ABC FOI setbacks won't draw sympathy from the chair

A nice juxtaposition.

In a week when Freedom of Information Commissioner Popple in two review decisions ruled the ABC had pushed too far in applying the exemption it enjoys under the Freedom of Information Act in relation to program materials, beyond what generous court interpretations allow, former NSW chief justice James Spigelman was appointed chairman of the ABC, to widespread acclaim.

In 1972 Spigelman's book Secrecy: Political Censorship in Australia helped put FOI on the agenda for the Whitlam government, with Spigelman himself appointed to a key position on the Prime Minister's staff following the election in December of that year. He went on to head the short-lived department of media while still in his twenties before an illustrious legal career.

Not that issues like those in the two FOI cases decided this week are going to take time at the board table. Although given Mark Scott's best memory of his days as a journalist before elevation to editorial and managerial positions, was using FOI to dig out a few gems about the education system, he and Spigelman maybe should kick back and shoot the breeze on FOI after a board meeting sometime.

In Herald and Weekly Times Dr Popple examined the legal precedents regarding interpretation of s 7(2) and part II of Schedule 2 of the FOI Act, citing the Full Court of the Federal Court conclusion in Bell that the expression 'in relation to its program material and its datacasting content' covered 'documents relating to program material, as well as program material itself'. The documents in dispute in this case were "documents dealing with salaries, or any other payments, paid by the ABC in the financial year 2009–2010 to program makers working on the following television and radio programs..".HWT specified 10 television programs and three radio programs. Dr Popple concluded:

16. In ABC v UTS, Bennett J decided that there was a sufficient relationship between documents concerning complaints about ABC programs and the ABC's program material for the exemption to apply. I think the connection between the documents in this IC review and the ABC's program material is so remote that there is not even an indirect relationship between them. The complaints in ABC v UTS were about the content of the program material; information about the salaries of program makers relates only to the administrative process of the production of that material."

Dr Popple found the documents were not exempt on the basis of Schedule 2 and referred the matter back to the ABC, noting that other exemptions such as the conditional exemption for protection of personal information may apply-but there are reasonableness and public interest tests that apply as well.

In "F", Dr Popple reached a similar conclusion about the documents in dispute:

policies and documents relating to the classification of television programs broadcast on the ABC, and internal policies or documents which explain why the ABC Board amended the section of the ABC Code of Practice entitled ‘Television program classifications’ in the 2006/07 financial year:

8. The connection between the documents requested in this IC review and the ABC’s program material and datacasting content is similarly remote. The documents are about the classification of the ABC’s television program material. The classification of program material is an administrative process undertaken before that material is broadcast. The only connection between the process and the material is that the process results in a classification rating that can be published before the material is broadcast, for the information of potential viewers and listeners.
9. A policy document might relate to program material if it affects the production of that material. But policy documents, like the ones that are the subject of this IC review, do not relate to program material for the purposes of s 7(2) and Part II of Schedule 2 to the FOI Act.

Three years ago Mark Scott showed a glimmer of interest in the context of the FOI reforms being floated at that time, in negotiating a modification of the special exemption, but the glimmer hasn't been sighted since. In the meantime Dr Popple has drawn a line on the ABC pushing the exemption beyond reasonable limits.