[Note: The following document was lodged by EFA in the AAT, and provided to the ABA, in January 2001 and addresses the exemptions claimed by the ABA at that time. However, not all of the exemptions referred to in the below were addressed during the AAT hearing in July 2001. The ABA withdrew their exemption claim relative to Section 41 two days before the hearing, and relative to Section 37(1)(a) on the first morning of the AAT hearing, at which time the ABA advised they were instead claiming an exemption under Section 37(2)(b), as well as continuing to claim exemptions under Section 40(1)(d).]

23 January 2001

Administrative Appeals Tribunal Proceedings Q2000/979
Electronic Frontiers Australia Inc v Australian Broadcasting Authority
Statement of Facts and Contentions
- Electronic Frontiers Australia Inc

1. Summary

• The Australian Broadcasting Authority (ABA) has erroneously denied access to information contained in 141 documents.
• The ABA has adopted a construction of the Broadcasting Services Act 1992 ("BSA") that would extend the ABA's statutory functions and powers beyond the particular powers conferred upon it. The ABA's administrative powers under the BSA should be read in the context of FOI exemptions as limited to the particular functions conferred on it. It should not include any additional steps it may consider desirable to take in order to implement the objects and regulatory policy of the BSA.
• The statement of reasons given by the ABA lacks any details of the evidence on which its exemption claims are based.
• The ABA's application of the same reasons for exemption of information contained in all documents is an inappropriate class claim.
• The ABA has not correctly claimed the exemptions available under Section 37(1)(a) of the Freedom of Information Act ("FOI Act"). It cannot reasonably be expected that disclosure of the information in question would or could "prejudice" the ABA's administration of the law. The ABA's construction of its functions and powers relative to administration of the BSA is inconsistent with the intent of Parliament. The ABA's construction of the requirement for a "particular instance" is incorrect.
• The ABA has not correctly claimed the exemptions available under Sections 40(1)(d) of the FOI Act. Disclosure of the information in question cannot reasonably be expected to have a "substantial adverse effect" on the ABA's operations. It is reasonable to expect that any effect would be beneficial, rather than adverse, in promoting a stable and predictable regulatory regime.
• The ABA decision did not take into account all relevant factors, or did not afford them proper weight, in determining the public interest in disclosure as required by Section 40(2) of the FOI Act.
• The ABA has not correctly claimed the exemptions available under Section 41 of the FOI Act. The ABA's reasons for exemption of a public servant's name, in context of that person undertaking official duties, do not appear to meet the requirement that disclosure be "unreasonable".

2. Classes of Documents

The ABA has claimed the same reasons for exemption of information contained in 141 documents. This is an inappropriate class claim. The determination of whether a document is exempt or not should be a determination based on its contents rather than any readily acceptable class exemption (Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139).

The information in question consists of Universal Resource Locators (URLs), that is addresses such as <http://www...>, and subject/page titles of Internet content. Different regulatory policy applies to particular Internet content depending on its classification and where it is hosted. Different considerations should therefore apply to the question of whether identifying information about particular content should be disclosed under the FOI Act relative to the classification and hosting location of the content so identified.

Different considerations should apply to, at least, the following groups of documents:

(a) Documents that contain identifying information about content that is not either prohibited or potentially prohibited content:

• T7/127A, 128A and T9/160A, 161 - documents referring to content classified not prohibited by the Office of Film and Literature Classification ("OFLC");
• T7/75A, 102A - documents that apparently do not contain identifying information about prohibited or potentially prohibited content since the ABA has not provided copies of associated take-down notices or notices to filter suppliers or any similar advice;
• T7/78, 100A, 109A - documents the ABA contends are not complaints and therefore has not classified the content identified therein. Although the ABA contends these documents are outside the scope of EFA's FOI application, EFA's application was not limited to information about complaints that the ABA considered valid under clause 22 of the BSA.
• T7/53A - document identifying content the ABA did not investigate or classify as the ABA considered the complaint to be frivolous. Although the ABA contends this document is outside the scope of EFA's FOI application, it is with the scope of Item 'A' of EFA's application.

(b) Documents that contain identifying information about content classified R18+ that was hosted in Australia prior to the ABA issuing a take-down notice requiring deletion of the content, or requiring that access be made subject to an approved adult verification system:

• T7/49A, 93A, 129A and T9/162, 165 and T10/194, 195, 210

(c) Documents that contain identifying information about content classified X18+ or RC that was hosted in Australia prior to the ABA issuing a take-down notice requiring deletion of that content:

• T7/48A, 63, 107A, 111-123, 124A, 125A, 126 and T9/138-154, 155, 163,166 and T10/167-193, 196-209, 211, 212

(d) Documents that contain identifying information about prohibited content, classification unknown , that was hosted in Australia prior to the ABA issuing a take-down notice requiring deletion of that content:

• T7/108A, 130A-134A

(e) Documents that contain identifying information about prohibited or potentially prohibited content (classified X or RC) hosted outside Australia that the ABA notified the suppliers of Approved Filters to add to their filter block lists in order to prevent access:

