2 September 2024
Mr Daniel M
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Daniel
DECISION – REF. NO ABC FOI 202324-090
I refer to your email sent Wednesday 26 June 2024 seeking access under the
Freedom
of Information Act 1982 (the
FOI Act) to:
…1. Any document pertaining to the advertising revenue that the ABC has earned via
Google AdSense or the YouTube Partner Program from the ABC's YouTube channel
operations for the month of January 2024, for the following channels:
i. The "ABC News (Australia)" channel, available at
https://urldefense.com/v3/ https://www.youtube.com/@abcnewsaustralia ;!!FvZmf
VE!E1RjhHYeXFDQ2EM4xPvXS9pGuy8uWKjXkZ20KzrKJOEvd_qLByjGxSUOQbY_jUFH1p
FaEKerz22OjzBIZVDTpzNZyQW06pCaW5Y$
ii. The "ABC News In-depth" channel, available at
https://urldefense.com/v3/ https://www.youtube.com/@ABCNewsIndepth ;!!FvZmf
VE!E1RjhHYeXFDQ2EM4xPvXS9pGuy8uWKjXkZ20KzrKJOEvd_qLByjGxSUOQbY_jUFH1p
FaEKerz22OjzBIZVDTpzNZyQW0IGaChzY$
iii. The "triple j" channel, available at
https://urldefense.com/v3/__https://www.youtube.com/@triplej__;!!FvZmfVE!E1RjhHY
eXFDQ2EM4xPvXS9pGuy8uWKjXkZ20KzrKJOEvd qLByjGxSUOQbY jUFH1pFaEKerz22O
jzBIZVDTpzNZyQW0ccV5KKc$
iv. The "ABC Australia" channel, available at
https://urldefense.com/v3/ https://www.youtube.com/abcaustralia ;!!FvZmfVE!E1Rj
hHYeXFDQ2EM4xPvXS9pGuy8uWKjXkZ20KzrKJOEvd_qLByjGxSUOQbY_jUFH1pFaEKerz
22OjzBIZVDTpzNZyQW0IwlcvCc$
As the ABC may have multiple documents which satisfy this request, I am happy to limit
the request to the first document identified/located which outlines the revenue earned
for the above YouTube channels. Alternatively, I am happy for a document to be created
which contains this information.
In the event of a public interest test being required, my case for release being in the
public interest is as follows:
a) The ABC regards the absence of advertisements as being a distinctive feature of its
domestic TV/radio services (although permitted by law to augment public funding
through advertisement for certain activities), and regards its independence and
integrity in this regard as "paramount" [https://www.abc.net.au/edpols/11-advertising-
and-sponsorship-restrictions/13644014];
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 |
Email: xxx.xxx@xxx.xxx.xx
b) Under the ABC Charter, independence is "enshrined as a foundational principle";
c) The ABC regards impartiality as a "fundamental standard to the ABC"
[https://www.abc.net.au/edpols/impartiality/13645770];
d) The ABC receives (or may be receiving) funding in the form of advertising revenue
from a foreign organisation or a local subsidiary of such
[https://urldefense.com/v3/__https://www.smh.com.au/business/companies/no-
advertising-on-the-abc-just-head-to-youtube-20180918-
p504kj.html__;!!FvZmfVE!E1RjhHYeXFDQ2EM4xPvXS9pGuy8uWKjXkZ20KzrKJOEvd_qLB
yjGxSUOQbY_jUFH1pFaEKerz22OjzBIZVDTpzNZyQW03WpAWco$ ];
e) There is a reasonable expectation that the receipt of funds from commercial
activities could have an impact on the public's view of the ABC's impartiality and
independence;
f) The ABC already outlines its revenue via commercial endeavours in its Annual
Reports, however it does not go into detail as to the particular sources of said
commercial funding - the revenue that the ABC receives from a particular organisation
via commercial activities is relevant, as a reasonable person would expect that the ABC
may be more influenced by a $100,000 contribution than a $100 contribution.
As notified to you by email on 23 July 2024, the ABC was required to consult with an
affected third party, such that a decision on your request was due by Thursday 26
August
2023, under s 15(6) of the FOI Act.
