1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Australian Broadcasting Corporation (the ABC) of 25 October 2022. I substitute my decision that:
   • signatures which the ABC deleted under s 47F are out of scope of the IC review
   • material in Document 1 (the email referred to below at [15] - [16]) is relevant to the request and should be disclosed to the applicant
   • the second attachment to the email (referred to below at [18] - [20]) is irrelevant to the request under s 22
   • the business case (Documents 1A and 2), and pages 2 and 3 of the risk register (Document 3) are exempt under s 47(1)(b)
   • pages 1 and 4 of the risk register (Document 3) are not exempt under s 47(1)(b) or conditionally exempt under s 47E(d)
2. Within 28 days of this decision:
   • the ABC must now provide the applicant with a copy of the documents, edited under s 22 of the FOI Act only to the extent necessary to delete material I have found to be exempt or irrelevant, and
   • the ABC must advise whether it has fully implemented my decision or whether it will be seeking review of the decision by the Administrative Review Tribunal.

1. This decision primarily discusses the application of ss 47(1)(b) and 47E(d) to certain documents held by the ABC related to their proposal to make iView accounts mandatory. It finds this material is exempt from release under s 47(1)(b) except for certain templated parts of the risk register, which do not contain information about the proposal.

1. In summary the applicant sought access to certain specific documents related to the proposal to make iView accounts mandatory, as well as documents relating to the risks of the proposal.
2. The decision under review is the ABC's revised decision under s 55G of 25 October 2022.[1] In that decision the ABC granted access to three documents and refused access to one document in full. It deleted material from the documents under ss 47(1)(b), 47E(d), 47F and 22 of the FOI Act.
3. After receiving the ABC's revised decision, the applicant confirmed they wished to continue with their IC review. However, they advised they do not dispute the deletion of signatures under s 47F. Given the ABC has only deleted signatures under s 47F (and no other information), I consider s 47F is not at issue in this IC review and it is unnecessary for me to consider this aspect of the ABC's revised decision further.
4. In an IC review of an access refusal decision, the agency bears the onus of establishing that its decision is justified or that I should give a decision adverse to the applicant.[2]
5. The issues to be decided in this IC review are whether:
   • certain material is irrelevant (s 22)
   • certain material is conditionally exempt under ss 47(1)(b) and/or 47E(d) (as relevant), and if so, whether disclosure would be contrary to the public interest at this time.
6. In making my decision, I have had regard to the following:
   • the ABC's decisions of 15 September 2021 and 25 October 2022 and reasons for those decisions
   • the documents at issue
   • the FOI Act[3]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[4] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[5] and
   • the parties' submissions.

1. In its revised decision, the ABC advised that parts of an email (Document 1) and the whole of an attachment to that email are irrelevant to the scope of the request because they are about matters which the applicant has not requested access to.
2. In summary, the applicant submitted:
   • they do not agree that the wording is irrelevant to their request because the wording was included in the same email that submitted the iview proposal (Document 1A) for review, and the approval suggests that it was closely related to their request.
   • For similar reasons, the second attachment to Document 1 appears to be relevant.
   • 'It would be strange' for multiple, documents to be submitted with the same subject line of 'Personalisation Business Case[redacted]' if they were entirely unrelated to this subject.
3. In response, the ABC advised the material in the email includes:
   • The total number of business cases within the 'personalisation' project. This information is not part of the business case relating to the proposal to make ABC iview accounts mandatory. Rather it reflects the fact that other proposals were progressed at the same time. The ABC advised it is willing to disclose this number.
   • The name of a second business case document which is unrelated to the applicant's FOI request.
   • The internal project name for the personalisation project.
4. The ABC also advised the second attachment to the email is a separate business case document that does not include nor refer to the proposal to make ABC iview accounts mandatory.
5. In response to the applicant's query about why unrelated documents were submitted with the same subject line, the ABC advised this information travelled together for the convenience of decision makers at the time.

1. I have considered the unedited version of the email and the wording of the FOI request. In the schedule in its revised decision the ABC described the first document as 'Email re: Draft business case for approval'. It is apparent from the schedule and my review of the documents that the business case draft submission was attached to this email.
2. I accept the ABC's submission that the deleted material is not part of the business case relating to the proposal to make ABC iview accounts mandatory. However, in their FOI request, the applicant specifically requested 'Documents, including emails, containing the submission of the proposal for consideration and approval'.
3. The ABC has already provided the applicant with access to most of the material in the email. In my view, as the email referred to above attached the submission of the proposal and meets the above description, its content is within scope and the deleted material is relevant to the FOI request.