• T7/ 50A, 54A, 55A, 60A, 65A, 66A, 67A, 70A, 72A, 74A, 77A, 83A, 84, 90, 95, 98A, 101, 104A, 135 and T9/164 and T11/213-226

3. Exemptions under Section 37(1)(a): "prejudice the "proper administration of the law in a particular instance"

Section 37(1)(a) states:
37 Documents affecting enforcement of law and protection of public safety

(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;

The ABA claims that disclosure of identifying information under the FOI Act would "prejudice the "proper administration of the law in a particular instance", that is the administration of the content regulation provisions of the BSA. The ABA's claim that this exemption applies appears to be based on three assumptions:

• that release of the identifying information "would enable an end-user to identify, locate and view content which was the subject of an investigation [by the ABA] and found to be potential or prohibited content" and that this would "prejudice" the performance of the ABA's statutory functions; and
• that the reference to "administration of the law" in section 37 (1)(a) of the FOI Act includes a duty to achieve the general policy objectives of the BSA, in particular "to restrict adult access to content that is likely to cause offence to a reasonable adult" and "to protect children from exposure to material that is unsuitable for children" (Section 3(l) and (m) of BSA); and
• that the requirement for prejudice in "a particular instance" is met in this situation by the FOI application itself and the alleged likely publication to the world of the content of the documents accessed.

(a) "Prejudice" to the ABA

The ABA decision does not provide any indication of how disclosure of the identifying information it has blacked out could in fact "prejudice" its administration of the BSA.

The ABA does not suggest, for example, that its enforcement activities would be made more difficult if the identifying information was released and/or published. There are apparently no investigations or other actions on foot. Rather, the ABA claims that disclosure "could be expected to seriously undermine" its ability "to advise and assist parents and responsible adults in relation to the supervision and control of children's access to Internet content" (Clause 94(b) of Schedule 5 of the BSA).

Unless this statutory function is actually "prejudiced" by the disclosure of the identifying information requested, this exemption should not be claimed.

During the Senate Committee of the Whole consideration of the Broadcasting Services Amendment (Online Services) Bill (Senate Hansard, p. 5156) on 25 May 1999, the meaning of Clause 94(b) was queried and subsequently responded to by the Minister as follows:

Senator LUNDY (Australian Capital Territory) (8.05 p.m.) - Minister, I am seeking more detail. I refer you to the explanatory memorandum for amendment No. 5 as provided by the government. There is a series of six dot points at the end of that, each going to specific initiatives. ... The next point is:

to advise and assist parents and responsible adults in relation to the supervision and control of children's access to Internet content.

What does that mean? Does it mean you are going to fund a campaign or specific initiative through television advertising or through the publication of glossy leaflets? What are you going to do to give effect to that point as described in the explanatory memorandum?

Senator ALSTON (Victoria - Minister for Communications, Information Technology and the Arts) (8.07 p.m.) - Essentially, the ABA will be in a position to direct people, either through its own web site or through the NetWatch arrangements that will provide a community mechanism for expressing concerns and, as parents seek further information, it will be made available to them.

(NetWatch, since re-named Net Alert, is a community advisory body appointed by the Government.)

The type of advice and assistance that the ABA provides to parents is evidenced on its web site in the section "What Every Family Should Know - Dealing With Risks" [1]. As at 21 January 2001, such advice included the following:

• "Parents can protect children from unsuitable material through supervision and guidance, see the tips for parents page for suggestions. Some parents, especially those with young children may also choose to use filters & label tools" [1];
• "None of these tools is foolproof ... the best protection is direct parental supervision" [1];
• "Some Internet content is prohibited or potentially prohibited. If you come across material that is unsuitable for children, offensive to adults or illegal ... If you wish you may report the address of these sites to the ABA's online - hotline" [1];
• "Filters and labelling tools don't replace the need for parental guidance in the home." "Under an industry code of practice developed by the Internet Industry Association and registered by the ABA, Internet service providers are required to provide their customers with an approved filter." [2]

The information in question consists of URLs (addresses) and page/subject titles of content that is not prohibited, or that is prohibited and has been the subject of a takedown notice issued by the ABA to relevant Internet Content Hosts and removed from their content hosting facility, or that has been notified by the ABA to approved filter suppliers for inclusion on their lists of blocked sites.

If adults have installed an approved filter that is required to be provided to them by Internet Service Providers in accord with the provisions of the BSA, it is reasonable to expect that content that could be accessible as a result of disclosure of identifying information would be blocked by such a filter. If parents and other adults have chosen not to voluntarily install an Approved Filter, this is not a matter enabling the ABA to claim "prejudice" to its functions.

It cannot reasonably be expected that disclosure of the identifying information would or could "prejudice" the ABA's advisory and assistance function set out in Clause 94(b). In fact, it would have no effect whatsoever.

(b) "Administration of the law"

The ABA makes particular mention of its duties under Clause 94(b), as noted above, and its general duty under Section 160 to perform its functions consistently with the objects and regulatory policy of the BSA. The ABA's administrative powers under the BSA should be read in the context of this FOI exemption as limited to the particular functions conferred on it. It should not include any additional steps it may consider desirable to take in order to implement the objects and regulatory policy of the BSA.

