we notified you by email that the timeframe for processing
your request was extended for the purposes of consultation under s 27 of the FOI
Act. Accordingly, a decision on your request was due on
Wednesday, 12 January
2021.
On 23 December 2021, we sought your consent to extend time under s 15AA due to
January leave for staff members, and external counsel with whom we were
consulting. On 6 January 2022, you consented to this extension of time. Accordingly,
a decision on your request is due on
Friday, 11 February 2022.
Authorisation
I am authorised by the Managing Director of the ABC to make decisions about FOI
requests, under section 23 of the FOI Act.
Locating and identifying documents
I am satisfied that all reasonable steps were taken to identify and locate all relevant
documents that answer your request. The search for documents included
approaching Legal, People & Culture and Archives areas of the ABC.
In order to make the processing of your request more manageable, I have excluded
documents that are exact duplicates of other documents I have included. Where
practicable I have also excluded discrete parts of email chains that are otherwise
included. This means that I have made a decision on every document relevant to your
request, but only one copy of every document.
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Email: xxx.xxx@xxx.xxx.xx
Interpretation of scope
On 31 January 2022, we advised you by email that we had interpreted the scope of
your request to include documents which relate in a substantive way to the
investigation and invoices received from external counsel for work that related to
the investigation. We proposed to set to one side non-substantive documents that
are only peripherally connected to matters of administrative process as irrelevant.
We proposed to exclude the following categories of documents:
emails making practical arrangements for interviewees to attend interviews
with the investigator, such as scheduling and room bookings
emails recording administrative steps taken to obtain access to relevant ABC
files for the investigation, such as requests to retrieve documents from
archives or obtain technical support to access electronic files
emails relating to the budget and cost estimates for the investigation by
external counsel (noting that all final invoices from external counsel are
included within scope).
To date, we have not received a response to this proposed approach and have
proceeded to process your request on this basis.
Material taken into account
In making my decision I have considered:
the scope of your request
the content of the documents requested
the FOI Act
the guidelines issued by the Office of the Australian Information
Commissioner under section 93A of the FOI Act (
the Guidelines)
relevant case law
responses to consultation undertaken with third parties.
Decision
I have identified 48 documents that answer the scope of your request. These
documents are described in
Schedule 1, which is attached to my decision.
I have granted access to 2 documents in full, 24 documents in part and refused
access to 22 documents in full.
My reasons for refusal of access are provided below.
Reasons for decision
Section 22(1)(a)(ii) – Irrelevant information
Section 22(1)(a)(ii) provides that information in a document that is irrelevant to the
scope of a request can be redacted.
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Section 22 has been applied in circumstances where I have decided that to give
access to a document would disclose information that would reasonably be
regarded as irrelevant to the request for access. Documents that have been partly
redacted under s22 are noted in Schedule 1.
Section 42 – Legal professional privilege
Section 42(1) exempts a document if it is of such a nature that it would be privileged
from production in legal proceedings on the ground of legal professional privilege.
The Office of the Australian Information Commissioner FOI Guidelines (the
Guidelines) provide at paragraph 5.129, that determining whether a communication
is privileged requires a consideration of:
a) whether there is a legal adviser-client relationship;
b) whether the communication was for the purpose of giving or receiving legal
advice, or use in connection with actual or anticipated litigation;
c) whether the advice given is independent; and
d) the advice given is confidential.
I find that disclosure of the documents exempted under s 42(1) would involve
disclosure of documents that would be exempt from production in legal proceedings
on the ground of legal professional privilege.
In this matter, external counsel was retained for the purpose of conducting the
investigation and preparing advice in relation to that investigation, in the broader
context of advising the ABC in connection with its legal obligations and position.
External counsel is admitted to practice as a legal practitioner and is independently
employed as a barrister at the NSW Bar. I am satisfied that external counsel provided
independent legal advice and that a lawyer-client relationship existed between the
ABC officers and external counsel.
The advice was given on the understanding that the usual and well-established
relationship of confidence between a legal advisor and a client governed the
communication. That is apparent from the face of the investigation report, as well as
the communications passing between the ABC and the lawyer in the course of the
investigation.
Accordingly, I am satisfied that the documents are exempt under 42(1). The
communications were at the time and remain confidential. I am further satisfied that
there has been no waiver of legal professional privilege.
Where communications between external counsel and ABC officers were not for the
purpose of giving or receiving legal advice, or use in connection with actual or
anticipated litigation, I have released that information.
Section 47E(c) – substantial adverse effect on the management of personnel
Section 47E(c) of the FOI Act conditionally exempts documents containing
information the disclosure of which would, or could reasonably be expected to, have
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a substantial adverse effect on the management or assessment of personnel by the
Commonwealth or by an agency.
