The ABC boosts FOI stocks

Michael McKinnon is set to join the ABC in 2014 as Freedom of Information editor after pioneering this role through stints at The Courier Mail, The Australian and most recently the Seven Network.

Best wishes.

Linton Besser, already recruited from the Sydney Morning Herald and others hired to boost investigative journalism know their way through the FOI maze as well. 

Should make for interesting discussion around the water cooler about the ABC's broad approach to interpretation of its own part exemption from the Freedom of information Act.
Wonder if others in the media pack will FOI the salary packages of the new team?

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:

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:

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.

"In relation to in respect of" NBN commercial activities before Senate this week

NBN Co legislation that addresses a range of issues including bringing the company under the Freedom of Information Act (to some degree) is before the Senate this week. The legislation was the subject of this report by the Environment and Communications Legislation Committee last week. The FOI issue didn't attract attention in submissions-not surprising as they closed before the Bandt amendment in the House- or in the two committee hearings. The majority report [3.67-3.68] simply notes and supports the amendment, while coalition senators argue for full coverage for NBN Co as a prescribed authority. Issues concerning the uncertainty, canvassed here, about the scope and interpretation of the provision that would exclude the company from the act in "relation to documents in respect of" commercial activities may get a run in consideration of the bill in the Senate.


Coincidentally another Schedule 2 issue, the exclusion of the ABC from the FOI act "in relation to documents in respect of" program material surfaced in the news today in this Herald Sun report. The exclusion was relied upon to reject an application for information about the cost of the set re-design for the 7.30 program. As noted previously a Federal Court decision generously interpreted this provision in a way that even Managing Director Mark Scott admitted justified re-consideration in 2009-that interest appears to have waned.


Schedule 2 of the act and the blanket exclusions it confers was ripe for re-examination when the Australian Law Reform Commission recommended [76] 16 years ago. It wasn't then or during the recent FOI reforms. It's a long haul-the two year review of the act due in 2013 is the next best chance.

Simple as ABC/BBC: Middle East reporting out of FOI bounds

Previous posts here about the exclusion from the Commonwealth Freedom of Information Act of documents held by Australia's public broadcaster the ABC (and SBS) "in relation to program materials" have mentioned what appeared to be a contrast with the situation in the UK, where the BBC enjoys an exemption for documents concerning journalism. ABC Managing Director Mark Scott last year indicated the ABC was prepared to talk to the Government about tightening the exemption to something more in line with the UK provision, although nothing seems to have come of that.

Out-Law.com reports a UK Court of Appeal decision to refuse access on the basis of the journalism exemption to a study into how the BBC covered the Middle East in 2003 and 2004. In an earlier decision the Information Tribunal ruled the report should be disclosed. The Tribunal's interpretation was the exemption required the BBC to show that journalism was the main reason for the study, when it appeared to have been undertaken for strategic and resourcing reasons as well. The High Court and the Court of Appeal disagreed: as long as one of the reasons for the report was journalism then it was covered by the FOI Act exemption.

The Australian Federal Court decision that gave the ABC exclusion from the FOI act a generous interpretation, even by Mark Scott's reckoning, also resulted in a decision to refuse access to an ABC report on complaints it received about coverage of the Middle East in 2000-2002.

ABC lifts FOI game-50% refusal rate

Regular readers will know of our interest in the Freedom of Information doings of the Australian Broadcasting Corporation. The Annual Report 2008-2009 recently tabled in Parliament includes this in Appendix 18:

"The Freedom of Information Act 1982 (“FOI Act”) gives the public the right to access documents held by the ABC. Part II of Schedule 2 of the FOI Act gives the ABC an exemption in relation to material that is program related. During the past year, the ABC received 10 requests for access to documents under the FOI Act. Two requests were granted, three were granted in part and five were refused."

An improvement on last year's almost 100% refusal rate (8 refusals, 1 part disclosure) but no information about how much reliance was placed on a very generous 2006 Federal Court decision that the exclusion was broad enough to cover any document that had an indirect (as well as a direct) relationship to program material.

10 requests in the year wouldn't have put any strain on the system. Maybe the FOI Act isn't needed when it comes to getting information from the ABC. In contrast the BBC received 1141 requests during the same period.