Dear Australian Broadcasting Corporation,

If possible, please treat this as an informal or administrative request. Otherwise, please treat this as a formal request for documents under the Freedom of Information Act 1982.

I request copies of the following:
- The business case document(s) (or equivalent) that include the proposal to make iView accounts mandatory, including any attachments. I request only the final version of the document(s) that were submitted for approval of the proposal.
- Documents constituting a risk register or equivalent documentation describing the risks from the proposal, risk ratings, proposed treatments and mitigations, etc. Where multiple versions of such documents exist (such as drafts) I only request two versions:
1. the version current when the proposal was submitted for approval, and
2. the version current on 1 June 2021 at 9am AEST.
- Documents, including emails, containing the submission of the proposal for consideration and approval.
- Meeting minutes or equivalent that document approval of the proposal.

I request that all documents be provided in electronic form.

I further request that all charges in relation to this request be waived on public interest grounds. The iView system forms a major part of the ABC's method of communication to the public, and thus represents a substantial outlay of public funds. A large cross-section of Australians enjoy ABC content via iView and thus substantial changes to the service, such as this one, will affect their ability to watch, listen, and enjoy Australian stories produced using public funds.

Release of these documents will help to reassure the Australian public that the changes are beneficial to both them and the ABC, which is a matter of public importance. Release will also promote effective oversight of public expenditure by reassuring the public that the process for approving the initiative was conducted with appropriate rigour and diligence.

Yours faithfully,

Justin Warren

Dear Jordan,

I agree to the extension of time.

Hopefully you will not require the full 30 days.

Yours sincerely,

Justin Warren

Dear Jordan,

It has come to my attention that there is an error in your calculation of the timeframe for a decision to be made in your reply to my FOI request.

In your email of 26 July 2021, you state "I confirm that the 30 day statutory period for processing your request commenced from the day after your email was received, being 19 July 2021." This is in error.

Under s 21(1)(a) of the FOI Act, a decision on a request is required "as soon as practicable but not later than 30 days after the day on which the request is received by or on behalf of the agency or Minister".

The FOI Guidelines helpfully note at [3.140] that "An email or similar electronic communication is received at the time it is capable of being retrieved by the addressee. This is assumed to be the time it reaches the addressee’s nominated electronic address (this day could be a weekend or public holiday)." My request reached your email system on 17 July 2021, not 19 July 2021.

Accordingly, the end of the 30 day period is 16 August 2021, not 18 August 2021 as you state in your email of 12 August 2021.

While I agreed to a 30 day extension of time in my response of 12 August 2021, I wish to clarify that this means the period for providing a decision ends on 15 September 2021.

I trust that you will be able to provide a decision, and the documents I have requested, before then.

Yours sincerely,

Justin Warren

Dear Australian Broadcasting Corporation,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Australian Broadcasting Corporation's handling of my FOI request 'Business case for mandatory iView accounts'.

The decision maker has failed to adequately provide reasons and other particulars of their decisions as required by s 26(1) of the FOI Act.

s 47C
The scope of my request included:
- Documents, including emails, containing the submission of the proposal for consideration and approval.
- Meeting minutes or equivalent that document approval of the proposal.
Section 6.66 of the FOI Guidelines relevantly states that “the decision or conclusion reached at the end of the deliberative process” is not deliberative matter.
Since Document 1 is the only document that has been identified as “containing the submission of the proposal for consideration and approval” and it was so approved, Document 1 is not deliberative matter.
No evidence is provided for why Document 3 should be exempt from disclosure under s 47C.

s 47C and the public interest
No support or evidence is provided by the decision maker to justify the relevance of the factors identified as favouring disclosure. Nor is any effort made to explain why, on balance, disclosure would be contrary to the public interest.
In relation to Document 3, the decision maker states “In my view, there is little benefit in having a draft working document in the public domain that could be misunderstood.” As s 11B(4) of the FOI Act clearly states, it is irrelevant if “access to the document could result in any person misinterpreting or misunderstanding the document” when determining if disclosure would be contrary to the public interest.
The decision maker appears to have erred in thinking that they must determine if, on balance, disclosure is in the public interest. The relevant test is in s 11A(5) of the FOI Act:
“The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.”
The decision maker must make the case that disclosure is contrary to the public interest, and they have not done so here.

s 47E(d)
The decision maker has not provided evidence or argument in support of its claim that the documents should be exempt under s 47E(d). No explanation is provided about any adverse effect of disclosure, nor is evidence provided as to why such an effect would be substantial, nor is any attempt made to explain why the effect would be reasonably expected.
As the FOI Guidelines relevantly state at [6.103]:
“An agency cannot merely assert that an effect would occur following disclosure. The particulars of the predicted effect should be identified during the decision making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied upon, the relevant particulars and reasons should form part of the decision maker’s statement of reasons”

s 47G(1)(a)
The decision maker provided, in Appendix A, an alternative exemption they believe may apply to the documents, s 47G(1)(a) of the FOI Act.
As paragraph [6.185] of the FOI Guidelines helpfully states:
“it has been held that the business affairs exemption is not available to a person within a government agency or undertaking, nor to the agency or undertaking itself.[140] In other words, it is intended to protect the interests of third parties dealing with the government.”
As Beaumont J determined in Harris v Australian Broadcasting Corporation (1983) 78 FLR 236 (writing about the then s 43 of the FOI Act which equates to the current s 47G):
“it is a provision the object of which is to protect, within reasonable limits, the interests of third parties dealing with the agency or undertaking and supplying information to it in the course of that dealing”
Thus s 47G(1)(a) is not applicable to the documents in this case.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/b...

Yours faithfully,

Justin Warren

Dear FOI ABC,

As I have not received a response to my request for internal review within 30 days, under s54D of the FOI Act this is a deemed affirmation of the original decision.

I will now apply for IC review of this decision, and also make a complaint about the handling of my FOI request.

Yours sincerely,

Justin Warren