It is clear that the Parliament, and the Minister, had no intent directed to preventing the general community from being aware of details about and descriptions of classified content. This matter was raised during the Senate Committee of the Whole consideration of the Broadcasting Services Amendment (Online Services) Bill 1999. Senator Brown raised that the OFLC online database may contain "specific titles of classified material that perhaps, by their offensiveness, could be taken as infringing" the legislation under discussion and questioned whether such information would be subject to censorship.

Relevant extracts in that regard from the Senate Hansard of 25 May 1999 (page 5104-5105) are provided below:

Senator BROWN (Tasmania) (12.49 p.m.) - This is one of the hazards of the legislation - that there is potential trammelling of such a database so that citizens cannot see what is the outcome of the process of censorship and classification itself. The government needs to be very wary of that. To restrict that database from being accessible and online is to put a layer of censorship onto censorship itself. The government ought to be very clear that that is not going to happen and that such a position could not arise because otherwise we are moving into a system of secrecy which has no public review.

Senator ALSTON (Victoria - Minister for Communications, Information Technology and the Arts) (12.50 p.m.) - ... [A] legitimate concern is to ensure that a description of the material does not disappear from public view. There could not be any offence taken by being able to access a site that described the material or gave details of any take-down orders or the whole circumstances in which the material had found its way onto the classified lists. So there is no intention to somehow ensure that people are unaware.

I am not quite sure why they would have such an interest in being aware of what had been banned. Obviously the stakeholders would have a direct interest and immediate knowledge from the outset. There probably is some legitimate interest in the general community in knowing the description...

Senator BROWN (Tasmania) (12.52 p.m.) - Just to be clear about this, in the opinion of some people, it is the specific titles of classified material that perhaps, by their offensiveness, could be taken as infringing. I will not outline such titles, but you know the sorts of titles to which I refer which have led to material being restricted or prohibited. It is one of these cases where the government has to be very careful, through the nature of the proscription it is putting forward, not to trammel, through censorship, access to public review and understanding and information regarding what has been classified. In the minister's last response he gave an assurance that that will not happen, and I would be glad to hear him repeat that.

Senator ALSTON (Victoria - Minister for Communications, Information Technology and the Arts) (12.53 p.m.) - What I said was that I think it is legitimate to have a description of the material so that you can identify it. But that should not be seen as a means of promoting what would otherwise clearly be a highly offensive, sacrilegious and totally unacceptable form of words being used to describe a web site. I suppose it is unlikely and would be quite unusual, but you should not rule out the possibility that someone might be perverted enough to call a web site by the most offensive title. Just thinking about it, there is probably no restriction on the number of words in a title, so you could have a sentence or a paragraph that was utterly offensive to every decent thinking citizen and would be perhaps criminal in its formulation.

In those circumstances, I think it would simply be condoning an illegal practice to allow that to be posted by way of a title when it would not be able to be posted in any other form. So, if it is illegal in the physical world, there is no good reason why you would allow it in the online world simply because someone chose to use it as the title for a bad web site.

It is clear that the Minister and Parliament intended that a "description of the material so that you can identify it" would be available to the public, except in the unlikely circumstances of the actual title containing a form of words that is clearly "highly offensive, sacrilegious and totally unacceptable".

The ABA claims that it would undermine the proper administration of the BSA to make available identifying information about Internet content that it is the policy of the BSA to regulate, in view of two particular objects of the BSA as set out in Section 3 thereof:

(l) to restrict access to certain Internet content that is likely to cause offence to a reasonable adult; and

(m) to protect children from exposure to Internet content that is unsuitable for children

because, the ABA asserts, release of identifying information "would enable an end-user to identify, locate and view" content that the ABA had found to be prohibited or potentially prohibited content.

The ABA has provided no explanation of how disclosure would enable access to content in a manner that is inconsistent with the regulatory powers conferred on the ABA.

It has not claimed that its administration of the take down notice provisions of the BSA would be affected. It has not claimed that its ability to enforce compliance with the registered Industry Code, under which Internet Service Providers are required to provide their customers with an Approved Filter, would be affected, nor that its administration of the "designated notification scheme", by which the ABA notifies approved filter suppliers of content to block, would be affected.

The provision by Internet Service Providers of an Approved Filter to their customers is a designated alternative access-prevention arrangement declared in the industry code registered by the ABA. The BSA provides that an industry code developer must not declare that a specified arrangement is a designated alternative access-prevention arrangement unless the developer is satisfied that "the arrangement is likely to provide a reasonably effective means of preventing access [by end users] to prohibited content and potential prohibited content" (Clause 60(4)).

Clause 62 of the BSA provides that, in registering an industry code, the ABA must be satisfied that the code "provides appropriate community safeguards" and is consistent with the statements of regulatory policy in Clause 59 and the requirements of Clause 60. Clause 60 concerns, inter alia, procedures to be followed by Internet Service Providers relative to restricting access to Internet content that the ABA has found to be potentially prohibited, or prohibited.

