Communications from MCA and BCA between June and September 2019

J D made this Freedom of Information request to Australian Broadcasting Corporation

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

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The request was refused by Australian Broadcasting Corporation.

Dear Australian Broadcasting Corporation,

I am writing to request all communications including but not limited to email, postal correspondence, text messages by any platform and notes of telephone conversations received by ABC News management and/or staff from 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.

Yours faithfully,

J D

Dear J D

FOI REQUEST – REFERENCE NUMBER 201920-032

Many thanks for your email requesting access to documents under the
Freedom of Information Act 1982 (the FOI Act).

Your request

You have sought access to the following:

“[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/or staff, 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.”

Timeframe

I confirm that the 30-day statutory period for processing your request
commenced from the day after your application was received, being 11
November 2019.

Subject to any suspension of the processing period or extension of the
time for deciding this application, the ABC is required to make a
determination in relation to this application by 10 December 2019. Please
note that processing charges may be imposed and that consultation with
third parties may be required. If it is necessary to seek agreement to pay
charges or to consult with third parties, additional processing time is
provided under the FOI Act. You will be advised of any charges as well as
any need to consult third parties in relation to your request.

Please note that the ABC is required by the FOI Act to publish accessed
information on its website within 10 working days after the release of the
documents to the FOI applicant.

Privacy

You should also be aware that by making an FOI request, you may be
providing personal information to the ABC. The ABC will manage any such
information in accordance with the ABC’s Privacy Policy. Details of that
policy are available on the ABC’s website:
[1]http://about.abc.net.au/abc-privacy-poli.... Please note that personal
information (such as your name) may be disclosed in the course of
processing this request, for instance for the purposes of consultation or
internal reporting.

Your request will be considered and you will be provided with a decision
as soon as practicable.

Yours sincerely

Juliana

[2]ABC Juliana Walsh
FOI and Corporate Governance Advisor
P +61 2 8333 5304
E [email address]
[3][IMG]
We acknowledge Aboriginal and Torres Strait
Islander peoples as the First Australians and
Traditional Custodians of the lands where we
live, learn and work.

------------------------------------------------------------------------

From: J D
Sent: Sunday, November 10, 2019 6:38:01 PM (UTC+10:00) Canberra,
Melbourne, Sydney
To: FOI ABC
Subject: Freedom of Information request - Communications from MCA and BCA
between June and September 2019

Dear Australian Broadcasting Corporation,

I am writing to request all communications including but not limited to
email, postal correspondence, text messages by any platform and notes of
telephone conversations received by ABC News management and/or staff from
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.

Yours faithfully,

J D

-------------------------------------------------------------------

Please use this email address for all replies to this request:
[4][FOI #5873 email]

Is [5][ABC request email] the wrong address for Freedom of Information
requests to Australian Broadcasting Corporation? If so, please contact us
using this form:
[6]https://www.righttoknow.org.au/change_re...

This request has been made by an individual using Right to Know. This
message and any reply that you make will be published on the internet.
More information on how Right to Know works can be found at:
[7]https://www.righttoknow.org.au/help/offi...

If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.

show quoted sections

Dear J D

With regard to your FOI request for:

The ABC will have to request a search process from hundreds of individual
employees, as the News team both here and overseas is very large. This
would prove an unreasonable diversion of resources in the follow up
process, to ensure each individual had provided available documents.

Please refine your request so that a reasonable search can be undertaken –
for example by being more specific about the people or groups you wish us
to ask for a search. A good example might be “News Management and [insert
reporter/s’ name here]”.

I’d be happy to assist you with this clarification if you’d like to be in
touch.

All the best

Juliana

[1]ABC Juliana Walsh
FOI and Corporate Governance Advisor
P +61 2 8333 5304
E [email address]
[2][IMG]
We acknowledge Aboriginal and Torres Strait
Islander peoples as the First Australians and
Traditional Custodians of the lands where we
live, learn and work.

From: Juliana Walsh
Sent: Wednesday, 13 November 2019 2:10 PM
To: '[FOI #5873 email]'
<[FOI #5873 email]>
Cc: Gukby Sim <[email address]>
Subject: RE: Freedom of Information request - Communications from MCA and
BCA between June and September 2019 [ABC-Legal.FID62088]

Dear J D

FOI REQUEST – REFERENCE NUMBER 201920-032

Many thanks for your email requesting access to documents under the
Freedom of Information Act 1982 (the FOI Act).