Management of personnel
Paragraph 6.114 of the Guidelines provides that for section 47E(c) to apply, the
documents must relate to the management of personnel – which is defined to
include the broader human resources policies and activities, recruitment, promotion,
compensation, discipline, harassment and occupational health and safety. The main
object of work health and safety legislation is to protect workers and other persons
against harm to their health, safety and welfare through elimination or minimisation
of risks arising from work.
The information the documents exempted under s 47E(c) comprises the names and
contact details of ABC staff, in the context of their involvement in assisting external
counsel in the course of their investigation, below the level of General Counsel.
Names, email addresses and contact details of staff
In determining that staff names, contact details and direct phone lines are
conditionally exempt under section 47E(c), I have considered the guidance in the
Australian Information Commissioner’s policy document:
Disclosure of public
servants’ name and contact details in response to FOI requests (my emphasis):
In certain circumstances, the management of staff and the discharge of the Australian
Government’s legal responsibility to ensure the health and safety of its staff may be
substantially and adversely affected if public servants’ names and contact details are
routinely disclosed in response to FOI requests. Agencies must take all reasonable
steps to minimise the risk of harm to staff to be compliant with their statutory
obligations under section 19 of the Work Health and Safety Act 2011. As discussed,
these known risks have evolved over time as a result of the changing digital
environment.1
I consider these comments are relevant to ABC staff in this context. If the names of
staff, direct contact details or other identifying information are publicly disclosed
under FOI, employees could be exposed to unwarranted public contact or criticism.
Given the serious, sensitive and emotive subject matter of this investigation,
employees could be subject to direct enquiries and/or pressure from members of the
public in relation to the subject matter of the investigation or the subject area more
broadly. I stress that I do not suggest that you personally would be responsible for
such conduct, but the publication of the material via the ABC’s FOI disclosure log
makes the information available to the world at large.
The FOI Act places no limit on the dissemination of the information once it is released
under FOI. The staff members who are mentioned in these documents have not
consented to the public distribution of their identity or involvement in matters
1 https://www.oaic.gov.au/freedom‐of‐information/guidance‐and‐advice/public‐servants‐names‐and‐contact‐details/ at
20 October 2021
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described in the documents, and would not be expected to speak on behalf of the
ABC with respect to the subject matter of the investigation.
In my view, revealing the identities and direct contact details of staff working at a
level below the General Counsel on these matters would interfere with the effective
management of those personnel by exposing them to the kind of unwelcome
criticism or harassment that I have described above. For these reasons, I find that
information in the documents
is conditionally exempt under section 47E(c) of the FOI
Act, and these details have been redacted.
The public interest
Conditionally exempt material must be released unless, in the circumstances, access
at this time would, on balance, be contrary to the public interest (section 11A(5) of
the FOI Act). I have considered the factors favouring access in section 11B(3) of the
FOI Act and I have not taken into account factors that are irrelevant in section 11B(4).
I have considered the following factors in favour of disclosure:
a) promoting the objects of the Act, particularly in increasing scrutiny,
discussion, comment and review of the Government's activities
(section 3(2)(b) of the FOI Act)
b) informing debate on a matter of public importance, namely the conduct of
inquiries in to allegations of wrongdoing by former Commonwealth
employees; and
c) facilitating access to information to members of the public that allows them
to be satisfied that proper processes have been followed by the agency.
I have considered the following factors against disclosure:
a) protecting individuals from unreasonable interferences with their privacy
b) protecting staff from occupational health and safety risks
c) preserving reasonably held expectations of confidentiality and trust between
employees and the ABC.
In this case, I have formed the view that disclosure of the information will make a
limited contribution to those factors that favour disclosure. The contribution of the
named employees to the investigation is minimal as the documents in which they are
named are largely procedural and incidental to the investigation.
However, the factors that weigh against disclosure are significant. Disclosure of the
information will do little to further inform public debate or increase scrutiny of
Government affairs (
Warren; Chief Executive Officer, Services Australia and
(Freedom of information) [2020] AATA 4557 at [136]). I find the public interest in
protecting individuals from unreasonable interferences with their privacy and the
obligation of the ABC to look after the wellbeing of its employees outweighs any
public interest in the disclosure of the information.
Accordingly, I have concluded that disclosure would, on balance, be contrary to the
public interest and that those documents are exempt in part under section 47E(c) of
the FOI Act.
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Section 47F – personal privacy
Section 47F conditionally exempts a document to the extent that its disclosure
would involve the unreasonable disclosure of personal information about any
person.
Personal information
Section 4 of the FOI Act provides that personal information has the same meaning as
in the
Privacy Act 1988. Personal information is defined in section 6 of the Privacy Act
as:
... information or an opinion about an identified individual, or an individual who is
reasonably identifiable:
(a) whether the information or opinion is true or not
(b) whether the information or opinion is recorded in a material form or not.