On 19 August 2024, by email the timeframe for processing your request was extended
by agreement under s 15AA of the FOI Act. Accordingly, a decision on your request is
due on Friday
6 September 2024.
Authorisation
I am authorised by the Managing Director of the ABC to make decisions about FOI
requests under s 23 of the FOI Act.
Decision
I have identified one document that answers the scope of your request - Document 1,
as described in
Schedule 1, attached. I have refused access to
Document 1.
Material taken into account
In making my decision I have considered:
• the scope of your request
• the content of the document requested
• the FOI Act
• the guidelines issued by the Office of the Australian Information Commissioner
under s 93A of the FOI Act (
the Guidelines)
• responses to consultation undertaken with a third party
Locating and identifying documents
The search for documents included approaching the ABC’s Finance team and Legal
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Team. The ABC considers all reasonable steps were taken to identify and locate
relevant documents that answer your request. I am satisfied that the searches
conducted were thorough and all reasonable steps have been taken to locate the
documents relevant to your request.
Reasons for decision
Third Party Consultation
The ABC consulted with the affected third party to seek their views on the release of
the information in
Document 1 under freedom of information (
FOI).
The affected third party made contentions that the information was commercially
valuable to it under s 47 of the FOI Act and was therefore exempt from release.
I have agreed with their contentions as detailed below.
s 47 – Commercially valuable information – unconditionally exempt
Section 47(1)(b) provides that a document is an exempt document if its disclosure
under the FOI Act would disclose information having a commercial value that would
be, or could reasonably be expected to be, destroyed or diminished if the information
were disclosed.
To be exempt under s 47(1)(b), a document must satisfy two criteria:
• it must contain information that has a commercial value either to an agency or
to another person or body; and
• the commercial value of the information would be, or could reasonably be
expected to be, destroyed or diminished if it were disclosed.
The Guidelines, at paragraph 5.235, provide that it is a question of fact whether
information has commercial value, and whether disclosure would destroy or diminish
that value, and can include information relating to the profitability or viability of a
continuing business operation or commercial activity in which an agency or person is
involved.
Information does not necessarily require ‘exchange’ value for it to be commercially
valuable. However, the information must have some inherent value to an organisation
that can properly be characterised as commercial in character.
I am of the view that the document contains information which has commercial value
to the ABC and the third party. The ABC operates in a highly competitive media
landscape, in local and international markets, on limited funding as a public agency. It
has limited commercial arrangements in place where it also generates revenue in
order to provide the services contemplated by the
Australian Broadcasting
Corporation Act 1983 (Cth) and the
Broadcasting Services Act 1982 (Cth).
Releasing information that is protected by confidentiality arrangements between the
parties could reasonably be expected to destroy or diminish the value of the
arrangement to the ABC and the third party.
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The affected third party operates an online platform known as YouTube and is able to
sell advertising to individuals, agencies and organisations across the globe. The third
party is required to negotiate similar agreements with other media organisations in
the future. Providing information that may give insight into the commercial terms
agreed in confidence could reasonably be expected to undermine the third party’s
ability to negotiate with other parties in the future. Further, placing confidentially
negotiated terms in the public domain would unfairly advantage competitors of the
affected third party or the ABC when negotiating similar services in the future. This
could reasonably be expected to destroy or diminish the value of the information to
both parties.
For the information refused under s 47, I am of the view it is commercially valuable to
the third party and the ABC, and its value could be destroyed or diminished if it was
disclosed under FOI. This includes aggregated revenue which would give an indication
as to commercial rates for the services provided. If this information became freely
available to competitors of the parties, the commercial value in that information
would be, or would reasonably be expected to be, destroyed or diminished.
I accept the third party’s submission that the agreed rates would lose their inherent
value if they were released under FOI, particularly as the agreement is protected by
confidentiality arrangements such that the information was derived with an
expectation of confidence, and disclosure would breach the terms of a contract
executed by the parties.
I have therefore found the whole of
Document 1 is unconditionally exempt under s
47(1)(b) of the FOI Act as the information is commercially valuable.
