Where did ABC get its advice from?

Letter in The Australian today...

WRITING in The Australian about the ABC's publication of stolen intelligence documents that damaged Australia's relations with Indonesia, the ABC's director of news Kate Torney said: "We took advice from Australia's intelligence authorities on the matter and redacted sensitive operational information that might have compromised national security" ("Criticism of ABC's spying scoop reeks of sour grapes", 26/11).
A Freedom of Information request I made to the ABC for copies of the advice produced the following response from ABC's head of corporate governance: "The requested documents do not exist and therefore access to them is refused pursuant to s24A of the FOI Act."
As the ABC is a trusted source of news, perhaps Torney could explain where the advice came from.

This sent to the OZ on the 23rd of December. As readers here will know ABC's Head of Editorial Policy, Alan Sunderland has since provide clarification on the nature of communications, indicating they were provided "face to face" and ABC did not create any documents detailing that advice, hence the failure of my FOI request.

I have sent a follow up letter to the OZ indicating this and also asking some follow up questions of the ABC. Wait and see.

Update...That letter in Saturday's Australian...

SINCE my letter requesting the ABC reveal the source of intelligence advice it sought in relation to stolen intelligence documents (Letters, 27/12), the ABC's head of editorial policy, Alan Sunderland, has indicated it was provided face-to-face and the ABC kept no records.

Questions remain about which agencies the ABC contacted and the nature of the advice provided. If the agencies involved had Australia's best interests in mind, they would have objected to the ABC's involvement in reporting the documents. Why did the ABC ignore this part of the advice? If objections were not made by agencies supposed to have the national interest at heart, then why not? In the ABC's justification for reporting this story, its news director Kate Torney concluded: "We will not succumb to pressure to suppress or ignore legitimate stories to protect those in power." Will the ABC live up to this?

Questions remain about agencies contacted by the ABC in Snowden scandal

We will not succumb to pressure to suppress or ignore legitimate stories to protect those in power.
Kate Torney ABC News Director

In November, 2013 ABC reported on Top secret Australian DSD documents that showed Australian Spy agencies tapped the mobile phones of the Indonesian President and his wife in 2009. The report included copies of Top Secret Defense Signals Directorate Powerpoint slides stolen by US contractor Edward Snowden, currently hiding from US authorities. Public disclosure of this information has done significant damage to Australian Indonesian relations. The Australian Newspaper recently provided important background information missing from ABC's reporting that provides an explanation for Australia's interest in the private conversations of the Indonesian President and his wife.

ABC justified its reporting and collaboration with The Guardian on the basis that release of the information was in the public interest. In senate estimates ABC Managing Director Mark Scott indicated that prior to the report being published the ABC discussed the story with "Australian Authorities". According to Alan Sunderland the communications were done face to face and the ABC retained no records, explaining the failure of an FOI request we made to see documents related to this advice.

Questions remain as to which agencies the ABC contacted and the advice that was provided.

We assume if the agencies involved had Australia's interests in mind they would have strongly objected to the ABC's involvement in reporting the documents in collaboration with the Guardian. Why did the ABC ignore these requests? If objections were not made then this would represent a serious breach of duty of care to our national interests. This is a matter of public interest and as such we will attempt to obtain more details of the advice ABC was provided.

In ABC's justification for reporting this story its News Director Kate Torney concluded:
We will not succumb to pressure to suppress or ignore legitimate stories to protect those in power.
We shall wait and see whether ABC live up to this maxim? Or are those words mere confetti?

UPDATED FOI-request for records of communication with appropriate authorities

UPDATE: Alan Sunderland ABC's Head of Editorial Policy takes a WEB break and provides the following:

Marc,
The advice provided by intelligence was not provided in writing, it was provided face to face. That is why there are no documents of the kind you sought. The ABC itself also did not create any documents detailing that advice.
Merry Christmas,
Alan Sunderland (currently on "well-earned" break)
Head of Editorial Policy
ABC

To which I replied:

Thanks Alan,

ABC MD Mr Scott in senate estimates referred to multiple authorities -see transcript below. In the public interest can ABC indicate which authorities it spoke directly with. Based on your response it seems there was only one agency involved in which case Mr Scott may have mislead senate estimates (ed. on the number of agencies it took advice from).