The ABA decision suggests they consider their function requires actual prevention of access rather than restriction of access (the latter as stated in the objects of the BSA). The ABA's apparent view is inconsistent with the statements of the Minister during the Senate Committee of the Whole consideration of the Broadcasting Services Amendment (Online Services) Bill on 25 May 1999 (Senate Hansard, page 5156). The Minister stated:

Senator ALSTON (Victoria - Minister for Communications, Information Technology and the Arts) (8.04 p.m.) - ...there are very many organisations and service providers offering a range of filtering technologies or access to ISP controlled blocking devices. We certainly think that there should be the opportunity taken to ensure that parents understand what is available to them, but at the end of the day this legislation is designed to ensure that there are minimum provisions put in place to ensure that people do not accidentally come across material, through either ignorance or a feeling of uncomfortability about technology. We believe that the combination of those measures will be sufficient to ensure that we get the maximum level of community protection.

It seems beyond doubt that the Parliament intended that the ABA's powers be limited to implementing mechanisms "likely to provide a reasonably effective means of preventing access" to ensure "people do not accidentally come across material " and that these comprise ABA issue and enforcement of takedown notices relative to content hosted in Australia and ABA approved and enforced industry codes (or in the absence of such a code, ABA developed industry standards) relative to content hosted outside Australia.

If the regulatory/enforcement powers conferred upon the ABA do not achieve the policy objectives Parliament intended that is not a ground for the ABA to claim that its administration of the BSA is affected by disclosure under the FOI Act of the information in question.

Furthermore, the ABA's administrative functions under Clause 94(b) of the BSA to advise and assist parents should not be widened to include a duty to act effectively "in loco parentis", and especially not in relation to MA15+ and R content. The BSA does not provide a mechanism for protecting children from accessing content that is classified MA15+, although the ABA has denied access to some identifying information about MA15+ content. In relation to content investigated by the ABA and classified R, it is reasonable to expect that such content has been taken down, or access to it has been made subject to an approved adult verification system. Content hosted outside Australia that is or would be classified R is not subject to the legislation at all, that is, the ABA is not empowered undertake any steps directed to restricting access to it by adults or children.

With regard to the ABA's assumption that EFA intends to indiscriminately publish information identifying prohibited or potentially prohibited content and that this would become available to children, even if EFA decided to publish any information after reviewing it:

a) the information in question merely identifies the prior address of content that has been taken down, or an address that should have been notified by the ABA to filter suppliers for inclusion on the block lists of approved filters required to be provided by ISPs to their customers. Material unsuitable for children is readily available to any child whose access is not subject to either an approved filter or other filtering software, as well albeit to a lesser extent to children whose access is subject to filtering software.

b) publication of a list of addresses identifying content unsuitable for children on a web page would be extremely likely to result in the addition of that web page, and quite possibly the entire web site containing that page, being added to filter block lists in the course of filter suppliers' normal commercial activities;

c) there is no legislative or other provision prohibiting any person, including Internet Content Hosts who receive ABA takedown notices and content providers whose content is taken down, from publishing addresses of content taken down.

d) The Minister said during the Senate Committee of the Whole consideration of the Bill (as referred to earlier herein) that "There could not be any offence taken by being able to access a site that described the material or gave details of any take-down orders or the whole circumstances in which the material had found its way onto the classified lists. So there is no intention to somehow ensure that people are unaware."

(c) "A particular instance"

The Explanatory Memorandum for what is now section 37(1) of the FOI Act states that this exemption is concerned with "more sensitive areas of law enforcement". The EM goes on to say in respect of the sub-section (2) that it "exempts documents the disclosure of which would prejudice general investigations concerning breaches or evasions of the law (ie. other than investigations into specific breaches ")".

This suggests that the ABA's construction of the requirement for a "particular instance" is incorrect. Parliament's original intention would seem to have been to distinguish between general law enforcement functions and specific investigations. The ABA's decision is that the application under the FOI Act fulfills the requirement for a "particular instance". This would mean that the criterion of a "particular instance" would be fulfilled in every FOI application, rather than in respect of a particular case or at least a particular administrative process (such as the process of investigating sites and issuing take down notices).

4. Exemptions under Section 40(1)(d): "reasonably be expected to "have a substantial adverse effect on the proper and efficient conduct of the operations of an agency ""

Section 40 states:

(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

...

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; ...

(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

The ABA has concluded that the release of "details" of prohibited or potential prohibited Internet content "could reasonably be expected to "have a substantial adverse effect on the proper and efficient conduct of the operations of an agency "" (Section 40(1)(d)).

(a) "substantial adverse effect"

The ABA has provided no evidence to show that it is reasonable to expect that the way in which the ABA carries out its functions would have to be changed to its disadvantage, nor that any such change would have a substantial adverse effect on its operations.

