Dear Australian Communications and Media Authority,
On 23 April 2013 I lodged a complaint with your authority regarding what I considered to have been unacceptable bias exhibited by the presenter and producer of the ABC's "Q&A" programme which aired on 11 February 2013, resulting in what I contended to have been breaches by the ABC of provisions 4.1;4.3;4.4 and 4.5 of the ABC's Code of Practice ("the Code").
On 9 May 2013 you advised of your intention to investigate the complaint.
Subsequently, by letter dated 18 July 2013, you advised that you had completed your investigation into the matter and had concluded that the ABC had not in this instance breached the impartiality and diversity of perspectives provisions of the Code.
On 29 July 2013 I requested information from you in relation to the decision making process by which your authority had arrived at its advised conclusion.
On 12 August 2013 you responded to this request in very general terms referring to a process whereby a "team of investigators view and discuss the broadcast as part of [our] investigative process", however the response did not detail the methodology and process by which the material was reviewed in the context of the complaint, or by which the advised "conclusion" in the matter was reached, and by whom.
In order to better understand the process and methodology of your investigation into this matter (and matters of this nature), and the consideration and deliberation process on which your authority's conclusion was based, I now request copies of the following:
1) Details of ACMA's internal procedures and procedural guidelines for review of complaints of the nature of that raised.
2) All ACMA internal memoranda, correspondence, minutes of meetings of ACMA "teams" or officers (including dates and details of those attending) reports and recommendations in relation to ACMA's
investigation reference ACMA2013/794 - Investigation 3042, and the conclusions reached by ACMA as detailed in its above-referred advices of 18 July and 12 August 2013.
Dear Mr Wilson,
Please see attached correspondence for your consideration.
Dear Mr Davie,
Thank you for your preliminary response.
As requested I confirm that - in relation to the first category of documents requested
1) I am only seeking access to ACMA internal procedures and guidelines in place at the time of my complaint;
2) I am happy to exclude duplicate copies of the same document.
To better clarify, I seek only one copy of ACMA's internal guidelines as to the processes and procedures ACMA and its staff were committed to follow in their investigation of my complaint (and as current at the time of the complaint) for the purpose of better informing myself of those processes and procedures and to enable comparison of them with those steps actually taken in the investigation.
Dear Mr Wilson,
I write in relation to your Freedom of Information Act 1982 request with
the Australian Communication and Media Authority dated and received on 2
Correspondence and a schedule of documents are attached for your
Please note that as the various files containing the documents themselves
are quite large in size (a total of over 21MB), they are to be sent
through to you in three separate emails. Should you have any difficulty
receiving any of these three emails, please inform us by responding to
this email address soon as possible. We would be grateful if you could
confirm receipt once all three emails have been sent through to you.
Dear Mr Davie,
I acknowledge receipt of letter dated 2 October 2013 from Ms Sue Gabor, ACMA's authorised decision maker, in relation to this matter, with enclosures as referred to in that letter.
On reviewing the information provided I have some concerns that the disclosures are incomplete.
There are no details in the material discovered as to how the complaint investigation was actually managed or handled, by whom in the ACMA organisation, and how the decision (of no breach) was actually concluded.
1)Ms Gabor's decision explains the reasons that individual ACMA's officers names have been deleted from copies of emails discovered - and I fully understand and support the reason for this decision - however the inability to determine the positions (and therefore authorities) of ACMA's officers from these internal communications makes it impossible to assess whether the organisations prescribed authorities (i.e. with reference to ACMA prescribed internal procedures) have or have not been followed in the investigation process.
2) Section 2 of my request seeks "All ACMA internal memoranda, correspondence, minutes of meetings of ACMA "teams" or officers (including dates and details of those attending) reports and recommendations in relation to ACMA's investigation reference ACMA2013/794 - Investigation 3042, and the
conclusions reached by ACMA as detailed in its above-referred advices of 18 July and 12 August 2013."
(NB: It seems to in the above regard that the record of the investigation established and maintained on ACMA's AIMS system (as referred extensively in ACMA's Internal Procedures Manual [Document 3])ought to have been included in the disclosure material).
3)Section 7 of Chapter 3 of ACMA's Internal Procedures Manual specifies the requirement that a "WIM" [Weekly Investigation Meeting] to be held as part of the investigation and that notes of such meeting be kept. Document 16 indicates that the matter was included as one of two agenda items for a WIM Meeting on 24 June 2013 however no copies of the notes, minutes or records of that meeting as relevant to the request have been disclosed.
4) The next document disclosed (following the WIM agenda) is an email of 16 July 2013 (from one unidentified ACMA officer to another) referring to a "draft outcome letter" (which formed the basis of the "decision" later communicated to me.
