Producer Offset review and determination by POCU of the feature film, FRAGMENTARY

JANINE PEARCE made this Freedom of Information request to Screen Australia

Waiting for an internal review by Screen Australia of their handling of this request.

From: JANINE PEARCE

Delivered

Dear Screen Australia,

I act as legal representative for Fragmentary Pty Ltd. Under the Freedom of Information Act 1982, I am writing to request access to all correspondence and documentation relating to the feature film FRAGMENTARY (the Film), directed by Jace Pickard and produced by my client. My request includes, but is not limited to, provisional and final applications for the producer offset, assessment reports, committee reports, internal and external correspondence and project acquittal reports. Without limitation to the foregoing, in particular, I request all correspondence and reports from, to or between Graeme Mason, Sally Caplan, and/or Tim Phillips relating to the Film.

Yours faithfully,

JANINE PEARCE

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From: JANINE PEARCE

Delivered

Dear Ms Brophy,

Thank you for your response.

I will limit my original request under the Freedom of Information Act 1982 (FOIA) to the following documents:
1. Minutes of any portion of a Committee Meeting at which the Provisional Certification and Final Certification of the Film was discussed.
2. All internal and external assessors reports for Provisional Certification and Final Certification of the Film.
3. All correspondence to or from Graeme Mason referencing the Film, including but not limited to, correspondence using the phrases "credit card film" or "vanity project".
4. All correspondence to or from Mr Mason or Tim Phillips referring to the denial of Final Certification of the Film as a "test case".

I reiterate that the information is NOT exempt under FOIA noting that noting that all exemptions under FOIA are conditional on release of the document being "contrary to the public interest" and the FOIA Guidelines issued by the Office of the Australian Information Commissioner state that the public interest test is considered to be "something that is of serious concern or benefit to the public" and "related to matters of common concern or relevance to a substantial section of the public".

As this is a revision reducing the number of documents to my request made on 11 September, I expect the documents on or before 23 October 2020 pursuant to Part III, sec 15 of FOIA.

As the applicant, we do not agree to an extension and if you exceed the statutory time limit, you may not impose a charge for providing access. I also note that there is no charge for the first 5 hours (Charges Regulations, Schedule 1, Part 1, Item 4).

Yours faithfully,

JANINE PEARCE

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From: JANINE PEARCE

Delivered

Dear Ms Brophy,

You have indicated that you have determined that s27(1) of FOIA applies. Clause 27(1) is only relevant to documents which contain 'business information' of a third party, not the affairs of Screen Australia or its employees.

Third party information has not been requested.

I have specifically requested information relating to the Screen Australia's assessment of my client's entitlement to the Offset.

Even if, for arguments sake, a document is assessed as conditionally exempt under FOIA s47G, Screen Australia must give access to it unless access would, on balance, be contrary to the public interest (FOIA s11A(5)).There are no set of circumstances under which Screen Australia could argue that release of information relating to Screen Australia's assessment of my client's entitlement to the Offset is contrary to public interest.

5.12 of the Guidelines goes further: "The public interest test is weighted in favour of giving access to documents so that the public interest in disclosure remains at the forefront of decision making."

I am not of the opinion that disclosure remains at the forefront of your decision making.

I therefore find your conclusion that an exemption exists incorrect and, consequently, your extension to 24 November 2020 invalid.

We have agreed to extend the deadline to 23 October 2020 under FOIA Part III s15AA. We look forward to receipt of documents on or before that date.

Yours faithfully,

JANINE PEARCE

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From: JANINE PEARCE

Delivered

Dear Ms Brophy,

I note that the following do not qualify as third party "business documents":

(a) a document or correspondence created by a person who is engaged by Screen Australia to provide an external assessment of my client's application; and
(b) correspondence by Screen Australia employees in relation to my client's application

You are required to identify the documents before imposing a charge and provide the basis on which the assessment is made.

Please provide a list of the documents to be provided and why it will take 4 hours to provide access to the documents so that we have an opportunity to determine if the charge is fair. There is no copying involved and we only require access to electronic copies which are presumably sitting in a directory.

The charge should fairly reflect the work involved in providing access to documents and cannot be used to discourage us from exercising our right to access.

Yours faithfully,

JANINE PEARCE

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From: JANINE PEARCE

Delivered

Dear Ms Brophy,

As you have already identified the documents, I reiterate my request that you provide a list of the documents prior to our agreement to pay the fee. We do not want to be in a position where we pay the fee and you provide us with inadequate documentation.

Also, we require that you provide the list today so that payment made be made and the remainder of the documents provided today, save the one document you contend, erroneously in our opinion, requires consultation. The remainder of the documents are not subject to an extension beyond the agreed date of today.

If you do not identify the documents today and provide them today on agreement of payment, we will appeal to the Information Commissioner that:

Screen Australia is not entitled to charge because you are are providing the documents outside the agreed period; and
Screen Australia are intentionally discouraging us from our right to access the documents

Kind regards
JANINE PEARCE

From: FOI <[email address]>
Sent: Friday, 23 October 2020 10:09 AM

Dear Ms Pearce

Screen Australia considers that that a third party might reasonably want to make a contention that a document is conditionally exempt under s47G of the FOI Act. In these circumstances, Screen Australia is compelled to consult with that party. Please note that the third party can only make submissions to Screen Australia and that the ultimate decision as to whether or not to release the document is up to myself as the Screen Australia FOI decision maker. In this respect, I acknowledge that s47G is a conditional exemption and is subject to an overriding public interest test.

The third party consultation was first highlighted to you in my letter of 25 September and is already underway. I acknowledge your interest in receiving access to the documents and will endeavour to provide them before the due date of Tuesday 24 November, 2020.

In respect of the charges, they relate to the time already spent searching and identifying documents. The 4 hours was previously advised in my letter of 25 September. We are not proposing any additional charges dealing with the revisions to your request. As per our breakdown, we are not proposing charges for copying, inspection or delivery.

You have the right to contend that this charge has been wrongly assessed or should be reduced or not imposed. In considering any such contention, Screen Australia will take into account whether or not payment of the charge would cause financial hardship to you or the person on whose behalf the application was made, and whether giving access to the document would be in the public interest.

You have an obligation to notify Screen Australia within 30 days of this notice whether you:

- agree to pay the charge;

- dispute the charge (including seeking waiver or reduction); or

- withdraw the FOI request.

Please note that the FOI request will be taken to have been withdrawn if you fail to respond within 30 days.

Under the FOI Act you are not entitled to access any document until charges are paid.

Kind regards

Sandra

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Things to do with this request

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