FOI Application: OFLC 2002
Last Updated: 2 July 2002
In February 2002, EFA lodged a Freedom of Information Application on the Office of Film and Literature Classification ("OFLC"). The OFLC released a variety of information to EFA in late May 2002.
The purpose of the FOI request was, among other things, to obtain information about Internet content that the Australian Broadcasting Authority (ABA) submitted to the Office of Film and Literature Classification and was classified PG, M or MA15+, and why the ABA spends taxpayer funds on classification of PG content, given the supposedly wide boundary between PG content and content that is prohibited online under the law the ABA administers.
- FOI Application
- EFA Report on Findings
EFA FOI Application
- 27 February 2002
EFA FOI application to OFLC requesting, inter alia, copies of:
- applications and Classification Board reports concerning Internet content classified PG, M or MA during the year ended 30 June 2001,
- document/s detailing the protocols agreed between the OFLC and the ABA concerning online provision (e.g. in the OFLC online classification database) of OFLC classification decisions made under the Online Services Act/BSA,
- documents (including copies of pages from OFLC procedure manuals or the like, memos to staff and/or Board members, etc) detailing the criteria or guidelines used by the OFLC to determine the appropriate fee for classification of Internet content.
Related EFA / OFLC Correspondence
- 4 March 2002
OFLC letter acknowledging receipt of the application.
- 25 March 2002
OFLC letter advising the estimated cost of processing the application was $931.07. The OFLC advised they had located 18 files relevant to the request containing a total of approximately 217 folios and envisaged 57 folios being released in full plus 17 folios with deletions and it was estimated that "it will take approximately 45 minutes to search each file and tag relevant folios" and "it will take approximately 15 hours to examine relevant folios for decision making".
- 11 April 2002
EFA letter to OFLC:
- querying the charges because the number of hours stated multiplied by the prescribed hourly fees resulted in a charge of $510 not $931, and
- requesting non-imposition or a reduction in charges on the grounds that "giving of access to the document[s] in question is in the general public interest or in the interest of a substantial section of the public" as provided for in Section 29(5)(b) of the FOI Act. EFA's letter included detailed information on the public interest grounds that EFA considers applicable.
- 6 May 2002
OFLC letter to EFA:
- stating that the estimated charge of $931.07 was correct. The OFLC said that decision making time was estimated at 33 hours, not 15 hours as previously advised; and
- declining EFA's request for non-imposition or a reduction in charges on public interest grounds. The OFLC said they "do not find that there is a general public interest in providing access to the documents in question".
- 13 May 2002
EFA letter requesting an estimate of charges applicable if EFA withdrew the request for Item 4: "document/s detailing the protocols agreed between the OFLC and the ABA" for provision of information to the public about OFLC classification decisions of Internet content. The OFLC had verbally advised that almost half of the cost concerned processing Item 4 which involved some 120 folios, few if any of which would be released. (See Finding 3 below, regarding these mysterious "protocols".)
- 15 May 2002
OFLC letter advising that, if Item 4 was withdrawn, the revised estimated cost would be $535.62, i.e. $400 less, 19 hours less decision making time involved. EFA withdrew the request for Item 4 documents. (See Finding 3 below, regarding these mysterious "protocols".)
- 21 May 2002
OFLC letter containing decision and schedule of documents to be released or claimed to be exempt.
- 24 May 2002
OFLC letter attaching copies of documents released.
OFLC FOI Decision
Documents Released or Exempt
The OFLC advised that "60 documents comprising 94 pages have been identified as falling withing the scope of the revised request" and that of the 94 pages: 17 pages would be released in full, 51 released with deletions and 26 would not be released.
For each of the 17 items of Internet content, the OFLC identified 5-6 pages which comprised:
- ABA Online Services Referral Check List
17 pages released in full. (See sample).
- Classification Board Report
51 pages. Each Report comprises 3 pages: 1 released in full, 2 with deletions. (See samples: Page 1, Page 2, Page 3).
- Individual Board member notes
26 pages said to be exempt in full. The OFLC Schedule of Documents indicates the 26 exempt pages consist of 8 pages comprising one page of notes for each of 8 items classified by only one Board member, and 18 pages comprising one page of notes by each of two Board members who classified the other 9 items.
For details of information released, see separate page OFLC Classification Decisions - Internet Content containing samples of documents released and extracts from the 17 Classification Board Reports regarding the reasons for the classifications given to the 17 items of Internet content.
