‘F’ and Australian Broadcasting Corporation  AICmr 8 (7 March 2012)
Decision and reasons for decision of
Freedom of Information Commissioner, Dr James Popple
|Respondent:||Australian Broadcasting Corporation|
|Decision date:||7 March 2012|
|Related IC review:||Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation  AICmr 7|
|Catchwords:||Freedom of Information — Policy documents of the Australian Broadcasting Corporation — 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 27 May 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 FOI request, and consider whether any exemptions apply to the documents requested.
2. On 14 April 2011, the applicant applied to the ABC for access to documents relating to:
- policies and documents of the ABC 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.
3. On 27 May 2011, 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.
4. On 1 June 2011, the applicant sought IC review of this decision under s 54L of the FOI Act.
Decision under review
5. The decision under review is the decision of the ABC on 27 May 2011 to refuse the applicant’s request.
The ABC and its program material
6. 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’.
7. The proper application of these provisions is discussed in detail in another IC review: Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation  AICmr 7. Having had regard to Federal Court authority, I decided that the connection between the documents requested in that IC review and the ABC’s program material was so remote that there was not even an indirect relationship between them. Accordingly, the ABC was not exempt from the operation of the FOI Act in relation to the documents sought in that IC review.
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.
10. It follows that the ABC is not exempt from the operation of the FOI Act in relation to the documents that the applicant seeks.
Other possible exemptions11. 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. The ABC must now decide whether any exemptions apply to the requested documents.
Decision12. Under s 55K of the FOI Act, I set aside the ABC’s decision of 27 May 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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