Search This Blog

Tuesday, May 31, 2011

FOI front in the News v ABC battle

News Ltd papers are pushing and prodding the ABC. Chris Kenny in "Whose ABC?" in the Weekend Australian challenged the existing culture within the national broadcaster, and development strategies being pursued by Managing Director Mark Scott.

Two other reports detailed Freedom of Information rejections: Sean Parnell in the same paper ("FOI block keeps ABC audience data secret") and Russell Robinson in the Herald Sun ("ABC staying silent over staff salaries").

The audience data rejection was based on the exclusion from the FOI act that the ABC enjoys "in relation to documents" (s 7(2))" in relation to its program material" (the Schedule). In a Federal Court decision in 2006 Justice Bennett said[17]:

" It may well be that the repetition of ‘in relation to documents’ was unnecessary for the other agencies, as it was for the ABC. However, the repeated use of "in relation to" reinforces an intention to exempt not only the category of documents specified but also documents that relate to that category."
Justice Bennett held the exclusion covered a document if it had a "direct or indirect relationship to program material."

In the light of this, Parnell thought it was worth an application for the overall data,and did not seek program-specific data. To no avail:
"Audience research documents are closely tied with the ABC's programs, relating to the extent to which the ABC's content is consumed, and informing decisions about the creation, production, commissioning, scheduling and dissemination of current and future content," the decision-maker ruled.
The Weekend Australian editor Nick Cater said the application would be pursued through the appeals process."Since the ABC's business is program-making, it can theoretically argue that everything it does is related to programming," Cater said.

Yes it's broad as I have commented previously, with the Federal Court precedent seemingly going beyond what policy makers intended. In March 2009 Mark Scott said the ABC had "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." But later that year in a Submission to the Department of Prime Minister and Cabinet – Public consultation on the exposure draft of the Freedom of Information Amendment (Reform) Bill 2009, the ABC recommended changes based on the Canadian model, replacing the outmoded "program materials" and updating (broadening?) the type of material covered. The only tightening in the proposed formulation of the exclusion was an "in respect of" as a substitute for one of those "in relation" tos that mightn't make much difference:
Australian Broadcasting Corporation, in relation to documents in respect of its journalistic, creative or content activities, other than documents relating to its general administration
In any event the Government and the subsequent parliamentary process on reform paid no attention to the scope of the ABC (and SBS) exclusion, or to the broader issue of re-examination of the many blanket exclusions in Schedule 2, now incorporating NBN Co in "relation to documents in respect of "commercial activities

Robinson gives the reason for refusal of information about staff salaries- on-air presenters, not management in the text- as "not in the public interest," and:

The ABC also claimed it would place the corporation at a competitive disadvantage because it was not paying its on-air staff the full private sector rate. In correspondence between lawyers for the corporation and for the Herald Sun, it was argued: "The ABC has consistently argued that disclosure of the remuneration details of on-air presenters would disadvantage the ABC in the marketplace ... particularly in relation to its commercial competitors."
Without more about the exemption claims it's difficult to comment. Suffice to say that in addition to the exclusion, the ABC can utilise any of the exemptions in the act available to all agencies.

The issue of disclosure of on air presenters' salaries has been a hot issue for the BBC as well. Some presenters have disclosed, themselves on air. The UK FOI act covers BBC information "held for purposes other than those of journalism, art or literature."

The Herald Sun is also off to the Australian Information Commissioner.

The battle continues.

No comments:

Post a Comment