Exemptions were claimed under sections 41 and 40(1)(d) of the FOI Act. The OFLC said the exempt information:
"consists of personal details, such as Board member names. In the context of the documents, release of the names would identify which Board members took part in certain Board decisions and what classification each Board member voted for. These pieces of information, when pieced together, are likely to reveal personal characteristics and values of individual board members."
The OFLC said release of the information would have a "substantial adverse effect upon the OFLC and the Classification Board's operations".
The exemption claims are contrary to an OFLC FOI decision in 2000 at which time the OFLC provided EFA with the reports written by individual members of the Classification Board in relation to their classification of the film "Romance". In that instance, the names of the individual members were blacked out on the reports provided. In the case of classification of Internet content, the OFLC has refused to provide reports written by individual Board members at all (i.e. even with names blacked out).
EFA Report on Findings
- The ABA has difficulty applying classification guidelines designed for movies to Internet content, for example, whether web pages and images "would be" classified PG (parental guidance) or RC (banned).
- The OFLC considers that providing information that would assist law-abiding Internet publishers to understand how movie guidelines are applied to online content, and thereby assist them to comply with the law, is not in the public interest.
- "Protocols" that allegedly have been agreed between the OFLC and ABA, for making information about classification decisions of Internet content available in the OFLC's online database, either do not exist or would take the OFLC 19 hours to find and decide whether or not to release same under FOI.
- The OFLC is unable to provide documents detailing criteria used by the OFLC to determine the classification fee for Internet content that consists of a web site, a single web page, or a Usenet newsgroup posting. However, the Minister for Communications advised in the Senate in June 2002 that the OFLC charges the ABA $510 to classify a single web page, single image or Usenet posting. This is the fee for classification of a videotape for sale or hire of up to 15 minutes running time, although the prescribed fee for classification of an entire magazine, offline, is $130.
More detail about these matters is provided below.
Detailed Report on Findings
1. ABA difficulties applying film guidelines to online content
Documents released to EFA show that the ABA has difficulty applying classification guidelines designed for movies to Internet content, including whether web pages and images would be classified PG (parental guidance) or RC (banned).
PG content is not even near the borderline of content prohibited online under the Commonwealth law the ABA administers, let alone near the borderline of RC. The film classifications are: G, PG, M, MA, R, X, RC.
In February 2002, Dr Jeffrey Brand stated, in his report commissioned by the OFLC on the Classification Guidelines review, that:
"The ABA claims that in its experience with the classification of online material, as administrator of the co-regulatory scheme for Internet content under Schedule 5 of the Broadcasting Services Act 1992, it finds difficulty using Film Guidelines for the Classification of online textual material."
Over the past two years, there has been substantial and ongoing public debate concerning the application of guidelines designed for cinema movies to text and static images on the Internet, particularly as some State governments plan to introduce Internet censorship laws with criminal penalties applicable to content providers.
Given the ABA is unsure of the borderline between 'prohibited' and 'not prohibited' online, it is clear that there is a high potential for Internet publishers to self-censor to a far greater extent than intended by Parliaments.
Moreover, the ABA's difficulties with application of the guidelines results in ABA expenditure of taxpayer funds on OFLC classification fees ($510 per item) for online material that is PG and M, although such content is not even near the borderline of content prohibited online under the law the ABA administers.
2. The Public Interest
EFA requested that the FOI fees be reduced or not imposed because "giving of access to the document[s] in question is in the general public interest or in the interest of a substantial section of the public" as provided for in Section 29(5)(b) of the FOI Act and discussed in FOI Memorandum No. 29 issued by the Attorney-General's Department.
EFA's letter included detailed information on the public interest grounds that EFA considers applicable.
3. "Protocols" agreed between OFLC and ABA
During the past two years, the ABA and OFLC have allegedly been negotiating about, and have agreed on, "protocols" for making information about classification decisions of Internet content available in the OFLC's online database. The OFLC Director referred to the "protocols" in a letter to EFA in September 2000. In July 2001 the ABA claimed such "protocols" had been agreed during cross-examination in a FOI case hearing in the Administrative Appeals Tribunal ("AAT"). The AAT's decision, in mid June 2002, suggests the AAT accepted the ABA's assurances given eleven months previously.
However, apparently the OFLC cannot readily locate or provide details of any such agreed "protocols". Moreover, as at June 2002, information about classification decisions of Internet content was still not available in the OFLC's online database.
EFA's FOI application requested:
"4) Copies of document/s detailing the protocols agreed between the OFLC and the ABA concerning online provision (e.g. in the OFLC online classification database) of OFLC classification decisions made under the Online Services Act/BSA, as referred to in the OFLC Director's letter to EFA of 27 September 2000."