1. In addition to what I described above at [16], the applicant relevantly requested, 'The business case document(s) (or equivalent) that include the proposal to make iView accounts mandatory, including any attachments. ...'
2. While the applicant did request attachments, their request was focused on business case documents that include the proposal to make iView accounts mandatory. Based on my review of the unedited document, I accept the ABC's submission that the second attachment is a separate business case document that does not include nor refer to the proposal to make ABC iview accounts mandatory.
3. In these circumstances I consider the document falls outside the scope of the request and is irrelevant.

1. Having considered the scope of the request, previous decisions and guidance, I consider the material the ABC deleted from the email is not irrelevant but the second attachment to the email is irrelevant.

Documents disclosing trade secrets or commercially valuable information (s 47)

1. A document will be exempt under s 47(1)(b) of the FOI Act if its disclosure would reveal information that has commercial value that would be, or could reasonably be expected to be, destroyed or diminished if it were disclosed.
2. In summary, the ABC submitted:
   • Documents 1A and 2 are the business case for iview mandatory login. They contain sensitive commercial information, including specifications and costings, and had a limited internal audience.[6]
   • The ABC is in the business of creating content for its audience. Its online video on demand platform (iview) is a key component of delivering that product.
   • Disclosure would limit the ABC's ability to engage competitively in the highly competitive space of on-demand programming[7], including the supply of content to its audience. If a competitor became aware of specifications the ABC is, or may be proposing to use, they would likely gain a competitive edge by replicating aspects of the iview platform, thereby diminishing the value of the business case, and the steps taken recently to update the platform.
   • Document 3 is a risk register. By its nature, a risk register records potential vulnerabilities in systems, and sharing this information outside of those members of the ABC who have a need to know exposes the ABC to substantial and unnecessary risk. Users may also be placed at risk, if those risks were not effectively managed and mitigated by the ABC.
     • It is essential that the ABC's risks, and any potential or theoretical back-end weaknesses, are not placed in the public domain. There is a risk of cyber-attacks which is of great concern to users.
3. In summary, the applicant submitted:
   • The ABC is a public broadcaster, not a commercial broadcaster, and is funded predominantly through government appropriations. It does not charge Australians to view its broadcasts like a subscription cable or streaming service, nor does it sell commercial advertising like commercial television stations.
   • The ABC has not sufficiently explained the commercial activity in which it claims to be engaged, and how that commercial activity would be harmed by disclosure of the documents. The applicant contends the ABC is not engaged in commercial activity but is simply operating as a public broadcaster.
   • The ABC claims that knowledge of risks on its risk register is somehow commercial information. The ABC must substantiate how an outdated risk register is related to commercial activities it undertakes and the nature of those commercial activities.[8]
   • Document 3 is, as the ABC admits, from May 2021 and "was at a preliminary stage". The commercial value of a preliminary risk register from almost two years ago is surely negligible.
   • The applicant contends it is 'disturbing' that the ABC has attempted to link disclosure of a preliminary risk register with the potential for a large scale data breach.
   • If the ABC's systems are so poorly designed and secured that the mere disclosure of a out-of-date risk register would allow an attacker to successfully breach its defences, this is an argument in favour of disclosure, not against.
4. While I accept the applicant's submission that the ABC is a public broadcaster that is government funded, I do not consider that this precludes it from relying on s 47(1)(b) of the FOI Act to exempt documents from disclosure on the basis that the documents have commercial value which would be diminished by disclosure.
5. As noted in the FOI Guidelines, whether information has commercial value which would be destroyed or diminished by disclosure, is a question of fact. The FOI Guidelines set out several factors that may assist in deciding whether information has commercial value. These relevantly include:
   • whether the information is known only to the agency or person for whom it has value or, if it is known to others, to what extent that detracts from its intrinsic commercial value
   • whether the information confers a competitive advantage on the agency or person to whom it relates
   • whether the information is still current or out of date (out of date information may no longer have any value)
   • whether disclosing the information would reduce the value of a business operation or commercial activity
6. Based on my review of the unedited documents, I accept the ABC's description of the documents. As the ABC noted, Documents 1A and 2 are the business case for the iview mandatory login which contains specifications and costings, and Document 3 is a risk register for that project.
7. In its revised decision, the ABC advised it is an Independent Corporate Commonwealth entity with a separate identity to the Commonwealth[9], and that ABC iview is one of its commercial offerings. It advised ABC iview is a custom design which has significant financial and operational value.
8. In this context, I accept the ABC's submission that the ABC is engaged competitively in the highly competitive space of on-demand programming, including the supply of content to its audience. I also accept the ABC's submission that its online video on demand platform (iview) is a key component of delivering that product to its audience, and that if a competitor became aware of specifications the ABC is, or may be proposing to use, they would likely gain a competitive edge by replicating aspects of the iview platform, thereby diminishing the value of the business case, and the steps taken to update the platform.
9. On this basis, having considered the nature and content of the documents, I consider that except for the material I have identified below, the documents do contain information that has commercial value to the ABC that would be, or could reasonably be expected to be, destroyed or diminished if it were disclosed.
10. However, some material in Document 3 appears to be part of the standard form for the ABC's risk register and does not include any information about the risks involved in the particular project. The ABC's submissions did not specifically address why this material has commercial value to the ABC that would be, or could reasonably be expected to be, destroyed or diminished if it were disclosed. I do not consider that the ABC has met its onus to establish that this material, which is located on pages 1 and 4 of Document 3, has commercial value to the ABC that would be, or could reasonably be expected to be, destroyed or diminished if it were disclosed.

