Letter sent by email, 26 September 2018
To whom it may concern,
I [wish to] make a request under Freedom of Information Act 1982 for the release of any minutes of meetings of the Board of the Australian Broadcasting Corporation between July 1, 2018 and September 25, 2018 relating to the position of the Managing Director.
They may be delivered to this email address (firstname.lastname@example.org).
The ABC first responded on October 2, 2018.
Dear Mr Mann
FOI REQUEST – REFERENCE NUMBER 201819-013
I refer to your request for access to documents under the Freedom of Information Act 1982 (the FOI Act) inyour email of 26 September 2018. Specifically, you have sought access to the following documents:
“Any minutes of meetings of the Board of the Australian Broadcasting Corporation between July 1, 2018 and September 25, 2018 relating to the position of the Managing Director.”
I confirm that the 30-day statutory period for processing your request commenced from the day after yourapplication was received, being 27 September 2018.
Subject to any suspension of the processing period or extension of the time for deciding this application, the ABC is required to make a determination in relation to this application by 26 October 2018. Please note that processing charges may be imposed and that consultation with third parties may be required. If it is necessary to seek agreement to pay charges or to consult with third parties, additional processing time is provided under the FOI Act. You will be advised of any charges as well as any need to consult third parties in relation to your request.
Please note that the ABC is required by the FOI Act to publish accessed information on its website within 10 working days after the release of the documents to the FOI applicant.
personal information (such as your name) may be disclosed in the course of processing this request, for instance for the purposes of consultation or internal reporting.
Your request will be considered and you will be provided with a decision as soon as practicable.
FOI and Corporate Governance Advisor
ABC Legal Services, Ultimo NSW
A second response, containing the FOI decision, was received November 8, 2018. Later than the statutory provisions on response time-frame permits.
Dear Mr Mann
FOI Request – Reference Number 201819‐013
I refer to your request for access to documents under the Freedom of Information Act 1982 (the FOI Act) in your email of 26 September 2018. Specifically, you have sought access to the following documents:
“Any minutes of meetings of the Board of the Australian Broadcasting Corporation between July 1, 2018
and September 25, 2018 relating to the position of the Managing Director.”
This letter sets out my decision on your request. 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.
I identified a number documents relevant to your request.
I have decided that the documents are exempt from disclosure under section 47E(d) of the FOI Act. My reasons for that decision are set out below.
I note that there is material in some of the documents which is not relevant to your request. The effect of section 22 of the FOI Act is that access is not given to those irrelevant parts.
Material taken into account
In making my decision I have had regard to:
- the terms of your request
- the content of the documents identified as relevant to your request
- the FOI Act
- guidelines issued by the Office of the Australian information Commissioner under section 93A of the FOI Act (the Guidelines)
Certain operations of agencies (section 47E)
Under 47E of the FOI Act:
…a document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of personnel by …an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
Prejudice to operations – (d)
The Guidelines explain at [6.123]:
“The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is, the agency is undertaking its expected activities in an expected manner.”
In this case the documents record the deliberations of the Board. The Board is the peak decision‐making body at the ABC. It is established under section 7 of the Australian Broadcasting Corporation Act 1983.
Its functions are specified in section 8 of that Act.
The documents relevant to your request contain records of Board deliberations relating to the position of the Managing Director. Having regard to the nature and subject matter of the deliberations, I am
satisfied that the Board had an expectation that the minutes would be confidential documents. I am aware that these minutes are held closely at the ABC, with access restricted to those staff of the ABC with a need to know the information within them. This is consistent with my understanding that they are confidential documents.
In my view it is essential to the proper operation of the Board that it can trust that its deliberations will remain confidential when that is the expectation of those participating in the deliberations. From time
to time the Board will deliberate on issues which must remain confidential in order to avoid prejudice to the ABC’s operations. This may be for a range of operational reasons, such as confidential negotiations
regarding broadcasting rights for major events or senior staffing appointments.
If the Board cannot have confidence that deliberations which it expects are confidential will be kept so, this is likely to inhibit the Board from fully and candidly deliberating on these matters. It would substantially adversely affect the ABC’s operations if its peak decision‐making body were unable to deliberate freely on confidential matters.
For this reason I am satisfied that disclosure of the documents could reasonably be expected to have a substantial adverse effect on the ABC’s proper and efficient operations.
Section 11A(5) of the FOI Act requires the ABC to provide access to a conditionally exempt document unless, in the circumstances, access to the document would, on balance, be contrary to the public interest.
I have had regard to the factors set out in section 11B(3) of the FOI Act which favour disclosure, specifically whether disclosure would promote the objects of the FOI Act, inform debate on a matter of public importance, or promote effective oversight of public expenditure. I have not taken into account the irrelevant factors in section 11B(4).
I acknowledge there is considerable public interest in understanding how the Board came to its decision regarding the Managing Director in September 2018. To some extent there is information available to
the public to allow it to gain some insight into those matters, via statements and press releases published by the ABC and interviews given by the former Chair of the Board.
In my view the need to preserve the effective operation of the Board, including its ability to deliberate confidentially where necessary, outweighs the public interest in providing greater detail of the Board’s
deliberations to the public.
I am also conscious that the former Managing Director has instituted legal proceedings in the Fair Work Commission. It would not be in the public interest if disclosure of these documents were to interfere in
any way with that legal process.
I am satisfied that at this time, access to the conditionally exempt material in the documents would, on balance, be contrary to the public interest. Accordingly, the documents are exempt from disclosure.
You have rights in relation to this decision. Those rights are set out at Attachment A to this decision.
ABC General Counsel & FOI Coordinator