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‘F’ and Australian Broadcasting Corporation [2012] AICmr 8 (7 March 2012)

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Decision and reasons for decision of
Freedom of Information Commissioner, Dr James Popple

Summary of case details
Applicant: 'F'
Respondent: Australian Broadcasting Corporation
Decision date: 7 March 2012
Application number: MR11/00140
Related IC review: Herald and Weekly Times Pty Ltd and Australian Broadcasting Corporation [2012] 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

 

Contents

 

Summary

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.

 

Background

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 [2012] AICmr 7. Having had regard to Federal Court authority,[1] 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 exemptions

11. 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. 

Decision

12. 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

Review rights
If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Appeals Tribunal. The AAT provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the AAT must be made within 28 days of the day on which the applicant is given the IC review decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $777, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT's website (www.aat.gov.au) or by telephoning 1300 366 700.


[1] Australian Broadcasting Corporation v University of Technology, Sydney [2006] FCA 964; (2006) 154 FCR 209; Bell v Commonwealth Scientific and Industrial Research Organisation [2008] FCAFC 40.