From senate estimates transcript:

Mr Scott : I think there were discussions with The Guardian, but there were also discussions with appropriate authorities. As would usually be the case with a story, we went to appropriate figures—

Regards

Marc

Reply From Alan Sunderland:

Marc

I'm not proposing to go into any further details, but I can confirm that the MD's advice was accurate. 

Cheers,

Alan

Our response:

Dear Alan,

Thanks again. The ABC justified publication of stolen top secret classified documents on the grounds of public interest. I am using the same grounds to request for further details about ABC's communications with authorities.  In particular which agencies ABC spoke with (I am not requested the names of individuals) and the nature of the advice they provided. I find it hard to believe that the agencies involved condoned the release of stolen top secret information and on this basis would suggest on this basis that the ABC went against the advice of the agencies it contacted. It would be in the public interest to discover that the agencies involved did not recommend to the ABC that the documents not be reported upon in the first instance by the ABC. 

Look forward to your response. Appreciate your time away from WEB. Note in the public interest our correspondence is posted at the ABC NEWS WATCH blog.

Regards

Marc

Original Post below
In light of revelations that ABC do not have any documents that confirm ABC took advice from Australia's intelligence authorities, before it published stolen top secret information, we put the following request to ABC's FOI coordinator, perhaps a slightly different wording may reveal traces of the communication:

Dear FOI coordinator,

I refer to the following extract of the Hansard Transcript of ABC's managing director's testimony to the Environment and Communications Legislation Committee - 19/11/2013 - Estimates - COMMUNICATIONS PORTFOLIO

http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;orderBy=priority,doc_date-rev;page=5;query=Dataset%3Aestimate;rec=14;resCount=Default

I request under FOI any records related to the ABC's communications with "appropriate authorities" referred to by Mr Scott in the transcript below.

Senator LUDLAM: Mr Scott, I am going to take you back to where you began in response to some remarks that you made on questioning from my colleague Senator Ruston. I was watching and listening fairly attentively from my office downstairs and appreciate the candour of your comments regarding the story that the ABC and The Guardian broke yesterday. I think it was extremely well put. I am interested in the process of redaction. I notice that, of the slides you published, six or so slides have been redacted. Have you done that in collaboration with The Guardian, or is that something separate?

Mr Scott : I think there were discussions with The Guardian, but there were also discussions with appropriate authorities. As would usually be the case with a story, we went to appropriate figures—I will not go into detail on that—saying that we were aware of these matters, that we had seen these documents and that this was the shape of the story that we might be running. There was some consultation around that. I think that, in light of representations that were made, a decision was made to withdraw some elements on those slides. I will not go into the detail of that information, but that was a decision that we came to. That is not an atypical process.

Senator LUDLAM: Were you at that point coordinating with the editors of The Guardian?

Mr Scott : I believe I was aware the story was coming together and finally briefed on its shape before it went to air, but I believe that, even though, when the ABC was aware of this material, the ABC reporting staff made its own calls, made its own inquiries and wrote and filmed our own stories independently from The Guardian, there were points where there was discussion with The Guardian, including around the time when the story would be published.

Senator LUDLAM: Presumably in what form the primary source material would be published.

Mr Scott : Yes. I think there was an agreement around what material would be redacted and the reasons for that.

Senator LUDLAM: Can we assume that some of those redactions are a direct response to your process of checking with various authorities?

Mr Scott : Yes you can.

Senator LUDLAM: Publishers including The Guardian, The New York Times and others in the United States rest on first-amendment protections when they put this material to air or online, but in the UK, you are no doubt aware, the offices of The Guardian have been not quite raided but have had the editor told, 'Time's up; you've had your fun' and The Guardian has been forced to drill out and destroy hard drives containing the source material and, effectively, told to stop publishing. To their credit, they have not. What is the legal situation here in Australia? On what constitutional protections, if any, do you rest when you put a story like this to air?

Mr Scott : I do not have precise detail in front of me. We had this story legalled. We did not believe there was any legal impediment to broadcasting this material, but I do not have that precise legal advice in front of me this afternoon.

Senator LUDLAM: Okay. Do you publish under some kind of implied freedom of publication or are you exposed in the same way as publishers in, for example, the UK?

Mr Scott : We clearly do not have the first amendment here. In our discussions with authorities yesterday there were no other issues raised with us that was an inhibitor on us publishing this material.

