Cracking ABC's chamber of secrets

The ABC is one of the only parts of the public sector that is virtually unaccountable to parliament and the public. It is not responsible to its minister, large parts of its operations are exempt from FOI and its governing board rules with a wet sponge. 


Back in 2010 we tried to open ABC's chamber of secrets through an FOI request for internal correspondence about ABC's faulty climate timeline. It didn't succeed thanks to provisions in the act that render aspects of the ABC exempt from FOI.

As Chris Merritt reports in today's Australian newspaper (ABC tries again on death threats report)

we are having another crack at ABC's chamber of secrets, with an FOI request regarding internal correspondence related to complaints about its faulty reporting about death threats at ANU. ABC have responded with their standard line that the correspondence is exempt: from ABC's head of corporate governance Judith Maude received June 5, 2012:

I refer to your email of 30 May 2012 in which you sought access to documents under the Freedom of Information Act 1982 (the FOI Act). Specifically, you have requested access to “copies of email communications or phone records between ABC Audience and Consumer Affairs Mark Maley and ABC News between the period 9:21 pm 10/05/12 and 11am on May 11, 2012.  Specifically communications purportedly dealing with a complaint I submitted to ABC Audience and Consumer Affairs on May 10 at 21:12”.

The documents you have sought access to are outside the scope of the FOI Act.

Under section 7(2) and Part 2 of Schedule II of the FOI Act, the ABC is exempt from the operation of the Act in relation to documents that relate “to its program material and datacasting content”. The Federal Court of Australia considered the scope of this exclusion in Australian Broadcasting Corporation v The University of Technology, Sydney [2006] FCA964, and decided that the exclusion applies to “program material” (such as scripts and tapes) as well as any document that has a “direct or indirect relationship to program material”.

I am satisfied that the documents you have described would have a direct relationship with the ABC’s program material such that they fall outside the operation of the FOI Act.

If you are dissatisfied with this decision you can apply for Internal or Information Commissioner (IC) Review. You do not have to apply for Internal Review before seeking IC Review. Information about your review rights is attached.

The FOI will initially be expanded to request all correspondence between ABC News and ABC Audience and Consumer Affairs relating to ABC's two erroneous reports (FOI emails reveal abuse of climate scientists and Climate scientist abuse emails released) rather than just the narrow window we initially requested. We will inevitably receive another letter like the above which will then be passed onto the Information Commissioner for review. In our opinion, internal correspondence about complaints do not constitute "Program Material". They are an important part of ABC's governance and accountability provisions and should be open to public scrutiny. We shall see what the information commissioner thinks of it.

Here's what Sen John Faulkner had to say about changes to FOI made by the government in early 2009:
"Sen Faulkner will be taking steps outside of the legislative process, sending personal letters to agency heads, which will highlight the need to embrace the new “pro-disclosure” culture.
These changes will help to create “a shift from the culture of secrecy we saw under the last Government to one of openness and transparency,” he said."
Source http://www.reportage.uts.edu.au/media/detail.cfm?ItemId=14713
It appears none of those letters found their way to the ABC.

In the meantime we are still waiting for that brave whistle, who might blow some of the dust hiding our Aunty's light.