FOI Applications:
OFLC and ABA 2003

Last Updated: 12 May 2003

On 4 April 2003, EFA lodged Freedom of Information Applications on the Office of Film and Literature Classification ("OFLC") and Australian Broadcasting Authority ("ABA") seeking a copy of an agreement regarding "protocols" for making information about Internet content classification decisions available in the OFLC's online database. The OFLC and ABA had been claiming such an agreement existed for over two years - most recently the OFLC Director had referred to it during a Senate Estimates Committee hearing in November 2002.

In May 2003 in response to EFA's FOI application, each of the OFLC and the ABA informed EFA that no such document existed. They also advised that the OFLC will be "seeking to clarify" the OFLC Director's evidence to the Senate Committee.

Contents:

• Summary
• Background
• EFA's FOI Applications, April 2003
  • FOI Application to OFLC
  • FOI Application to ABA
• FOI Decisions, May 2003
  • OFLC's FOI Decision
  • ABA's FOI Decision
• Conclusion

Summary

On a number of occasions during the past 2.5 years (since September 2000), the OFLC and ABA have claimed to have agreed on "protocols" for making information about Internet content classification decisions available in the OFLC's online database:

• In September 2000, the OFLC Director referred to the "protocols" in a letter to EFA.
• 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 June 2002, indicates that was a component contributing to their decision to uphold the ABA's refusal to release information sought by EFA.
• In February 2002, EFA sent an FOI application to the OFLC requesting copies of document/s detailing the protocols. The OFLC advised that processing that item 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.
• In November 2002, the OFLC Director informed a Senate Estimates Committee that a draft agreement on protocols for making classification decisions available online had existed for at least 18 months, but did not reflect current operating procedures.

EFA considered that perhaps the OFLC had located the document prior to responding to the Senate Estimates Committee question and, if so, perhaps it could now be provided under FOI without involving 19 hours and costing $400.

Hence, EFA sent FOI applications to both the OFLC and the ABA in April 2003 seeking a copy of the agreement concerning protocols as referred to by the OFLC Director during Senate Estimates and by the ABA during the AAT hearing.

Subsequently, in May 2003, each of the OFLC and the ABA informed EFA that no such document could be found in their records. They also advised that the OFLC will be seeking to clarify the OFLC Director's evidence to the Senate Estimates Committee to make it clear that the draft agreement to which he referred did not, in fact, contain protocols for making Internet content classification decisions available online.

More detailed information on the background to EFA's April 2003 FOI applications, and copies of the applications and agencies' decision letters, is provided below.

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Background

As outlined in the summary above, the OFLC and ABA have been claiming to have agreed on "protocols" for making information about Internet content classification decisions available in the OFLC's online database since September 2000. However, such information is still not available in that database (as at May 2003). Extracts from documents containing the OFLC's and ABA's claims about these protocols are provided below.

• 12-27 September 2000
  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 OFLC's 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."

• 18 July 2001
  During cross examination in the AAT, the ABA advised as follows:

  [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 had become available in the OFLC's online classification database seven months later in February 2002.

• 27 February 2002
  EFA sent an FOI application to the OFLC requesting, inter alia:

  "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.

• 12 June 2002
  The AAT decision in the FOI appeal case Electronic Frontiers Australia Incorporated and Australian Broadcasting Authority Q2000/979 indicates the alleged existence of an agreement on protocols was a component contributing to the AAT's decision to uphold the ABA's refusal to release information sought by EFA. The AAT said:

  "61. ...At the moment, classification decisions regarding that material is not disclosed on the OFLC's data base. Protocols are being negotiated between the ABA and the OFLC as to the manner in which the material is to be referred to and captured. ... With regard to the manner in which the OFLC notifies classification decisions on its web site, Mr [Richard] Fraser said that the OFLC and the ABA have agreed on a format that does not contain information likely to lead a person to the prohibited content. Each item will contain a very short description of the type of content and possibly a date on which it was classified."

• 20 November 2002
  During the Senate Legal and Constitutional Legislation Committee Estimates hearing the following exchange took place between Senator Joe Ludwig (ALP) and the OFLC Director, Mr Des Clark:

  "Senator LUDWIG-What work has the OFLC and the ABA done to develop the protocols for making classification decisions available online?
  Mr Clark-We have a draft agreement in relation to that, which has not been finalised. It has been somewhat overtaken by the guidelines review, but it is something that we have recently begun some further discussions on with the ABA.
  Senator LUDWIG-Is that available to the committee? Is it in a draft stage?
  Mr Clark-I do not see why not. I will try to make that available.
  ...
  Mr Clark-The draft document has been there for at least 18 months."

  The above request was placed on notice (QoN 7) and subsequently the OFLC provided the response below:

  "Senator Ludwig asked the following question at the hearing of 20 November 2002:

  Is that (the draft agreement between OFLC and the ABA) available to the Committee?

  I am advised that the answer to the honourable Senator's question is as follows:

  A draft document prepared by the Office of Film and Literature Classification (OFLC) dealing with administrative arrangements between the OFLC and the Australian Broadcasting Authority (ABA) does not reflect current operating procedures.