Your request

You have sought access to the following:

Timeframe

I confirm that the 30-day statutory period for processing your request
commenced from the day after your application was received, being 11
November 2019.

Please note that the ABC is required by the FOI Act to publish accessed
information on its website within 10 working days after the release of the
documents to the FOI applicant.

Privacy

You should also be aware that by making an FOI request, you may be
providing personal information to the ABC. The ABC will manage any such
information in accordance with the ABC’s Privacy Policy. Details of that
policy are available on the ABC’s website:
[3]http://about.abc.net.au/abc-privacy-poli.... Please note that personal
information (such as your name) may be disclosed in the course of
processing this request, for instance for the purposes of consultation or
internal reporting.

Your request will be considered and you will be provided with a decision
as soon as practicable.

Yours sincerely

Juliana

[4]ABC Juliana Walsh
FOI and Corporate Governance Advisor
P +61 2 8333 5304
E [5][email address]
[6][IMG]
We acknowledge Aboriginal and Torres Strait
Islander peoples as the First Australians and
Traditional Custodians of the lands where we
live, learn and work.

------------------------------------------------------------------------

Dear Australian Broadcasting Corporation,

I am writing to request all communications including but not limited to
email, postal correspondence, text messages by any platform and notes of
telephone conversations received by ABC News management and/or staff from
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.

Yours faithfully,

J D

-------------------------------------------------------------------

Please use this email address for all replies to this request:
[7][FOI #5873 email]

Is [8][ABC request email] the wrong address for Freedom of Information
requests to Australian Broadcasting Corporation? If so, please contact us
using this form:
[9]https://www.righttoknow.org.au/change_re...

If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.

show quoted sections

Hi Juliana,

Thanks for that feedback. I'll take your advice and narrow the scope of recipients to News Management. So the request becomes:

> [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.

Best wishes,

J D

Hi J D

Thank you for getting back to me with that clarification.

We’ll continue with the search, refined to ABC News management, and
provide you with a decision on any documents retrieved as soon as
possible.

Kind regards

Juliana

From: J D <[FOI #5873 email]>
Sent: Friday, 15 November 2019 12:39 PM
To: Juliana Walsh <[email address]>
Subject: Re: FW: Freedom of Information request - Communications from MCA
and BCA between June and September 2019 [ABC-Legal.FID62088]

Hi Juliana,

Thanks for that feedback. I'll take your advice and narrow the scope of
recipients to News Management. So the request becomes:

Best wishes,

J D

show quoted sections

ABC FOI 201920 032 Decision 1570005 1.PDF.pdf

162K Download View as HTML

Dear J D

Please find attached the ABC’s decision in the matter FOI 201920-032.

Kind regards

Juliana

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References

Visible links
1. http://www.abc.net.au/
2. http://www.abc.net.au/corp/enter/emailsi...

Hi there,

Thanks for your decision.

Would you be able to provide a list of the documents found, to establish the facts of the decision, and to help me understand what kind of material was considered?

I am now writing to request an internal review of Australian Broadcasting Corporation's handling of my FOI request 'Communications from MCA and BCA between June and September 2019'.

The decision states:

"I have reviewed the documents located through these searches and found them to be ‘program material’. The ABC is exempt from the operation of the FOI Act in relation to program material and documents in relation to its program material. As such, access to the documents described in your request is refused under section 7(2) and Division 1 of Part II of Schedule 2 of the FOI Act. Reasons for my decision follow."

As to the reasons for my request, in particular, I would like to know whether the specific material found in this search that was created 'after a program is broadcast' can be exempted as 'program material'; and whether the specific material found was create 'for' the purpose of creating 'the program'.

Again, I would like a list of documents found in the search, to establish the facts of this decision. You will be familiar with the OAIC guidelines [3.22] which state: "A central obligation of a decision maker is therefore to identify and separate the ‘material questions of fact’; gather and assess information or evidence to support each finding of fact; and explain how each finding of fact was reached".

Significant to this decision are a list of the documents found, and crucially, the name of the program that the decision refers to (but does not name) which these documents are identified as material of. In other word, if material found in the search for this request, which has been deemed program material, was created 'after a program is broadcast', then in order to set out the facts that support this decision, I would like to know which programs the material relates to.

Without the list of documents—the facts of the decision—it is hard to identify more specific reasoning.

However, from the emphasis in the decision to say that 'program material' may include:

* documents not created by the ABC but 'incorporated into its records'; and,
* documents created 'after' a broadcast,

—I might guess that the material found includes complaints by the groups identified in the request received post broadcast.