As I have found the information to be commercially valuable, I have not considered the
alternative exemption claim of s 47G (1)(a), although, in my view it would have also
applied, with the public interest test being against disclosure of the information, on
balance.
s 45 – Material obtained in confidence – unconditional exemption
Information in
Document 1 is also exempt on the basis that disclosure of that
information under FOI would found an action for breach of confidence.
The Guidelines provide at paragraph 5.189 that to found an action for breach of
confidence, and for s 45 to apply, the following five criteria must be satisfied in
relation to the information:
• it must be specifically identified;
• it must have the necessary quality of confidentiality;
• it must have been communicated and received on the basis of a mutual
understanding of confidence;
• it must have been disclosed or threatened to be disclosed, without authority;
and
• unauthorised disclosure of the information has or will cause detriment.
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I have considered each of these criteria and I am satisfied that they are met in relation
to the document.
Document 1 is confidential based on the confidentiality clause within the related
agreement between the parties. Without the consent of the parties to release the
information under FOI, the confidentiality clause means the document is exempt from
disclosure under FOI.
I have found that the information has the necessary quality of confidentiality. It is
known to a limited group of people, and it is not common knowledge or known in the
public domain.
1 The information was communicated and received on the basis of a
mutual understanding that it would be treated by the ABC as confidential.
Document 1 contains an ongoing mutual obligation of confidence that if breached
would reasonably be expected to cause detriment to the other party to the contract,
and or to the ABC including a potential liability for the ABC to pay damages for breach
of contract.
For the reasons set out above, I am satisfied that release of
Document 1 would found
an action for a breach of confidence, and accordingly it is exempt under s 45 of the FOI
Act.
Review rights
Your review rights are set out in
Annexure A.
Yours sincerely
Ali Edwards
Head of Rights Management & FOI Decision Maker
xxx.xxx@xxx.xxx.xx
1 The Guidelines [5.162]
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Annexure A – Your Review Rights
If you are dissatisfied with this decision you can apply for Internal Review by the ABC, or
Information Commissioner (IC) Review. You do not have to apply for Internal Review before
seeking IC Review.
APPLICATION FOR INTERNAL REVIEW
You have the right to apply for an internal review of the decision refusing to grant access to
documents in accordance with your request. If you apply for an internal review, the Managing
Director will appoint an officer of the Corporation (not the person who made the initial
decision) to conduct a review and make a fresh decision.
You must apply in writing for an internal review of the decision within 30 days of receipt of this
letter. No particular form is required, although it would help if you set out the reasons for
review in your application.
Application for a review of the original decision should be emailed to ABC: xxx.xxx@xxx.xxx.xx
or addressed to:
FOI coordinator
ABC Legal
Level 13, 700 Harris Street
ULTIMO NSW 2007
APPLICATION FOR INFORMATION COMMISSIONER (IC) REVIEW
Alternatively, you have the right to apply for a review by the Information Commissioner of the
decision refusing to grant access to documents in accordance with your request. Your
application must:
• be in writing;
• be made within 60 days of receipt of this letter;
• give details of how notices may be sent to you (for instance, by providing an email
address); and
• include a copy of the decision for which a review sought.
The Information Commissioner has a discretion not to undertake a review (see Division 5, FOI
Act). Please refer to the OAIC website FOI review process page for further information and/or
to access the online form for applying for IC review:
https://www.oaic.gov.au/freedom-of-information/foi-review-process
Alternatively, application for IC Review can be emailed to: xxxxxxxxx@xxxx.xxx.xx or
addressed to:
Director of FOI Dispute Resolution
GPO Box 5218
Sydney NSW 2001
COMPLAINTS TO THE INFORMATION COMMISSIONER
You may complain to the Information Commissioner about any action taken by the ABC in the
performance of functions, or exercise of powers, under the FOI Act. The Information
Commissioner may make inquiries for the purpose of determining whether or not to investigate
a complaint.
Complaints can be made in writing to: OAIC - GPO Box 5218 Sydney NSW 2001
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