As you know, my enquiry centred around establishing an understanding of ACMA's complaint investigation processes and how they were applied in the instance under discussion to reach the decision made. While ACMA's investigation processes as disclosed seem quite stringent and logical, given the deficiencies of the information disclosed it is impossible to judge whether, in this instance, they have been adhered to, how (and by whom) the complaint was actually investigated and by what process the decision was made. In particular there is a complete absence of any records between the scheduled WIM agenda and the draft decision notification, suggesting at face value that the "decision" was a virgin birth.
It would seem to me that there must be additional material in ACMA's possession relevant to my request that has not been disclosed and I would respectfully request that you review the matter in this context
Dear Mr Wilson
Thank you for your recent email.
In respect of your specific queries:
1. In redacting the names of ACMA employees in the documents, we have
sought wherever possible to keep the role of the employee in the documents
(in email signature blocks, for example). However, in some instances,
particularly with emails between ACMA staff, the document may not include
position details or title of the person sending or receiving the document
(i.e. may only include the person’s name).
To aid you with your query, however, I can inform you that the Weekly
Investigation Meeting (WIM) that dealt with Investigation 3042, held on 24
June 2013, was attended by the following:
• one EL2 (Manager)
• four EL1’s (Assistant Managers)
• three APS6’s (Investigation Officers).
2. We note your reference to ACMA’s AIMS database. Please find
attached the information in AIMS that relates to the investigation of your
complaint. Apologies for the oversight in not providing you with the print
outs from AIMS with the rest of the documents. I now confirm that we have
provided you with all of the documents within our possession or control
that fall within the description of material requested by you.
3. As alluded to above, a WIM was held for Investigation 3042, and
took place on Monday 24 June 2013. While our ‘How-to Guides’ state that
notes should be taken, this is generally done on an informal basis, and is
not a hard and fast rule. I confirm that no notes were taken at that
meeting and I believe that no further documents are within the agency’s
possession in relation to the discussion surrounding the investigation
that occurred at that meeting.
4. The document following on from the WIM, as noted by you, is a
draft of the letter that was ultimately sent to you on 18 July 2013. I am
satisfied, from my understanding of the record searches that were
completed in processing your FOI request, that there is no further
documentation in the ACMA’s possession between these two dates that
relates to the investigation.
In the case of Investigation 3042, the matter was discussed by those
present at the WIM (outlined at (1) above), all of whom had watched the
broadcast in question. Having regard to the principles outlined at the
preamble to standard 4 of the ABC Code of Practice 2011 (the Code), as
well as the general considerations for standard 4.1 employed by the ACMA
(provided to you as an attachment to our letter dated 12 August 2013),
those present formed the view that the matter was a straightforward
non-breach of the relevant provisions of the Code. As such, staff drafted
a letter to be addressed to you, briefly outlining the proposed decision
and the reasons for that decision. This draft letter, which was drafted by
an APS6 (Investigation Officer), cleared first by an EL1 (Assistant
Manager) and then an EL2 (Manager), was presented to the relevant delegate
(an Executive Manager), representing staff’s recommendation for her
decision. By clearing and signing the final form of that letter, the
Executive Manager considered the recommendation and made the relevant
decision in relation to your investigation. All internal ACMA procedures
and requirements were adhered to at all times in making the decision and
communicating it to you.
We hope that this explanation has answered your queries. However, as
outlined in my letter to you dated 2 October 2013, if you are dissatisfied
with the decision made by me as the authorised decision maker about access
to documents, you can ask the ACMA to conduct a review of the decision or
you may apply to the Australian Information Commissioner for a review.
If you are seeking a formal internal review of the FOI decision under s.54
of the FOI Act, please advise us of this in writing, setting out why you
are dissatisfied with the FOI decision.
Broadcasting Investigations Section
Australian Communications and Media Authority
T +61 2 9334 7915
E [email address]
Dear Ms Gabor,
Many thanks for your most recent email of 10 October and for the additional material and information supplied and provided therein.
Based on your advices I confirm that I am comfortable that my FOI request has been properly responded to and I appreciate your assistance and cooperation in that regard.
However, as you would no doubt appreciate, I am astonished to learn, based on your advice, that there are absolutely no notes or records of the WIM meeting at which the complaint was allegedly reviewed by ACMA officers and at which ACMA's "decision" that no breach had occurred was apparently determined.
As a consequence, the manner in which the complaint and programme material were reviewed, how the decision was arrived at, whether it was a unanimous decision or whether there were dissenting opinions, and whether the outcome was led, in the end, by a predisposition of (e.g.)one particular senior officer, remains a total mystery.
Your response suggests that there is nothing unusual about this and that the following of established internal investigation procedures is effectively considered to be a discretionary and elective matter for ACMA officers. I find this very peculiar indeed, particularly given the standards of transparency and probity expected of an organisation such as ACMA.
However, I do appreciate these matters extend beyond the FOI request with which you have been assisting, so I thank you again for your courtesies on this and will take-up these other concerns with others, as appropriate.