If this kind of material was found, I would like a specific review and explanation of whether this material is exempt as 'program material'.

I note that the ABC has released this kind of material through FOI requests previously—this year in fact.

For example, see request 201819-038, date of access 26 Feb 2019 (https://about.abc.net.au/wp-content/uplo...). In this request, an email was released which is from an external organisation's staff, complaining about an ABC program called *The Drum* and requesting IPA representatives to appear on future programs. This was not deemed 'program material'.

Your decision sets out a definition of 'program material' to include "any document acquired or created *for the purpose of creating the program*" [emphasis added]. This interpretation is supported in 'F' and Australian Broadcasting Corporation [2012] AICmr 8 (7 March 2012), which states that a document (policy document in that case), 'might relate to program material if it affects the production of that material'.

Accepting this, I would like clarity on whether complaints or unsolicited communications received post-publication are 'reasonably direct' in relation to program material. The connection seems 'tenuous' to me at best. With more of the facts that support this decision I might have more clarity, but at the moment I struggle to see how this kind of material could affect the production of a program, or have been created 'for the purpose of creating' a program that had already broadcast, particularly if the document was received unsolicited from ABC staff. The example referenced above provides an example of a release of this kind of material.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/c...

Thanks again, and happy New Year!

J D

Dear J D

Thank you for your email.

Can you please confirm if you are requesting an internal review of the
ABC’s decision in this matter? If so, I will forward your email to the
independent ABC reviewer who will provide a fresh decision within 30 days
of receipt of your request, taking into consideration your comments
contending the outcome of the original.

Kind regards

Juliana

From: J D <[FOI #5873 email]>
Sent: Monday, 16 December 2019 6:56 PM
To: FOI ABC <[ABC request email]>
Subject: Internal review of Freedom of Information request -
Communications from MCA and BCA between June and September 2019

Hi there,

Thanks for your decision.

Would you be able to provide a list of the documents found, to establish
the facts of the decision, and to help me understand what kind of material
was considered?

I am now writing to request an internal review of Australian Broadcasting
Corporation's handling of my FOI request 'Communications from MCA and BCA
between June and September 2019'.

The decision states:

"I have reviewed the documents located through these searches and found
them to be ‘program material’. The ABC is exempt from the operation of the
FOI Act in relation to program material and documents in relation to its
program material. As such, access to the documents described in your
request is refused under section 7(2) and Division 1 of Part II of
Schedule 2 of the FOI Act. Reasons for my decision follow."

As to the reasons for my request, in particular, I would like to know
whether the specific material found in this search that was created 'after
a program is broadcast' can be exempted as 'program material'; and whether
the specific material found was create 'for' the purpose of creating 'the
program'.

Again, I would like a list of documents found in the search, to establish
the facts of this decision. You will be familiar with the OAIC guidelines
[3.22] which state: "A central obligation of a decision maker is therefore
to identify and separate the ‘material questions of fact’; gather and
assess information or evidence to support each finding of fact; and
explain how each finding of fact was reached".

Significant to this decision are a list of the documents found, and
crucially, the name of the program that the decision refers to (but does
not name) which these documents are identified as material of. In other
word, if material found in the search for this request, which has been
deemed program material, was created 'after a program is broadcast', then
in order to set out the facts that support this decision, I would like to
know which programs the material relates to.

Without the list of documents—the facts of the decision—it is hard to
identify more specific reasoning.

However, from the emphasis in the decision to say that 'program material'
may include:

* documents not created by the ABC but 'incorporated into its records';
and,
* documents created 'after' a broadcast,

—I might guess that the material found includes complaints by the groups
identified in the request received post broadcast.

If this kind of material was found, I would like a specific review and
explanation of whether this material is exempt as 'program material'.

I note that the ABC has released this kind of material through FOI
requests previously—this year in fact.

For example, see request 201819-038, date of access 26 Feb 2019
([3]https://about.abc.net.au/wp-content/uplo...).
In this request, an email was released which is from an external
organisation's staff, complaining about an ABC program called *The Drum*
and requesting IPA representatives to appear on future programs. This was
not deemed 'program material'.

Your decision sets out a definition of 'program material' to include "any
document acquired or created *for the purpose of creating the program*"
[emphasis added]. This interpretation is supported in 'F' and Australian
Broadcasting Corporation [2012] AICmr 8 (7 March 2012), which states that
a document (policy document in that case), 'might relate to program
material if it affects the production of that material'.