The OFLC advised that processing that item of the FOI application would involve 19 hours decision making time and therefore cost $400. EFA considered that if a document "detailing the protocols agreed between the OFLC and the ABA" existed, it would not, or should not, take 19 hours to find it and decide whether or not it was exempt from disclosure under FOI. In view of the cost of $400 for a possibly non-existent document, EFA withdrew the request for same.
Further detail on the OFLC and ABA claims about these "protocols" is as follows.
On 12 September 2000, EFA wrote to the Director of the OFLC inquiring why classification decisions made by the OFLC for the ABA about online content were not available in the OFLCs classification database. The OFLC Director, Mr Des Clark, replied in a letter dated 27 September 2000 stating:
"...OFLC is currently negotiating a series of protocols with the ABA. When these are in place, I am sure that EFA will be satisfied with the information available online."
These protocols had not been put in place ten months later at the time of the AAT FOI hearing, nor had they been put in place twenty-one months later in June 2002.
[Ms Graham-EFA to Mr Fraser-ABA:] Are you able to advise whether the ABA and the OFLC are still negotiating protocols regarding putting classification decisions on line?
[Mr Fraser-ABA:] We have had discussions with the OFLC about the sort of information that is kept in their publicly accessible data base, and we have agreed on a format for information which would not - which doesn't contain information that is likely to lead a person to prohibited content.
[Ms Graham:] What is a format, sorry?
[Mr Fraser:] Well, agreed on the terms that the OFLC will use in its data base to list the information.
[Ms Graham:] Is this going to list it in any way that would identify what kind of page it was; what the topic of the page was; what the subject matter of the page was?
[Mr Fraser:] I understand that for each item you will see a complaint reference number, a classification and a very short description of the type of content concerned and possibly a date on which it was classified.
Nevertheless, no information at all about Internet content classified for the ABA was available in the OFLC classification database eleven months later (in June 2002), nor had the ABA commenced making such information publicly available.
4. Classification fee criteria
The OFLC was apparently unable to provide the information requested in Item 5 of EFA's FOI application regarding criteria used by the OFLC to determine the classification fee for Internet content that consists of a web site, or a single web page, or Usenet newsgroup posting (including copies of pages from OFLC procedure manuals or the like, memos to staff and/or Board members, etc).
The OFLC FOI decision did not state why such information was not provided. It thus appears that no such documents exist and that OFLC staff pick an amount of $510, $690, $770 or $1490 as they wish.
The OFLC's letter of 6 May 2002, declining EFA's request on public interest grounds for reduction in FOI charges, stated that "information about the prescribed classification fees, ... is available free of charge from both the OFLC and the OFLC web site". However, the "prescribed" fees do not state whether a web page or newsgroup posting is regarded as an "interactive or click-on access film", or a film with 0 minutes running time for 'public exhibition' in a cinema, or a film for sale or hire like a videotape. The prescribed fees are:
- A film (0-15 minutes) for public exhibition: $770
- A film (0-15 minutes) for sale or hire: $510
- An interactive or click-on access film, if demonstrated by the applicant $690
- An interactive or click-on access film, if not demonstrated by the applicant $1,490
- A computer game, if the application for classification is accompanied by an assessment of the game by an authorised person $360
- A computer game other than a computer game specified above $590
Although the OFLC refuses to make information about classification fees for Internet content available to the public, some information on this matter was made known by the Minister for Communications in answers to questions on notice tabled in the Senate on 17 June 2002. According to the Minister, the OFLC was charging the ABA $510 to classify a single web page, a single image, or a newsgroup posting during the six months ended June 2001. The $510 fee is the fee for classification of a videotape for sale or hire of up to 15 minutes running time. The prescribed fee for classification of an entire magazine, offline, is $130.
In early 2001, EFA asked the OFLC Director why fees for classification of a web page had not been established. The OFLC advised this was because "Internet content" is regarded as a "film" under legislation passed by the Commonwealth Parliament. The OFLC had no intention of recommending lower, more appropriate, fees for classification of online content because the OFLC considered fees for classifying offline material should be higher, however the Parliament had refused to approve increased charges. (Note: Opposition parties have legitimately refused to approve proposed charges due to Constitutional issues. Among other things, the Coalition Government sought to charge law-abiding publishers, in classification 'fees', for costs of enforcing the law against non law-abiding publishers.)
Given inability to charge higher fees for classifying offline material, apparently the OFLC and the Government are pleased to be able to charge the ABA and Internet publishers exhorbitant fees for classification of a web page and a newsgroup message.