1. For the above reasons, I consider that the documents are exempt under s 47(1)(b) of the FOI Act, except for the material located on pages 1 and 4 of Document 3.

1. A document will be conditionally exempt if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency (s 47E(d)).
2. Given I have found certain documents and material to be exempt under s 47(1)(b) it is unnecessary for me to consider if the same material is conditionally exempt under this provision. Accordingly, I will only consider pages 1 and 4 of Document 3.
3. In relation to s 47E(d), the ABC made similar submissions to its submissions regarding s 47(1)(b), which I have summarised above at [23].
4. In summary (in addition to the submissions summarised above), the applicant submitted the ABC provided no specific evidence in support of its s 47E(d) claims. It has provided a broadly phrased description of the nature of the ABC's purpose and that iView contributes to this purpose.[10]
5. As noted above at [31] some material in Document 3 appears to be part of the standard form for the ABC's risk register and does not include any information about the risks involved in the particular project. The ABC's submissions did not specifically address this material, and it does not appear that its submissions apply to the templated language in those parts of the document. I do not consider that the ABC has met its onus to establish that this material, which is located on pages 1 and 4 of Document 3, is exempt under this provision.
6. In my view the ABC has not discharged its onus of demonstrating that disclosure of the material on pages 1 and 4 of Document 3 would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of its operations.

1. For the above reasons, I am not satisfied that the material on pages 1 and 4 of Document 3 is conditionally exempt under s 47E(d).

Relevant provisions of the FOI Act, FOI Guidelines, and decisions

Section 11A(4) of the FOI Act states the agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.

Section 22 of the FOI Act authorises an agency to prepare and to give an applicant access to an edited copy of a document if:

• an agency or Minister decides:
• to refuse to give access to an exempt document (s 22(1)(a)(i)), or
• that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access, and
• it is possible for the agency or Minister to prepare an edited copy of the document (s 22(1)(b)), and
• it is reasonably practicable to prepare an edited copy, having regard to the nature and extent of the modification required, and the resources available to modify the document (s 22(1)(c)), and
• it is not apparent, from an applicant's request or consultation with the applicant, that the applicant would decline access to the edited copy (s 22(1)(d)).

A request should be interpreted as extending to any document that might reasonably be taken to be included within the description the applicant has used.2

(1) A document is an exempt document if its disclosure under this Act would disclose:

(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.