In the case of Re Harris v Australian Broadcasting Corporation (1983) 50 ALR 551, a "substantial" adverse effect was held to be a serious or significant one. Although this case was in relation to the business affairs exemption under the FOI Act, the meaning of the words should be interpreted in the same way for this exemption. The ABA has not demonstrated in its decision how its core functions would be affected in a serious or significant way. Beaumont J in Harris (at 564) also stated that: "the insertion of the requirement that the adverse effect be "substantial" is an indication of gravity that must exist before this exemption can be made out". His Honour went on to say in Williams and Registrar of the Federal Court (1985) 8ALD 219 at 222 that the difficulties in establishing that "substantial adverse effects" will occur would be "formidable".

In Peter John Bayliss v. Department of Health and Family Services (unreported, AAT Decision No. 12277, 10 October, 1997), Forgie S A said:

"47. While in the case of Morris and others and Australian Federal Police (unreported, Decision No. 10120, 7 April, 1995), I said that...I would follow [Re Thies and Department of Aviation (1986) 9 ALD 454], I have thought further about the matter. It seems to me that the ordinary meaning of the words "substantial adverse effect" leads to a conclusion that something more than "concern" is required before the adverse effect can be said to be a substantial adverse effect. Concern may be generated by matters of many differing degrees of gravity. What is required by the exemption in paragraph 40(1)(d) is made out is an adverse effect that is real or of substance and not that which is insubstantial or nominal. That is consistent with the judgements of Federal Court in Ascic and in Tillmans Butcheries by both of which I am bound."

In the absence of any reasonable argument about how releasing details of the type of content the subject of the BSA regulatory action could have a "substantial adverse effect" on the way the ABA is able to perform its core functions, a decision-maker should not be able to claim this exemption.

In its original decision, the ABA stated that "the operations of the ABA are aimed at preventing access to prohibited material on the Internet, rather than in facilitating or promoting access" and that "[d]isclosure of the information in question would directly affect the ongoing conduct of the ABA in respect of its duty under sub-section 5(1) of the BSA to produce regulatory arrangements that are stable and predictable and deal efficiently with breaches of the legislation".

The ABA has provided no explanation of how releasing identifying information could destabilise the regulatory regime it administers other than to claim that it could "facilitate" or "promote" access to potential prohibited or prohibited internet content. The regulatory powers of the ABA relative to restricting access are: (1) in the case of content hosted in Australia, to issue a takedown notice to the Internet Content Host requiring the content to be deleted and to enforce compliance and (2) in the case of content hosted outside Australia, in accord with the ABA approved Industry Code, to notify approved filter suppliers to add identifying information about the content to their block list so that these filters, which Internet Service Providers are required to provide to their customers, block access to that content. In addition, the ABA is empowered to issue and enforce an industry standard should an approved industry code be found to be deficient.

It appears, therefore, that the ABA has failed to take into account that the information in question should not be able to "facilitate" access to potential prohibited or prohibited internet content in a manner that is inconsistent with the regulatory powers conferred on the ABA.

We submit that, even if release of the identifying information did facilitate access, this would actually promote a stable regulatory regime. Access to Internet content that the OFLC or ABA has classified would enable content providers and Internet Content Hosts to have a clearer understanding of how the Film and Video Classification Guidelines are being applied to text and static images on the Internet, thereby facilitating their compliance with the Guidelines, and potentially minimising the number of complaints that the ABA would be required to handle. In this regard, OFLC classification decisions in relation to computer games, films, videos and publications (but not Internet content) are searchable on the OFLC website. Access to this OFLC database is available free of charge and enables any member of the public, including persons under the age of 18 years, to find out the names of R, X and RC material and possibly access it.

We consider that even if the ABA is able to support its assertion that disclosure of identifying information about prohibited and potential prohibited content would prejudice its activities, disclosure of identifying information about non-prohibited content and content classified R (see Section 3(b) hereof) would not prejudice its activities it any meaningful way.

In its internal review decision, the ABA stated that "the release of such information would have a substantial adverse effect on the implementation of Schedule 5 of the BSA, in that it would undermine the effective use of approved filters in accordance with the designated notification scheme contained in the code of practice for Internet service providers".

The ABA has provided no explanation of how the effective use of approved filters could be undermined.

If an approved filter does not prevent access to content notified to the filter supplier by the ABA then either the filter is not fit for purpose, or the filter supplier has failed to comply with undertakings to add notified content to their filter's block list, or the designated notification scheme by which the ABA notifies filter suppliers of prohibited or potentially prohibited content is deficient.

We submit that, even if release of identifying information resulted in findings that approved filters were not blocking access, this would actually promote a stable regulatory regime because:

• if approved filters were found not to block Internet content notified by the ABA, then the ABA could, and in fact should, undertake action to have such filters removed from the approved list;
• if content the subject of a takedown notice continued to be hosted in Australia, the ABA could, and in fact should, proceed with action against the Internet Content Host for breach of the legislation;
• if prohibited Internet content was found to have been relocated to a hosting service outside Australia, the ABA could, and in fact should, notify approved filter suppliers to block access.

We submit that disclosure of the identifying information cannot reasonably be expected to have a "substantial adverse effect" on the ABA's operations, and that it is reasonable to expect that any effect would be beneficial, rather than adverse, in promoting a stable and predictable regulatory regime.

