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Wednesday, January 16, 2013

Public broadcasters FOI exemption brought back to where parliament intended

The Administrative Appeals Tribunal decision in Australian Broadcasting Corporation and Herald and Weekly Times [2012] AATA 914 sparked media interest in a slow news period with this headline suggesting the decision could result in a peek into Tony Jones pay packet, among other closely guarded gems held by the ABC.

The Tribunal upheld two decisions of Freedom of Information Commissioner Popple that hardly rated a mention at the time that bring the ABC back closer to the real world in use and application of the exemption the public broadcasters enjoy from the act in respect of  documents in relation to program material and datacasting content.

The ABC argued unsuccessfully that documents relating to the classification of ABC television programs and others relating to salaries and other payments made to program makers engaged on 13 ABC television and radio programs (I don't think Tony Jones was included) were exempt either because they are documents which are “program material” or are documents “in relation to program material.”

President Kerr and Senior Member Britton were faced with Federal Court precedents difficult to reconcile: Bennett J in Australian Broadcasting Corporation v University of Technology, Sydney [2006] FCA 964; (2006) 154 FCR 209  and the Full Court in Bell v Commonwealth Scientific and Industrial Research Organisation [2008] FCAFC 40 but worked their way through to a reasonable and sensible result.

Given the clumsy wording of the relevant provisions in the act and room for argument about what the terms mean that lawyers could seize upon, I imagine the ABC will consider an appeal on error of law grounds despite the fact that the Tribunal decision seems in line with parliament's intentions way back in 1981 in seeking to afford protection to program material. It is a welcome reset of lines of exemption extended by the UTS decision and well utilised by the ABC in the seven years since.

Another bone of potential contentious legal argument, although I think the Tribunal was right again, is the significance attached to the objects section [72-74] in interpreting relevant provisions, somewhat in contrast to the recent Federal Court decision in the Kline case.

Alternatively or in addition the ABC might swing into action arguing for legislative change? 

No submission from the ABC to the Hawke review has been published so far but they along with SBS and APN did not join other media coalition colleagues in their joint submission. SBS which is afforded the same exemption as the ABC lodged a submission obviously prepared before the Tribunal decision was handed down, cutely suggesting they take comfort from the fact that the exemption is not part of the terms of reference ("operation of the act" seems to cover the whole shebang, to me at least), but suggesting in any event the FOI exemption for public broadcasters in Canada might be a better form of words. 

Four years ago ABC Managing Director Mark Scott showed a glimmer of interest in the context of the FOI reforms being floated at that time, in negotiating a modification narrowing the special exemption, but the glimmer hasn't been sighted since. The Tribunal decision if it stands is a workable torchlight.

As to the decision regarding the scope and interpretation and application of the exemption:

The Tribunal considered argument [18-42] including that the exemption covered any documents that have a direct or indirect relationship to program material before concluding [43] "the relevant exemption of the ABC is only in relation to documents which are “program material” and not for any wider class of documents with some extended relationship or connection to those documents. On complexities arising from a reading of s 7 and the Schedule, the Tribunal said:
57......We consider that the use of the expression “in relation to” in Pt II of the Schedule is merely intended to pick up (and, in this sense, repeat) the use of the expression in s 7(2). The expression is used to tie the subsection and the Schedule together and not to introduce a further qualification. As the present case demonstrates, there is no good reason for the suggested further qualification, which would deny protection to documents created in the course of, or for the purposes of, commercial activities unless they were also shown to have some relationship to some such other documents. Such a suggested limitation would serve little purpose. Bearing in mind s 3(2) of the FOI Act, we do not think that the Parliament intended s 7(2) and Pt II of Schedule 2 to be read in this way.

The exemption:
On the meaning of program material, the Tribunal concluded:
53. In our opinion the ordinary user of the English language familiar with the role of the ABC would understand the words “program material” as conveying a wider meaning than restricted to documents which “actually make[s] up” the program and/or the broadcast of the program. (For current purposes we will use the word “program” to refer both to the program itself and any broadcast or publication of that program.) A program, be it designed for television or radio broadcast (or both) may encompass a range of material such as part or whole of another program, film, video, audio clips, scripts, screenplays, journal articles, poems, cartoons, graphics, newspaper articles, the content of auto cues, lyrics, compositions, sound recordings and so on. This material and the program itself are the end result of a process which may be quite lengthy and which may involve some material that is not ultimately included in the completed program. This material may be, nevertheless, essential to, or useful in, the production of the program and might include story ideas, notes of interviews or research done for the program, collections of images, storyboards, transcripts, outtakes, director’s notes and so on. The proposition that material of this type constitutes “program material” is consistent with the list of examples of program material endorsed by Bennett J in UTS at [20]:
  • films or tapes which have or have not been broadcast;
  • draft tapes and draft films;
  • material which is “part of the production process for the film or the tape recording”;
  • the development proposal and six treatments ...;
  • scripts; and
  • technical directions given by a director for the lighting on a particular program.
57. In our opinion, the term “program material” for the purpose of the Schedule, means the document (to the extent it falls within the extended meaning of s 4 of the FOI Act)(a reference to documents in respect of particular activities shall be read as a reference to documents received or brought into existence in the course of, or for the purposes of, the carrying on of those activities) which is the program and all versions of the whole or any part of the program, any transmission broadcast or publication of the program, and includes a document of any content or form embodied in the program and any document acquired or created for the purpose of creating the program, whether or not incorporated into the completed program. While not necessary to determine, we agree with the parties in UTS (see at [5]) that it would include a document created after a program is broadcast. Such documents might include transcripts of radio programs, podcasts, internet pages and documents produced by the ABC or incorporated in its records directly concerning the substantive content of the broadcast program.
In this case, neither salaries and payments to program makers [61] nor (i) policies and documents of the ABC relating to the classification of television programs broadcast on the ABC; and(ii) 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 2006/2007 financial year [85] were program material or documents in relation to program material, with the exception of the ABC logo. The documents are not exempt on these grounds.

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