Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation  AICmr 7 (7 March 2012)
Decision and reasons for decision of
Freedom of Information Commissioner, Dr James Popple
|Applicant:||The Herald and Weekly Times Pty Ltd|
|Respondent:||Australian Broadcasting Corporation|
|Decision date:||7 March 2012|
|Related IC review:||'F' and Australian Broadcasting Corporation  AICmr 8|
|Catchwords:||Freedom of Information — Documents dealing with salaries of Australian Broadcasting Corporation program makers — Whether documents are in relation to the ABC’s program material — Freedom of Information Act 1982 (CTH) s 7(2); Schedule 2, Part II|
1. I set aside the decision of the Australian Broadcasting Corporation (the ABC) of 14 February 2011 and substitute my decision that the ABC is not exempt from the operation of the Freedom of Information Act 1982 (the FOI Act) in relation to the documents sought. The ABC must now make a decision on the applicant's request for internal review, and consider whether any exemptions apply to the documents requested.
2. On 25 November 2010, the Herald and Weekly Times Pty Ltd (HWT) applied to the ABC for access to:
all documents dealing with salaries of or any other payments made to ABC on-air radio and television personalities for the financial year 2009–2010, where such documents identify the individual, type of work and/or the amount paid.
3. On 20 December 2010, the ABC refused access to the documents sought on the basis that the documents were conditionally exempt under s 47F of the FOI Act (personal privacy), and that access to the documents would, on balance, be contrary to the public interest. On 4 January 2011, the applicant sought internal review of the ABC's decision.
4. During communications between the ABC and HWT, on 2 and 3 February 2011, HWT agreed to amend the scope of its FOI request to cover:
… all 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.
5. On 14 February 2011, the ABC made a decision on the internal review of its decision of 20 December 2010, taking into account the amended scope of the request. The ABC refused access to the documents sought, claiming that it was exempt from the operation of the FOI Act in relation to each of the documents requested because of s 7(2) and Part II of Schedule 2 to the Act.
6. On 4 April 2011, HWT sought IC review of this decision under s 54L of the FOI Act.
Decision under review7. The decision under review is the internal review decision of the ABC on 14 February 2011 to refuse HWT's amended request.
The ABC and its program material
8. The ABC is subject to the FOI Act because it is a 'prescribed authority' as defined in s 4(1) of the Act. But s 7(2) of the FOI Act provides that '[t]he persons, bodies and Departments specified in Part II of Schedule 2 are exempt from the operation of this Act in relation to the documents referred to in that Schedule in relation to them.' Part II of Schedule 2 to the Act includes 'Australian Broadcasting Corporation, in relation to its program material and its datacasting content'.
9. The Federal Court commented on the repetition of this expression 'in relation to' in Australian Broadcasting Corporation v University of Technology, Sydney  FCA 964; (2006) 154 FCR 209. Bennett J said:
There is no need to repeat 'in relation to' in the Schedule unless it adds a further qualification. The fact that this expression appears in each entry in the Schedule means that, putting the section and the Schedule together, exemption is granted 'in relation to … in relation to' the category specified.
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.
10. The Full Court of the Federal Court took issue with Bennett J's approach in Bell v Commonwealth Scientific and Industrial Research Organisation FCAFC 40:
Whilst we agree with her Honour that the expression 'in relation to' in s 7(2) and in Pt II of Schedule 2 makes it clear that a relevant agency is exempt from the operation of the FOI Act 'in relation to' the documents mentioned in the Schedule 'in relation to them', we do not consider that the further use of the expression 'in relation to' in Pt II of the Schedule is intended to add a further qualification. 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.
11. The question before the Court in ABC v UTS was whether documents concerning complaints about ABC programs were in relation to the ABC's program material. Bennett J held that they were. The FOI applicant in that case had contended that 'program material means the recordings and tapes, the “sights and sounds” that are broadcast by television or radio'.  Bennett J disagreed:
A construction which limits the exemption only to the tapes and recordings that formed the program material yields, to my mind, an improbable result. The exemption in s 7(2) is in terms of documents. Documents are broadly defined and include 'material' in the nature of tapes and recordings. That does not necessarily mean that other forms of document are excluded by the description 'program material'. Even if the category of documents specified is limited to tapes and recordings, the exemption both in the section and the Schedule is in relation to that program material. If a document has direct or indirect relationship to program material, subject to one further matter, it is exempt. 
12. The 'further matter' was her Honour's view that, because of the repetition of 'in relation to', the documents must 'have a relationship not only to program material but also to the ABC' for the exemption to apply. As discussed in  above, the Full Court in Bell v CSIRO disagreed with this part of Bennett J's approach. But the Full Court summarized ABC v UTS as concluding that the expression 'in relation to its program material and its datacasting content' in Part II of Schedule 2 covered 'documents relating to program material, as well as program material itself'. And their Honours thought this an 'unexceptional' conclusion.
13. The documents sought in this IC review are documents dealing with salaries paid to program makers by the ABC. Having regard to the reasons for decision in ABC v UTS and Bell v CSIRO, the question in this IC review is whether those documents are program material, or relate to program material. In my view they are not and do not.
14. The ABC says that the documents it holds which would be within the scope of HWT's application, if the ABC is not exempt, include: individual employment contracts; Australian Workplace Agreements; Individual Transitional Employment Agreements; the ABC Employment Agreement; pay slips; group certificates; and other payment records.
15. These documents relate to program makers, and those program makers produce ABC program material. But that does not mean that the documents relate to program material for the purposes of s 7(2) and Part II of Schedule 2 to the FOI Act.
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.
17. It follows that the ABC is not exempt from the operation of the FOI Act in relation to the documents that HWT seeks.
Other possible exemptions
18. Although the ABC is not exempt from the operation of the FOI Act in relation to the requested documents, those documents (or parts of them) may nonetheless be exempt under the Act. For example, s 47F (personal privacy) may apply to some or all of the requested documents, making them conditionally exempt. If access to those conditionally exempt documents would be contrary to the public interest, then the ABC is not required to provide them to HWT.
19. The ABC must now decide whether any exemptions apply to the requested documents.
20. Under s 55K of the FOI Act, I set aside the ABC's decision of 14 February 2011 and decide, in substitution for that decision, that the ABC is not exempt from the operation of the Act in relation to each of the documents requested.
Dr James Popple
Freedom of Information Commissioner
7 March 2012
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