The documents contain information including the mobile phone number of the (then)
ABC General Counsel, the mobile phone number of external counsel and the full
name and mobile phone number of external counsel’s legal assistant. I am satisfied
that all of these parts of documents over which an exemption under section 47F is
claimed, contain personal information.
Whether or not the disclosure is unreasonable
If information is personal information, it will be conditionally exempt if disclosure
would be ‘unreasonable’. Paragraph 6.138 of the Guidelines provides that the
personal privacy exemption is designed to prevent the unreasonable invasion of
their parties’ privacy, which implies a need to balance the public interest in
disclosure of government-held information and the private interest in the privacy of
individuals.
In considering whether disclosure would be unreasonable, section 47F(2) of the FOI
Act requires me to take into account:
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
the availability of the information from publicly accessible sources
any other matter I consider relevant.
Paragraph 6.142 of the Guidelines provides that key factors for determining whether
disclosure is unreasonable include:
the author of the document is identifiable
the documents contain third party personal information
release of the documents would cause stress on the third party
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no public purpose would be achieved through release.
I have also considered whether any public purpose is achieved through release. I do
not consider that any obvious public interest arises on the disclosure of external
counsel’s or General Counsel’s mobile number or the name or mobile number of her
legal assistant. On the other hand, there is a considerable risk to an individual’s right
to privacy and the stress that disclosure would cause the individuals involved. On
that basis, I have concluded that disclosure of the information would be
unreasonable.
I find that these parts of documents are conditionally exempt in part under section
47F of the FOI Act.
The public interest
The above discussion of the public interest in regards to section 47E(c) is also largely
relevant to s 47F. In relation to this exemption, I have weighted limited public interest
in the release of this information against the protection of individuals from
unreasonable interferences with their privacy. Accordingly, I have decided that the
documents are exempt part under section 47F of the FOI Act.
Review rights
Your review rights are set out in
Annexure A.
Yours sincerely
Pamela Longstaff
Head of Corporate Governance & FOI Decision Maker
xxx.xxx@xxx.xxx.xx
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Schedule 1
Document Schedule - FOI 2021-036
No.
Date
Description
No. of
Access
Exemptions applied
Notes
Pages
decision
29 August 2017
Observations in brief to
Refuse in full
S 42 – legal professional
1.
4
counsel
privilege
S 42 – legal professional
2.
Undated
Dramatis personae
4
Refuse in full
privilege
Refuse in full
S 42 – legal professional
3. Undated
Chronology
8
privilege
Refuse in full
S 42 – legal professional
4.
Various
Interview notes
17
privilege
Refuse in full
S 42 – legal professional
5. Various
Records
of
telephone calls
11
privilege
Refuse in full
S 42 – legal professional
6.
13 August 2018
Draft report
57
privilege
Refuse in full
S 42 - legal professional
7.
5 November 2018
Report
88
privilege
Grant access
S 47E(c) – management of
8.
6 November 2018
Letter from Counsel
1
in part
personnel
16 March 2018
Searches to obtain contact
Refuse in full
S 42 - legal professional
9.
details for potential
7
privilege
interviewees
28 August 2017
Email chain
3
Grant access
S 47F – personal privacy
10.
in part
S 47E(c) – management of
personnel
Undated
Attachment: NSW Government 3 Grant
access
Publicly available
11.
Guiding Principles
in full
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Email: xxx.xxx@xxx.xxx.xx
No.
Date
Description
No. of
Access
Exemptions applied
Notes
Pages
decision
29 August 2017
Email chain
3
Grant access
S 47F – personal privacy
12.
in part
S 47E(c) – management of
personnel
29 August 2017
Attachment: Costs Disclosure
7 Grant
access
13.
and Agreement
in full
29 August 2017
Email chain
3
Grant access
S 47F – personal privacy
14.
in part
S 47E(c) – management of
personnel
29 August 2017
Attachment: Brief
52
Refuse in full
S 42 - legal professional
15.
privilege
16.
28-30 September
Email chain
5
Grant access
S 42 - legal professional
2017
in part
privilege
S 47F – personal privacy
S 47E(c) – management of
personnel
17.
Various Attachment:
Records
of
Refuse in full
S 42 - legal professional
Duplicate of Document
telephone calls
privilege
5
18.
28 September 2017 Email
1
Grant access
S 42 - legal professional
in part
privilege
S 47E(c) – management of
personnel
19.
Various Attachment:
Chronology
10
Refuse in full
S 42 - legal professional
privilege
20.
3 October 2017
Email
2
Grant access
S 42 - legal professional
in part
privilege
S 47E(c) – management of
personnel
21.
Undated Attachment:
Document
3
Refuse in full
S 42 - legal professional
privilege
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No.
Date
Description
No. of
Access
Exemptions applied
Notes
Pages
decision
22.