Senator LUDLAM: That is good. I know it would not normally be the practice.

Mr Scott : And our act does require us to comply with the law. This is one of the reasons why we seek legal advice prior to publication.

Senator LUDLAM: I guess I am more concerned that the law is silent rather than containing any explicit prohibition for you to do what you have done. The law in the Australian Constitution is silent.

Mr Scott : That is true. There is no prevailing first-amendment protection.

FOI - Did ABC take advice from Australian intelligence authorities?

On the 26th of November 2013, The Australian newspaper published an op-ed piece by Director of ABC News Kate Torney defending ABC's collaborative publication of a report about stolen US documents that indicated Australian agencies had tapped into mobile phones of the Indonesian President and his wife. Titled: Criticism of ABC's spying scoop reeks of sour grapes, the piece contained this statement:

"As the ABC's managing director made clear at Senate estimates last week, that simply isn't true. We did not publish everything we had access to. We took advice from Australia's intelligence authorities on the matter and redacted sensitive operational information that might have compromised national security."

I was interested in looking at what "advice" ABC had been provided by "Australia's intelligence authorities" so filed an FOI request with the ABC for: “copies of the advice provided to the ABC by Australia’s intelligence authorities [as mentioned in a piece by Kate Torney published in The Australian newspaper on 26 November 2013]”.

Below is ABC's response which raises some serious questions about the veracity of Torney's claims that ABC took advice from  "Australia's intelligence authorities on the matter". It seems no documents can be found to support this claim!

We have sent the following question to ABC's Mark Scott, cc'd to Malcolm Turnbull Communications Minister and Senator Ann Ruston member of the senate's Environment and Communications Legislation Committee:

Dear Mr Scott,
In light of the results of an ABC FOI search (see attached) that could not locate any documents that confirm ABC sought advice from "Australia's intelligence authorities" in relation to stolen US documents reported upon by the ABC that have significantly damaged Australia's relations with Indonesia can you please confirm that ABC sought advice from "Australia's intelligence authorities" prior to publication of the documents, and the nature of that advice. The basis of the request is a claim made by ABC's director of news Kate Torney in an op-ed piece published by The Australian newspaper on the 26th of November, 2013 in which Ms Torney claims: "We took advice from Australia's intelligence authorities on the matter and redacted sensitive operational information that might have compromised national security."

Scott's initial reply...I am currently travelling on annual leave.

FOI REQUEST - REFERENCE NUMBER 2013-053

I refer to your request for access to documents under the Freedom of Information Act 1982 (the FOI Act) in your email of 26 November 2013. You have sought access to the following documents:

“copies of the advice provided to the ABC by Australia’s intelligence authorities [as mentioned in a piece by Kate Torney published in The Australian newspaper on 26 November 2013]”.

I am authorised by the Managing Director under section 23 of the FOI Act to make decisions in respect of requests made under that Act. Following is my decision in relation to your request.

Locating and identifying documents
I have taken reasonable steps to identify and locate all relevant documents. My search for these documents involved contacting:

• Office of the Director, News;
• Head of Policy and Staff Development in the News Division; and
• Managing Director’s Chief of Staff.

I requested that searches be conducted of all hard and soft copy records for documents which fall within the scope of your request. As a result of those searches, no documents were identified.

In the present case, I consider that all reasonable steps have been taken to locate relevant documents. I am further satisfied that the requested documents do not exist and therefore access to them is refused pursuant to s24A of the FOI Act.

Judith Maude
Head, Corporate Governance

UPDATE: as the same article appeared on THE DRUM under a different headline we have lodged a complaint of factual error with the ABC.

Recommended Reading

Some insightful Op Eds in today's Australian....

First a piece by Greg Sheridan that puts ABC's decision to throw Australia's relationship with Indonesia under a bus into perspective:

Spy story shows ABC at its left-wing worst
THE ABC emerges from the Indonesian spy scandal a diminished organisation, morally compromised and journalistically discredited.

The second exposes ABC's willful ignorance of what may be one of the biggest news stories of a generation:
When Aunty turned a blind eye
THIS year, the ABC has studiously ignored every major development in the Victoria Police major fraud squad investigation into the Australian Workers Union scandal. Even the proceedings of Victoria's courts on the matter - the bread and butter of local journalism - have eluded the national broadcaster's local reporters.