  A memorandum of understanding or agreement between the OFLC and ABA is to be drafted covering matters such as the legislative base, referral and workload management, decision records, including public access and privacy, and arrangements for payment. Meetings to develop and progress this agreement will commence early in the new year and are expected to be completed by the end of August 2003 at which time a copy of the agreement will be made available to the Committee."

  (Source: Copy of answer to QoN 7 provided to EFA by the Senate Committee Secretariat.)

• 4 April 2003
  EFA sent FOI applications to both the OFLC and the ABA. Detailed information on the applications and agencies' responses is provided below.

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EFA FOI Applications 2003

• FOI application to OFLC, dated 4 April 2003
• FOI application to ABA, dated 4 April 2003

The above applications requested a copy of "the draft agreement, prepared during 2000 or 2001, between the OFLC and the ABA concerning protocols/administrative arrangements for making Internet content classification decisions available online" as referred to by the OFLC Director during Senate Estimates in November 2002 and by the ABA during the AAT hearing in July 2001.

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FOI Decisions

• OFLC's FOI Decision, dated 6 May 2002 (sic), rec'd 7 May 2003.
  The OFLC advised, inter alia, that:

  "7. No documents have been identified as falling within the scope of your request.

  8. By way of background, a draft document on administrative arrangements between the OFLC and ABA, prepared by the OFLC in 1999 but never finalised (the 1999 draft document), was located. However this document does not contain any information regarding the issue of making Internet content classification decisions available online. As such, I do not consider it falls within the scope of your request.

  9. In your request you referred to the evidence given by the Director of the OFLC on 20 November 2002 to Senate Estimates in which the following exchange took place:

  'Senator Ludwig: What work has the OFLC and the ABA done to develop the protocols for making classification decisions available online?
  
  Mr Clark- We have a draft agreement in relation to that, which has not been finalised...'

  10. I understand that the OFLC will be seeking to clarify Mr Clark's evidence on this point to make it clear that the 1999 draft document did not include provisions on making Internet content classification decisions available online however this issue will be addressed in the agreement between the agencies that is currently being negotiated.

  11. I have spoken to OFLC staff involved in the current negotiations between the OFLC and the ABA to finalise an administrative agreement between the two agencies. I understand that the basis of negotiations is an entirely new document.

  12. I have been advised that the new document does address the issue of making Internet content classification decisions available online.

  13. I have also been advised that the OFLC will provide a copy of the document to EFA once finalised, given your interest in this issue."

• ABA's FOI Decision [Word 55Kb], dated 9 May 2003
  The ABA advised, inter alia, that:

  "The ABA has taken all reasonable steps to find the requested document, including undertaking a thorough search of its relevant files. No document falling within the scope of your request has been found and the ABA is satisfied that no such document exists in the ABA's records. Accordingly, your request is refused.

  Additional Information

  I understand that in 1999 a draft document on administrative arrangements between agencies was forwarded by the OFLC to the ABA (the 'OFLC Document'). The ABA has undertaken a thorough search of its relevant files, but a copy of OFLC Document has not been located.

  I understand that the OFLC Document did not contain provisions regarding the issue of making Internet content classification decisions available online. The ABA had no input into the OFLC Document and it was not progressed.

  In your request you noted evidence given by the Director of the OFLC on 20 November 2002 to the Senate Estimates Committee in which he refers to a draft agreement on making classification decisions available online. I understand that the OFLC will be seeking to clarify Mr Clark's evidence on this point to make it clear that that document did not include provisions on making Internet content classification decisions available online.

  I note that the ABA holds a document entitled 'OFLC Procedures for Processing ABA Requests for Classification of Internet Content on ABA Database', received from the OFLC in December 1999 [1]. This document contains procedures relating to the classification of Internet content and the recording of the decisions on the ABA and BOSS databases. As this document does not address making Internet content classification decisions available online, it does not fall within the scope of your request. However, by way of courtesy, the ABA will provide you with a copy of this document shortly.

  You may be interested to know that an agreement is currently being finalised between the ABA and the OFLC which addresses the issue of making classification decisions available online. The ABA will provide a copy of this agreement to you, once finalised."

  [Note 1: According to verbal advice from an ABA officer, the 1999 document held by the ABA entitled 'OFLC Procedures for Processing ABA Requests...' is not the same document as the 1999 'OFLC Document' referred to earlier in the ABA's decision.]

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Conclusion

EFA considers it of concern that neither the OFLC or ABA can find a copy of an agreement that they have claimed exists during Senate Estimates and AAT hearings.

We await a copy of the agreement that is allegedly currently being finalised with great interest. According to the OFLC Director during Senate Estimates on 10 February 2003, the OFLC "are expecting to have it finished well and truly before [the end of August 2003]". EFA hopes that the Director's evidence on this point was accurate.

EFA also hopes that once the agreement is finalised, information about Internet content classification decisions will promptly become available in the OFLC's online database.

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