The public broadcaster and enthusiasm for FOI reform close to home

ABC Managing Director Mark Scott at Australia's Right to Know Conference in March 2009, (with emphasis added)

"Let me acknowledge that some critics have suggested that it is a bit rich for the ABC to talk about leadership in areas of public access to information, when we ourselves are protected from some scrutiny through judicial rulings and the operations of the FOI act. Critics charge that we are being hypocritical in pushing a free-speech case while keeping some of our own internal documents from public scrutiny. The ABC has indicated to the Government that we are willing to engage in consultation around tightening the current exclusion clause in the FOI Act applying to the ABC and ensuring it is updated for the digital era. The objective must be, though, to ensure that any amendment adequately excludes categories of documents that, if routinely requested, would be likely to disadvantage the ABC in its proper operations. We believe the model used in FOI legislation in places like the UK, Ireland and Canada could and should be applied here. In those jurisdictions, the exclusion carves out a journalistic and creative space for the national broadcasters in order to ensure not just their competitive positions, but also their independence."

Scott in a letter dated 27 August 2009 to the Government 2.0 Task Force (with emphasis added):

"....there is a range of information about its programs and services that cannot be publicly disclosed without affecting the ABC's ability to compete for key staff and content. This is recognised by the Freedom of Information Act 1982 (FOI Act) which applies to the Corporation as a Commonwealth agency but exempts the ABC from acceding to freedom-of -information requests in relation to 'its program materials and its data casting content." This approach is consistent with similar exemptions applying to public service broadcasters' journalistic and creative activities in the UK , Ireland and Canada. The ABC has proposed in the context of the Government's Freedom of Information Amendment (Reform) Bill 2009 ("FOI Reform Bill") that the existing exemption be replaced with a more technologically- neutral formulation.

In relation to questions of government information, the Corporation is supportive of a pro-disclosure information policy within government. As both a "requester" and "discloser" of information under the FOI Act, it believes the Government's proposed freedom-of-information reforms including the underlying policy of greater pre-emptive disclosure of information, can only improve public accountability. The ABC is already ensuring thjat it will be able to meet the expanded publication requirements that it expects will be required once the FOI Reform Bill has been enacted."

A couple of points: the August letter makes no reference to the ABC's interest in discussion with the Government about tightening the exemption - in March this was a key element of Scott's public comment about the scope of the exclusion and its interpretation by the courts (here is some background on this issue); the UK, Ireland and Canada models in August are said to be consistent with what we already have here- in March they were what could and should be applied here to carve out a" journalistic and creative space" for the national broadcaster; on the ABC as a "discloser" under the FOI Act, the Corporation's latest Annual Report (Appendix 18, page 201) records that nine FOI applications were received in the year to 30 June 2008 - eight were refused entirely, and one resulted in partial release of requested documents (nothing was mentioned about the extent to which the exclusion played a role in this); and any submission the ABC has made to the Government on the FOI Reform Bill (which proposed no change in the current position of the ABC) has not been made public on the Government's website or that of the ABC.

Mark Scott's best memory of his days as a journalist before elevation to editorial, and his current managerial position, was using FOI to bring to public attention important information about the NSW education system. Let's hope the analysis above doesn't mean any real dampening in his enthusiasm.