(b) "public interest"

In the event that the ABA is able to reasonably support its assertions about the operational effect of disclosure, we submit that the ABA decision did not take into account all relevant factors, or did not afford them proper weight, in determining the public interest in disclosure as required by Section 40(2).

The ABA has decided that there is a strong public interest in ensuring that the ABA is fulfilling its responsibilities in a proper manner, with competence and diligence, but that this is adequately met by other mechanisms. The mechanisms identified by the ABA are:

• the ABA is accountable to the Minister and the Parliament; the Minister will report to Parliament every six months on the operation of the scheme;

While the ABA is accountable to the Minister and Parliament, it is also subject to the FOI Act for the same reasons as other equally diligent agencies. The ABA does not have exemption from the provisions of the FOI Act under statute, and has not identified any unique reason to discharge its statutory functions in secrecy.

• aggregated data on complaints is made available to the public via quarterly and annual reports;

As at 18 January 2001, the last quarterly report made available to the public was for a period ended over six months previously, that is, 30 June 2000. In any case such reports do not contain information requested in the subject FOI application.

• "certain decisions" of the ABA may be reviewed by the AAT; and

Our understanding of the provisions of the BSA is that the AAT is not empowered to review the merits of actual classification decisions made by the ABA. This interpretation is consistent with the fact that the Federal Court, upon an application for judicial review of a classification decision of the OFLC Classification Review Board "is not to substitute its own assessment of the publication for that of the Board". (Michael Brown & Ors v Members of the Classification Review Board of the Office of Film and Literature [1998] 319 FCA).

• "decisions of the Classification Board under Schedule 5 of the BSA, upon which certain decisions of the ABA are based, may be reviewed by the Classification Review Board".

The ABA is empowered by the BSA to classify content hosted outside Australia without obtaining a classification from the Classification Board. The ABA's own classification decisions, while they may be "based" on decisions made by the Classification Board about different content, are not reviewable by the Classification Review Board.

The ABA has also decided that there is a public interest which does not favour disclosure "relating to the ABA's ability to carry out its statutory duties, that is, to provide a mechanism to protect children from prohibited and potential prohibited content and to restrict access to content which is likely to cause offence to a reasonable adult".

We submit that the public interest in the above regard favours disclosure rather than non-disclosure. The principle "mechanism" available under the BSA as implemented by the ABA for protecting children is the voluntary installation (by parents or other supervisors such as schools) of approved filters that ISPs are required to provide to their customers. While the legislation and approved filter list have been in place for over 12 months, the filters were not tested for fitness for purpose prior to approval and have not been tested since. There is a question of whether approved filter suppliers are in fact adding content notified by the ABA to their block lists and if they are not than this "mechanism" is deficient. For example, as at 16 January 2001 the block list for the approved filter "Net Nanny" available on its web site [5] was dated 16 October 2000. (This issue and fact was raised, most recently, by journalists in the Brisbane Courier Mail report "Censors and Sensibility", 13 January 2001 [3]). While it may be that Net Nanny was already blocking content notified to them by the ABA prior to receipt of any notices the ABA has issued since October, it may also be that their block list is not being promptly updated. It is appropriate to bear in mind that the suppliers of most "approved filters" are located overseas and thus cannot be forced by Australian law to block content notified to them by the ABA or any other Australian regulatory authority. Disclosure of identifying information in a timely manner would enable responsible adults to check the fitness for purpose of an approved filter prior to relying on it as a mechanism for protecting children from content found to be potentially prohibited by the ABA and at appropriate intervals thereafter.

We also submit that the ABA should have taken into account the following matters favouring disclosure in the public interest:

• Disclosure of identifying information about Internet content that the OFLC or ABA has classified, if it did facilitate access to that content, would enable Internet Content Hosts and content providers to gain a clearer understanding of how guidelines developed for moving images and sound in films and videos are being applied to text and static images on the Internet. This would be in the public interest in that it would facilitate compliance with the Guidelines and the intent of the BSA relative to content hosted in Australia that would be subject to takedown notice if found not to comply with legislation. This would be "an aid to the proper administration of the law just as the 'Traffic Camera Ahead' sign deters the would be runner of the red light and so aids the proper administration of the traffic laws" ( Peter John Bayliss v. Department of Health and Family Services, unreported, AAT Decision No. 12277, 10 October, 1997).
• It is in the public interest that citizens have access to government held information that would enable them to engage in democratic debate relative to the merits or otherwise of classification and/or censorship decisions of government agencies. This has long been an accepted fact in Australia in relation to censorship of films, videos, computer games and publications. For example, the OFLC Classification Board publishes identifying information, on its web site, about the material it has classified and/or banned together with the classification of same. The potential for the legislation to lead to a censorship system of secrecy which has no public review was raised and discussed during Senate Committee of the Whole consideration of the Broadcasting Services Amendment (Online Services) Bill (Senate Hansard), as referred to in detail in Section 3(b) hereof. It is clear that the Parliament, and the Minister, had no intention of preventing the general community from being aware of details/descriptions of classified material and recognised the public interest in the general community having such information.
  