It is a question of fact whether information has commercial value, and whether disclosure would destroy or diminish that value. The commercial value may relate, for example, to the profitability or viability of a continuing business operation or commercial activity in which an agency or person is involved. The information need not necessarily have 'exchange value', in the sense that it can be sold as a trade secret or intellectual property. The following factors may assist in deciding whether information has commercial value:

• whether the information is known only to the agency or person for whom it has value or, if it is known to others, to what extent that detracts from its intrinsic commercial value
• whether the information confers a competitive advantage on the agency or person to whom it relates - for example, if it lowers the cost of production or allows access to markets not available to competitors
• whether a genuine 'arm's-length' buyer would be prepared to pay to obtain that information
• whether the information is still current or out of date (out of date information may no longer have any value)
• whether disclosing the information would reduce the value of a business operation or commercial activity - reflected, perhaps, in a lower share price.9

The second requirement of s 47(1)(b) - that it could reasonably be expected that disclosure of the information would destroy or diminish its value - must be established separately by satisfactory evidence. It should not be assumed that confidential commercial information will necessarily lose some of its value if it becomes more widely known. Nor is it sufficient to establish that an agency or person would be adversely affected by disclosure; for example, by encountering criticism or embarrassment. It must be established that the disclosure would destroy or diminish the commercial value of the information.10

Certain operations of agencies exemption (s 47E(d))

Section 47E(d) of the FOI Act states a document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

As discussed in the FOI Guidelines[11] and in IC review decisions,[12] a document is conditionally exempt under s 47E(d) if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

With respect to the term 'substantial adverse effect', the FOI Guidelines also explain:

The term 'substantial adverse effect' broadly means 'an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person'. The word 'substantial', in the context of substantial loss or damage, has been interpreted as including 'loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal'.

A decision maker should clearly describe the expected effect and its impact on the usual operations or activity of the agency in the statement of reasons under s 26 to show their deliberations in determining the extent of the expected effect. It may sometimes be necessary to use general terms to avoid making the statement of reasons itself an 'exempt document' (s 26(2)).[13]

Further, in Re James and Others and Australian National University (1984) 6 ALD 687; [1984] AATA 501, Deputy President Hall explained:

As a matter of ordinary English, I think that the expression "the conduct of the operations of an agency" is capable of extending to the way in which an agency discharges or performs any of its functions. [14]

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

[1] In its original decision, the ABC granted part access to three documents, and refused access to one document in full with exemptions applied under ss 47(1)(b), 47E(d), 47F and 22 of the FOI Act. The applicant applied for an internal review on 16 September 2021. The decision was deemed affirmed in the absence of a decision by 16 October 2021.

[3] Sections 22, 47(1)(b) and 47E(d) as set out in Annexure A.

[4] See, Office of the Australian Information Commissioner_, Guidelines issued by the Australian Information Commissioner under_ s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

[6] The ABC noted it was seen by a select group of senior management and the committee in charge of putting the business case together.

[7] The ABC noted the iview platform operates in a highly competitive market, against another public broadcaster, the SBS, as well as commercial entities including Nine Entertainment, Netflix, and Stan.

[8] The applicant also submitted that not only must the ABC establish that it is engaged in a commercial activity, but it must also link the information in the documents to that commercial activity. It must further demonstrate that there is a real, significant or material possibility, based on reasonable grounds, of prejudice to that commercial activity by disclosure of the documents.

[9] In this respect, the ABC referred to sections 5, 6 and 25 of the ABC Act.

[10] The applicant also submitted to successfully claim a s 47E(d) exemption, the ABC must demonstrate that the predicted effect is substantial, and could reasonably be expected to occur.

[11] See FOI Guidelines at [6.90] - [6.92], and [6.112] - [6.118] and the cases referenced there.

[12] See, Raymond Williams and Department of Defence (Freedom of information) [2023] AICmr 26; Refugee Advice & Casework Service and Department of Foreign Affairs and Trade (Freedom of information) [2023] AICmr 16; Christis Tombazos and Australian Research Council (Freedom of information) [2023] AICmr 14; 'ACF' and Australian Public Service Commission (Freedom of information) [2022] AICmr 73; Rex Patrick and Department of the Prime Minister and Cabinet (No. 2) (Freedom of information) [2022] AICmr 66; 'ZA' and Department of Veterans Affairs (Freedom of information) [2021] AICmr 83; Australian Society for Kangaroos and Rural Industries Research and Development Corporation trading as AgriFutures Australia (Freedom of information) [2019] AICmr 31; and 'PR' and Comcare (Freedom of information) [2019] AICmr 2.

[13] FOI Guidelines at [6.18] - [6.19] (footnotes omitted).