Australian Broadcasting Corporation
Submission to
The Department of the Prime Minister and Cabine t
Public consultation on the exposure draft of the Freedom of Information Amendment (Reform) Bill 2009
May 2009
Introduction
The ABC is both a “requester” and a “discloser” under the Freedom of Information Act (FOIA):
As a media organisation, the ABC uses the FOIA to request information from public agencies in order to report news, make programs for broadcast, and publish content on our websites.
As a publicly funded statutory body, the ABC discloses documents under the FOIA to be open and accountable in relation to its administrative operations and expenditure of public monies.
This submission is concerned only with this second aspect – that is, the ABC’s obligation under the FOIA to disclose documents. (The impact of the proposed reforms on media organisations’ ability to access information held by government agencies is being addressed separately in a submission by the Right to Know Coalition, of which the ABC is a member.)
Ensuring public accountability while protecting independence and integrity
When considering the extent to which the ABC is subject to the FOIA, it is important to bear in mind that the ABC’s administrative functions are quite distinct from its newsgathering and programming activities. The former are quite properly the subject of FOIA. The ABC is a public body funded by public monies and accordingly is and should be held to account for the management and
administration of the corporation and its resources.
The latter newsgathering and programming activities, however, are not governmental activities. The ABC is held to account for maintaining high standards in its journalistic and creative endeavours through a mixture of co- and self-regulatory measures which have been carefully crafted to protect the ABC’s independence and integrity and ensure it is not subject to interference by external influences – whether by government, commercial or private interests.
Since its inception, the FOIA was drafted to acknowledge the importance of separating the ABC’s media activities from its other functions. It was accepted that program material was not the sort of documents with which FOI was concerned. Instead, FOI was to apply to the ABC in a way that would ensure the public could “examine the administrative operation of the [ABC] to ensure that it is
efficiently and properly conducted at proper expense”.1
Accordingly, since 1982, the ABC has been exempt under Schedule 2 of the FOIA “in relation to its program material and”, since January 2001, “its datacasting content”.
Updating the ABC’s exclusion
The Exposure Draft FOI Reform Bill 2009 does not propose any amendment to the ABC’s exclusion.
It is the ABC’s view that the current wording properly balances the public interest in accountability with the public interest in independent newsgathering and program-making. The ABC receives relatively few access requests (on average, 11 a year over the past 10 years) and has rarely been subject to external administrative review.
After 25 years of the FOIA’s operation, it would be timely to update the ABC’s exclusion. While the ABC is hesitant to suggest new wording at this time, mindful of the government’s current review into the Digital Future of the ABC and SBS and any reforms that might flow from that, the current FOI Reform Bill does offer an opportunity to update the ABC’s exclusion to better align with the changes
1Australia, Parliament, Senate Standing Committee on Legal and Constitutional Affairs, (1979), “Exemptions of agencies and classes of documents (clauses 4 and 5)”, Chapter 12 in Freedom of Information, paragraphs 12.13-12.14,
http://www.aph.gov.au/Senate/committee/legcon_ctte/completed_inquiries/pre1996/freedom/12ptcch12.pdf.
ABC Submission to the DPMC on the exposure draft FOI Amendment (Reform) Bill 2009
brought by the digital era and to take account of recent international practice. Underpinning any change to the exclusion, however, is the need to protect the independence and integrity of the ABC’s journalistic and creative endeavours.
Overseas models
In Australia, as in overseas jurisdictions, commercial media organisations are not subject to freedom of information laws and public service broadcasters are generally exempt in so far as their media activities are concerned. In the UK, Ireland and Canada, for instance, the public service
broadcasters’ journalistic and creative activities are excluded from the operation of their respective FOI laws as follows:
Since the UK FOIA 2000 was enacted, the British Broadcasting Corporation (BBC) has been subject to the Act except in respect of information held for purposes of “journalism, art or literature”.2
Since 2000,3 the Radio Telefís Éireann (RTÉ) has been subject to the Irish FOIA 1997 in relation to its administrative activities, but it is excluded in relation to a range of material including information gathered or recorded for “journalistic or programme content purposes, whether or not a programme is produced on the basis of such information or is broadcast”.
RTÉ’s exclusion also extends to other activities such as the identification of sources of information, editorial decision-making about programme and schedule content, and post- transmission internal review and analysis of any programme or schedule of programmes broadcast.
Since 2007, and after taking into account the FOI laws in Australia and elsewhere,4 the Canadian Broadcasting Corporation (CBC) was made subject to the Canadian Access to Information Act 1985 except as follows: “This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.”5
Adapting international models for the digital era
Like the Australian FOIA, these overseas models are drafted to ensure that the public broadcaster’s administrative functions are not excluded from the reach of FOI accountability. It is the program and content activities for the public broadcaster that need to be distinguished and excluded.
Unlike the Australian FOIA, the overseas models are more clearly drafted to recognise the need to protect the journalistic and creative spaces in which broadcasters operate. Including these references gives the exclusion greater precision about the types of documents that fall outside the scope of the FOIA.
2Freedom of Information Act 2000 (United Kingdom), Schedule 1, Part VI,
http://www.bailii.org/uk/legis/num_act/2000/ukpga_20000036_en_1.html#sch1-pt6.
3Freedom of Information Act, 1997 (Prescribed Bodies) (No. 2) Regulations, 2000 (Ireland),
http://www.bailii.org/ie/legis/num_reg/2000/0115.html.
4Canada, Justice Department, “Government views on legislative reform: Expanding coverage of the Act”, chapter 1 in A
Comprehensive Framework for Access to Information Reform, discussion paper, April 2005, http://www.justice.gc.ca/eng/dept- min/pub/ati-aai/02.html.
5Access to Information Act 1985 (Canada), section 68.1, http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-a-1/latest/rsc-1985-c-
a-1.html. [Section 68.1 was inserted into the Act by section 159 of the Federal Accountability Act 2006 (Canada), which came into operation on 1 September 2007: Canada Gazette (4 April 2007) Vol. 141, No. 7,
http://www.gazette.gc.ca/archives/p2/2007/2007-04-04/html/si-tr39-eng.html.]
ABC Submission to the DPMC on the exposure draft FOI Amendment (Reform) Bill 2009
While the UK model focuses on journalistic and other purposes, Australia and the other jurisdictions (additionally) use the language of “program(me)” or “programming”. This terminology is somewhat dated. Generally, the term “programming” is used in the context of radio and television transmissions and does not readily take into account the publication of news and information online and through other new and emerging technologies. It would be desirable to instead use the term “content” to modernise the exclusion. This term is platform-neutral and technology-neutral and also avoids the need for the current reference in the FOIA to “datacasting”.
The proposed model for the ABC’s exclusion
The ABC proposes that the current exclusion in the FOIA be replaced with wording that uses the Canadian exclusion, suitably adapted for the digital era. Accordingly, the following wording is proposed to be used in substitution to the current exclusion in Schedule 2 of the FOIA:
Australian Broadcasting Corporation, in relation to documents in respect of its journalistic, creative or content activities, other than documents relating to its general administration.