  The ABA has contended that prohibited content may be "highly offensive" as a ground for denying access to identifying information. The OFLC Classification Board took such a view about the film "Romance" when it decided the film would "offend against the standards of morality, decency and propriety generally accepted by reasonable adults" and classified it RC, thereby banning it, in January 2000. Considerable public debate subsequently occurred showing that many citizens considered the Board's opinion and decision was wrong. The Classification Review Board then overturned ban and classified the film R18+. There is no evidence in the Parliamentary Debates (Hansard) concerning the Broadcasting Services Amendment (Online Services) Bill, nor in the Revised Explanatory Memorandum or final legislation, to suggest that the Parliament intended that the ABA become the only classification agency that does not identify what has been censored nor that its classification decisions should not be subject to public scrutiny like those of other classification agencies. The Parliament's intent was specifically to the contrary.
• There has been serious public debate about, and concern with, the issues with which the information in question deals, for example, the effectiveness of Approved Filters and the secrecy of the ABA's and OFLC's decisions on classification of Internet content when compared to the openness of OFLC's classification decisions relative to classifications of computer games, films, videos and publications. It is clearly established that the public interest is not synonymous with government interest (Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659).

The ABA's assertion that disclosure is contrary to the public interest has been premised primarily on the fact that some parents and/or other responsible adults may have chosen not to install an Approved Filter required to be provided to them by Internet Service Providers in accord with the industry code registered by the ABA. There is no law requiring parents or other adults to install and/or use an Approved Filter and some parents may consider that the disadvantages of filters outweigh the advantages (a matter that has been and continues to be the subject of much public debate). That some responsible adults may not agree with the suggestions of government or its agencies relative to managing children's access is not sufficient to support a contention that the public interest balance lies strongly against disclosure of identifying information.

In the event that it is considered that the public interest in protecting children outweighs other public interest factors such a consideration should not be applied to identifying information in all documents in question as one class. For example, there is no evidence that the Parliament intended that the functions conferred on the ABA would even attempt to protect children from accessing content classified R, MA15+, or lower, other than in relation to R classified content hosted in Australia which is subject to takedown if access is not subject to an adult verification system.

5. Exemptions under Section 41: documents affecting personal privacy

Section 41 states:

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

The ABA has denied access to "personal information" about an ABA officer involved in investigating Internet content (T 135). The ABA decision indicates that the only "personal information" in the document is the officer's name. The ABA asserts that "The information would disclose information about or the opinion of that officer as to relevant sites which that officer considered worthy of notice as possibly containing material which could amount to prohibited content...". However, an officer's opinion about Internet content is not "personal information" as defined in the FOI Act. The definition concerns "an opinion...about an individual".

The reasons provided by the ABA for exemption of the officer's name do not appear to meet the requirement, in claiming this exemption, that disclosure be "unreasonable".

The cases the ABA cites in its decision are not directly relevant to the removal of the names of public servants, other than some tax cases. There are also tax cases which have held tax officer names should be included in documents released by the ATO (eg: Re Collie and Deputy Commissioner of Taxation 45 ALD 556).

The ABA decision indicates the exemption is claimed with intent of protecting anonymity of an ABA officer undertaking official duties. Although Section 41 of the FOI Act has been amended so it no longer refers to "personal affairs", cases such as Commissioner of Police v DC of New South Wales and Perrin (1993) 31 NSW Law Reports 606 remain relevant in determining what is "unreasonable" in the case of public servants performing their normal duties. In the Perrin case Kirby P stated that FOI was not intended to protect the traditional anonymity of public servants. He held that the name of an officer doing no more than the apparent duties of that person could not properly be classified as information concerning the "personal affairs of that person".

More recently, in Peter John Bayliss v. Department of Health and Family Services (unreported, AAT Decision No. 12277, 10 October, 1997) Forgie S A (Deputy President) stated:

"Where officers of the Department or of the ACS [Australian Customs Service] are named, I do not find that disclosure of their names would be an unreasonable disclosure of personal information about them. Any such individuals are acting in their roles as officers of their organisations and there is nothing on either the face of the document or in the evidence that supports a finding that disclosure of their names would be unreasonable."

The possibility that release of an officer's name could lead to embarrassment for the particular officer, as claimed by the ABA, is not a serious one and is based on complete speculation about both the likelihood of EFA publishing the officer's name and the likelihood of such an officer being ridiculed. Further, it is clear that Section 41 is intended to protect individuals' privacy and is not about protecting people from potential defamation (Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257).

The ABA states that "From a consideration of [EFA's] website and the manner of publication of such correspondence emanating from the ABA it appears to me entirely reasonable to conclude that one motive of such publication is to seek to bring the ABA, and in the case where an officer is named, I consider, such officer, into a situation of embarrassment or ridicule. Such an intention might no doubt appear reasonable from the point of view of the applicant, but from the point of view of an officer exposed to such potential conduct, it does not appear to me to be in any sense a reasonable use of that personal information."

