Federal FOI case finds complaints about ABC programs off limits

The Australian Centre for Independent Journalism, a centre within the University of Technology Sydney, has failed to convice the Federal Court that an exemption in the Federal FOI Act concerning documents held by Australian Broadcasting Corporation (ABC) should be interpreted narrowly.

In Australian Broadcasting Corporation v University of Technology Sydney (2006) FCA964, Justice Bennett decided that the exemption in Schedule 2 for documents "in relation to" ABC's "program materials" meant any documents that had a direct or indirect relationship to program materials. Justice Bennett rejected arguments that the provision should only apply to tapes and other recording materials, and that the provision was intended to protect intellectual property rights in ABC programs.

The Centre is seeking access to documents about complaints made to the ABC about its coverage of the middle east in 2000-2002. Justice Bennett's decision suggests that the ABC may be able to rely on the Schedule 2 exemption to refuse access to these documents. Further submissions from the parties have been invited prior to a decision on the status of each of the documents (listed in the decision).

The theory of statutory interpretation is that Parliament ponders and considers carefully words in bills and that courts then need to discern what Parliament meant. Some might suggest that what they were seeking to protect in the case of the ABC (and SBS) was program materials that could be utilised by commercial competitors and others in an unfair manner.

I doubt if anyone at the time thought that including the words "in relation to" meant that complaints made about ABC coverage, and the investigation of those complaints would come to be regarded as especially sensitive information covered by a special exemption in the FOI Act.