Yesterday, I walked into a taxpayer funded department and got myself a taxpayer funded salary. I got a taxpayer funded iPhone, laptop and iPad. I got a prestigious @gov.au email address or the like. I got a taxpayer funded car park and exclusive access to highly sensitive internal information that one could only glean through a taxpayer funded incumbency.
Today, I applied for leave after copying all of this exclusive, sensitive information and privileged access onto a USB drive. My intent of “taking” this data is to write a one-sided book on a person I don’t like very much for my own personal and commercial gain (and on a topic nobody else has had such unfettered, and taxpayer funded, access to). Only my taxpayer-funded contacts know what I’m up to; and they help me!
Maybe, I work for the ATO. And I’ve downloaded your personal business tax returns and done a book deal on my “expose” on you with Fairfax; err, sorry… Channel 9. No, maybe, I work for the NBN and I’ve set up a hub outside your home to monitor every site you browse. I’ve got it all on USB, I’m taking leave and I’m going to destroy you.
In each of these cases you, as the impacted citizen, could legitimately use an FOI process to determine if this was the case. In most cases you have substantial rights (unless it’s an Obama IRS scheme).
But not if you FOI’d the ABC. Their secrecy level, according to the FAQs at various Information Commissioner websites rank right up there with the Five Eyes Spying Program. You have very little chance of getting any information out of the ABC at all (who are also paid up members of the Right To Know Coalition).
This is usually because they hide behind the old “this relates to program material” defence (which has been upheld in at least four Federal Court cases; but I think this is till testable). And guess what, everything at the ABC relates to “program material;” including emails, notes, journals, discussions, discarded coffee cups and policies. Even Cabinet documents are released after a certain amount of time but not ABC’s “program material!”
The primary reason why the ABC doesn’t release “program material” is for fear of pilfering. Imagine of the evil Murdoch666 could FOI ABC program materials and then flog them off on Fox/Sky! (Ahem, he might make money on it; taxpayers might see returns!). Or Channel 10 wouldn’t have to pay millions for a Pointless exercise that doesn’t end up rating squat. The other reason is, simply, to hide from scrutiny.
But isn’t it ironic that the ABC use this as their defence against the evil Murdoch666 and others, but their own journalists are allowed access to it, use it freely and then even profit from it? And how many workplaces allow you to use work-derived IP for personal and commercial use? Particularly at the impost of the taxpayer?
So, in April 2017 I was surprised when Victoria Police made a surprise announcement about some charges they were going to be making. Strangely, on the very same day, a taxpayer funded person with access to exclusive taxpayer-funded information on the same topic brought forward their own personal book release announcement date. Odd. This got me interested.
This taxpayer-funded incumbent suddenly was not on leave anymore and was reporting and commenting on the situation; all whilst selling their book for personal and commercial gain. The incumbent was dutiful enough to take the publication out of one jurisdiction’s bookshelves and to cry “sub judice” if any questions were raised (but it was, and still is, available everywhere else and on eBay).
So, I decided to ask the ABC:
- If I could have FOI’d access to her emails to assess whether the ABC journalist profited personally and commercially from her exclusive access and taxpayer position in investigating the specific topical matter.
It only took the ABC six or more weeks to say “no, look away, nothing here folks.” There were no negotiations, it was simply “no.” The ABC bombarded me with a list of court cases that apparently set the precedent for not releasing any information.
So, I applied to the Office of the Australian Information Commissioner (OAIC) in July 2017. Over those months, the ABC Legal Team’s response erred on laughable. They couldn’t work out if this journalist was on leave to write a book, on secondment, had email access or not, had managerial approval or not, was allowed to do what she did or not… And at the end of the day this line was abandoned because these questions fell outside of the initial scope of the FOI request. Fair enough, I’ll just refine my scope for my next FOI request.
Notwithstanding the fact that my FOI request “went missing” for a while, it wasn’t until early 2018 that I started getting a steadier feed of reasons from the ABC for not releasing the information. In May the ABC offered mediation on the issue, but I was not about to take a Chamberlain-esque approach of appeasement on the matter and cave in. The ABC weren’t really offering anything but more reasons not to release the information.
Amongst the usual reasons for declining the FOI request, the ABC seemed to be clutching at some straws too. Three, laughable reasons for not releasing the information were:
- The release of the information would “destroy the Federative relationship between the States of Australia” (I’m dead-serious);
- The ABC would incur the wrath of the Royal Commission;
- There was a voluminous amount of material related to my FOI request and it would be an onerous task to work through it.
These reasons were, obviously, quickly abandoned and 13 months later, it’s August 2018 and the ABC still say “no” because this material is “program material.” Regrettably, the OAIC (have to) also agree as the FOI Act allows the ABC a Five Eyes Status. This is a problem with the ABC and the FOI Act.
The journalist in question continues to reap in revenue for her book. How much did she make? We will never know. She continues to commentate, at the very same time, on the topic at large for the ABC. The same journalist refuses to answer fundamental questions regarding inconsistencies in her book from the likes of Nancy.
Will taxpayers see any revenue? Will the ABC share the financial rewards of this pursuit? That’s also outside the FOI requirements I’m afraid.
If a taxpayer funded ABC “activist” does a hatchet job on you (while charging you for the pleasure) you have no action for recourse because, it’s likely, “program material” and therefore exempt from FOI.