10 October 2017
Advice
11
Refuse in full
S 42- legal professional
privilege
23.
Various Email
chain
3
Grant
access
S 42 - legal professional
Irrelevant information
in part
privilege
deleted under section
S 47F – personal privacy
22
S 47E(c) – management of
personnel
24.
Various Email
chain
3
Grant
access
S 42 - legal professional
in part
privilege
S 47F – personal privacy
S 47E(c) – management of
personnel
25.
30 November 2017
Attachment: Status update
3
Refuse in full
S 42- legal professional
privilege
26.
5 April 2018
Email
1
Grant access
S 42 - legal professional
in part
privilege
S 47E(c) – management of
personnel
27.
Various
Email chain re meeting
7
Grant access
S 42 - legal professional
Irrelevant information
in part
privilege
deleted under section
S 47F – personal privacy
22
S 47E(c) – management of
personnel
28.
30 April 2018
Email chain re updates
3
Grant access
S 42 - legal professional
in part
privilege
S 47F – personal privacy
S 47E(c) – management of
personnel
29.
10 July 2018
Email chain re updates on
4 Grant
access
S 42 - legal professional
report
in part
privilege
S 47F – personal privacy
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No.
Date
Description
No. of
Access
Exemptions applied
Notes
Pages
decision
30.
10 July 2018
Email
1
Grant access
S 42 - legal professional
in part
privilege
S 47E(c) – management of
personnel
31.
Various Attachment:
Interview
notes
4
Refuse in full
S 42 - legal professional
Duplicate of 4
privilege
32.
10 July 2018
Email
2
Grant access
S 42 - legal professional
in part
privilege
S 47F – personal privacy
S 47E(c) – management of
personnel
33.
Various Attachment:
Interview
notes
4
Refuse in full
S 42 - legal professional
Duplicate of 4
privilege
34.
9 August 2018
Email chain
4
Grant access
S 47F – personal privacy
in part
S 47E(c) – management of
personnel
35.
13 August 2018
Email
2
Grant access
S 42 - legal professional
in part
privilege
S 47F – personal privacy
S 47E(c) – management of
personnel
36.
Various
Attachment: Draft Report
57
Refuse in full
S 42 - legal professional
privilege
37.
24 August 2018
Email chain
2
Grant access
S 42 - legal professional
in part
privilege
S 47E(c) – management of
personnel
38.
Various Attachment:
Document
10
Refuse in full
S 42 - legal professional
privilege
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No.
Date
Description
No. of
Access
Exemptions applied
Notes
Pages
decision
39.
28 August 2018
Email chain
5
Grant access
S 42 - legal professional
in part
privilege
S 47F – personal privacy
S 47E(c) – management of
personnel
40.
19 September 2018 Email
3
Grant access
S 42 - legal professional
in part
privilege
41.
Various Attachment:
Interview
notes
4
Refuse in full
S 42 - legal professional
Duplicate of 4
privilege
42.
7 October 2018
Email
2
Grant access
S 47F – personal privacy
Irrelevant information
in part
S 47E(c) – management of
deleted under section
personnel
22
43.
5 October 2018
Attachment: Final report
84
Refuse in full
S 42 - legal professional
Duplicate of 8
privilege
44.
8 October 2018
Email chain
3
Grant access
S 47F – personal privacy
Irrelevant information
in part
S 47E(c) – management of
deleted under section
personnel
22
45.
5 October 2018
Attachment: Updated Brief
11
Refuse in full
S 42 - legal professional
index
privilege
6 November 2018
Tax Invoice
3
Grant access
S 42 - legal professional
Irrelevant information
in part
privilege
deleted under section
46.
S 47E(c) – management of
22
personnel
16 October 2017
Email
1
Grant access
S 47F – personal privacy
47.
in part
10 October 2017
Attachment: Advice
10
Refuse in full
S 42 - legal professional
Duplicate of 23
48.
privilege
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Annexure A – Your Review Rights
If you are dissatisfied with this decision you can apply for Internal Review by the ABC, 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 apply for an internal 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 fresh decision.
You must apply in writing for an internal review of the decision within 30 days of receipt of
this letter. No particular form is required, although it would help if you set out the reasons for
review in your application.
Application for a review of the original decision should be emailed to ABC: xxx.xxx@xxx.xxx.xx
or addressed to:
The FOI Coordinator
ABC
Level 13
700 Harris Street
ULTIMO NSW 2007
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.
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
Alternatively, application for IC Review can be emailed to: xxxxxxxxx@xxxx.xxx.xx or
addressed to:
Director of FOI Dispute Resolution
GPO Box 5218
Sydney NSW 2001
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 can be made in writing to: OAIC - GPO Box 5218 Sydney NSW 2001
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 | Email: xxx.xxx@xxx.xxx.xx