While the motive and intent of an FOI applicant is irrelevant, since the ABA asserts it is relevant "in considering the reasonableness or unreasonableness of disclosure" of the name of an ABA officer, we submit that in order to deny disclosure of information under FOI based on speculation about EFA's motive or intent the ABA should be required to provide evidence in support of their allegations. The mere fact that EFA has published official correspondence between the ABA and EFA concerning the subject FOI application, up to and including the ABA's Internal Review decision, does not show that the ABA or any of its officers has in fact been subject to embarrassment or ridicule as a result and we are not aware of any evidence that they have been. If the ABA is of the view that any information published by EFA is not factual, they have been at liberty for some months to draw any such claim to EFA's attention and request correction, or publish a rebuttal themselves. They have not done either and we assume this is because the information is factual. Furthermore, if there has been any such effect of which EFA is not aware, the ABA should at the least be required to provide evidence that same arises from "the manner of publication" by EFA rather than from the ABA's own official statements and actions and/or the actions of the Parliament that empowered the ABA to implement and enforce the BSA. The exemptions in the FOI Act were not intended by the Parliament to protect either the government or government agencies from embarrassment or ridicule.

Furthermore, the information already disclosed by the ABA under FOI shows that the investigation undertaken by the subject ABA officer arose from a complaint made by a non-Australian resident. The BSA provides that the ABA is only required to act on complaints lodged by Australian residents, yet according to the subject T document, the ABA acted on a complaint lodged by a non-Australian resident. If EFA's motive in seeking information under the FOI Act was to subject the ABA and/or its officers to embarrassment or ridicule, it would appear that this could potentially be achieved by publicly highlighting the foregoing fact. EFA has not done so.

In addition, there is the requisite public interest in disclosing the name of public servants in the ordinary course of performing their duties (Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429). For example, an ABA officer involved in investigating Internet content for classification purposes performs a similar function to members of the Classification Boards of the Office of Film and Literature Classification ("OFLC"). While OFLC officers classify Internet content hosted in Australia, ABA officers are themselves empowered to classify Internet content hosted outside Australia themselves. Unlike the names of ABA classification officers, the names of OFLC classifiers are published by the Government in media releases issued by the Attorney General and in OFLC Annual Reports, apparently because the OFLC and/or Government considers it to be in the public interest to disclose the names of such officers. Such publications normally contain not only the OFLC officers' names, but other personal information about them including age, prior occupations, number and ages of children, etc. In addition, the classification opinions of individual OFLC officers have been made publicly available by the Government from time to time (see, for example, opinions of individual OFLC classifiers in relation to classification of the film Salo in the official Hansard transcript of the Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies hearing held on 5 August 1993).

We submit that there is no reason to treat the names of public servants involved in investigation and/or classification of Internet content any differently to the names of those involved in classification of off-line content. We have not sought access to information about the personal and family affairs of an ABA officer, merely access to a complete copy of a document that apparently happened to contain a public servant's name.

Appendix 1 - Caselaw Referenced

Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429

Commissioner of Police v DC of New South Wales and Perrin (1993) 31 NSW Law Reports 606

Michael Brown & Ors v Members of the Classification Review Board of the Office of Film and Literature [1998] 319 FCA

Peter John Bayliss v. Department of Health and Family Services, unreported, AAT Decision No. 12277, 10 October, 1997

Williams and Registrar of the Federal Court (1985) 8ALD 219 at 222

Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659

Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257

Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139

Re Collie and Deputy Commissioner of Taxation 45 ALD 556

Re Harris v Australian Broadcasting Corporation (1983) 50 ALR 551

Appendix 2 - References

1. Australian Broadcasting Authority, What Every Family Should Know - Dealing With Risks (Online), Available World Wide Web:
URL: http://www.aba.gov.au/family/family/dealing_risks.html (Accessed 21 January 2001).

2. Australian Broadcasting Authority, What Every Family Should Know - Filters and Label Tools (Online), Available World Wide Web:
URL: http://www.aba.gov.au/family/family/tools.html (Accessed 21 January 2001).

3. Chester, Rodney & Wardill, Steven 2001, Censors and Sensibility, Brisbane Courier Mail, 13 January 2001.

4. House of Representatives, Revised Explanatory Memorandum, Broadcasting Services Amendment (Online Services) Bill 1999, June 1999, Available World Wide Web:
URL: http://scaleplus.law.gov.au/html/ems/0/1999/0/0642404224.htm (Accessed 20 January 2001)
(This Memorandum takes account of amendments made by the Senate to the Bill as introduced).

5. Net Nanny, Update Lists for Net Nanny 3 (Online), Available World Wide Web:
URL: http://www.netnanny.com/prod_NN3_UpdateLists.asp (Accessed 20 January 2001).

6. Senate Parliamentary Debates, Committee of the Whole consideration of the Broadcasting Services Amendment (Online Services) Bill, Senate Hansard, p. 5104, 5105, 5156, 25 May 1999. Available World Wide Web: URL: http://www.aph.gov.au/hansard/senate/dailys/ds250599.pdf (Accessed 4 June 1999)

7. Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies, Transcript of Public Hearing on the subject of computer and video games and the matter of the release of film 'Salo', Committee Hansard, 5 August 1993.

  23 January 2001