Accepting this, I would like clarity on whether complaints or unsolicited
communications received post-publication are 'reasonably direct' in
relation to program material. The connection seems 'tenuous' to me at
best. With more of the facts that support this decision I might have more
clarity, but at the moment I struggle to see how this kind of material
could affect the production of a program, or have been created 'for the
purpose of creating' a program that had already broadcast, particularly if
the document was received unsolicited from ABC staff. The example
referenced above provides an example of a release of this kind of
material.

A full history of my FOI request and all correspondence is available on
the Internet at this address:
[4]https://www.righttoknow.org.au/request/c...

Thanks again, and happy New Year!

J D

-------------------------------------------------------------------
Please use this email address for all replies to this request:
[5][FOI #5873 email]

If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.

show quoted sections

Hi Juliana,

Yes, I can confirm that is a request for internal review.

while that process happens, would it be possible to share any more information about this decision that I referenced in that last email? e.g. the program(s) being referenced; and the list or even a just a summary of the materials found could be helpful.

Any more information would be useful in further understanding the decision.

Thanks again :)

Best wishes

J D

Dear J D

Thanks for your response.

Please note that a program material decision means that documents found
were exempt from the operation of the FOI Act entirely (as opposed to
refused under a specified exemption in the Act). This means that if all
documents are found to be program material no further steps are taken to
process the request.

A schedule of documents would reveal what the documents are and in this
case clearly the intention was to not reveal their nature; nor is this
required of an agency that is specified under Part II of Schedule 2.
Providing a list or ‘summary of materials’ would provide information the
Act has said is exempt on the whole from consideration of release.

Where a large suite of documents contains documents that are in part
program material, or maybe some are and some aren’t, a schedule may be
provided to an applicant so that they can understand which parts of the
decision relate to which exemption.

In this case, again, this was not necessary as all the documents were
found to be program material and were therefore exempt from the operation
of the FOI Act.

Having said that, the internal ABC review decision-maker will see what the
documents are and make their assessment, and if it differs to the original
you may receive a list of the documents, if they decide they are in fact
not program material and they need to be assessed against the larger FOI
Act.

I confirm your request for internal review of the ABC’s decision in the
matter FOI 201920-032 has been received and your comments will be
forwarded on to the ABC’s delegated internal review decision-maker. You
will be provided with a new decision no later than 15 January 2020.

Many thanks again

Juliana

From: J D <[FOI #5873 email]>
Sent: Tuesday, 17 December 2019 12:14 PM
To: Juliana Walsh <[email address]>
Subject: RE: Internal review of Freedom of Information request -
Communications from MCA and BCA between June and September 2019
[ABC-Legal.FID62088]

Hi Juliana,

Yes, I can confirm that is a request for internal review.

while that process happens, would it be possible to share any more
information about this decision that I referenced in that last email? e.g.
the program(s) being referenced; and the list or even a just a summary of
the materials found could be helpful.

Any more information would be useful in further understanding the
decision.

Thanks again :)

Best wishes

J D

show quoted sections

Hi Juliana,

Thanks for explaining that. I missed that the intention was to not reveal the nature of the documents.

Would it be possible to reveal the number of documents found in the search without revealing their nature for your purposes? I understand that it isn't required of you, I am just interested. This might help narrow the scope of future requests.

Thanks again for your time and for confirming the initiation of a review. I appreciate your detailed explanation here.

Best wishes,

J D

FOI request response.pdf

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Dear J D

Please see attached letter on behalf of Jeanette Davis.

Kind regards

[1]ABC Amy Fox
People & Culture
P 02 8333 2691
E [email address]
[2][IMG]
We acknowledge Aboriginal and Torres Strait
Islander peoples as the First Australians and
Traditional Custodians of the lands where we
live, learn and work.

Please consider the environment before printing this e-mail.

References

Visible links
1. http://www.abc.net.au/
2. http://www.abc.net.au/corp/enter/emailsi...

Letter to J D dated 16 January 2020.pdf

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Dear J D

Please see attached letter.

Kind regards

[1]ABC Vanessa Murray
EA to Chief People Officer
[2]http://www.abc.net.au/corp/email_newslet...
P +61 2 8333 5327
M +61 408 166 864
E [3][email address]
[4]http://www.abc.net.au/corp/enter/img/bra...

Please consider the environment before printing this e-mail.

References

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1. http://www.abc.net.au/
3. mailto:[email address]
4. http://www.abc.net.au/corp/enter/emailsi...

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