19 March 2013

[Personal Information Redacted] [Personal Information Redacted [Personal Information Redacted [Personal Information Redacted [Personal Information Redacted

By email: [Personal Information Redacted

Dear [Personal Information Redacted

Freedom of Information Act request – Internal review

I refer to my internal review decision of 14 February 2011 refusing your request for access under the Freedom of Information Act (FOI Act) to “all documents dealing with salaries, or any other payments, paid by the ABC in the financial year 2009 – 2010 to program makers working on [13 listed] television and radio programs”. I refused access at the time on the basis that the documents related to the ABC’s program material and therefore fell within the ABC’s exemption under the FOI Act

As you are aware, that decision was reviewed by the Australian Information Commissioner1 (AIC) and then by the Administrative Appeals Tribunal2 (AAT). The AAT decided to affirm the decision of the AIC that the ABC was not exempt from the operation of the FOI Act in relation to the requested documents. Accordingly, the ABC must now decide whether any other exemptions apply.

Decision-making authority

I am authorised by the Managing Director, under section 23 of the FOI Act, to make decisions on requests for internal review. I have conducted a review of the original access refusal decision in accordance with section 54 of the FOI Act and have made a fresh decision.

Your FOI request

I confirm that, on 12 February 2013, you agreed to revise the scope of your request as follows:

“all documents dealing with salaries, or any other payments, paid by the ABC in the financial year 2009 – 2010 to the on air presenters of each of the following three television programs:

 At The Movies (ABC Television);  Spicks and Specks (ABC Television); and  The Gruen Transfer (ABC Television)”

As I noted in my email dated 12 February 2013, the relevant on air presenters of these programs are, respectively:

 Margaret Pomeranz and David Stratton (At the Movies);

1 Herald and Weekly Times Pty Ltd and ABC [2012] AICmr 7 [2012] AICmr 7 (7 March 2012). 2 ABC and Herald and Weekly Times Pty Limited and Anor [2012] AATA 914 (21 December 2012).

 Adam Hills (Spicks and Specks); and  Wil Anderson (The Gruen Transfer).

I have excluded The Gruen Transfer presenter, Wil Anderson, from this response as I am advised that Mr Anderson was paid by an external producer, not by the ABC. He therefore falls outside the scope of your request. The ABC commissioned Zapruder’s Other Films Pty Limited to produce The Gruen Transfer. Mr Anderson’s fee is negotiated and determined by Zapruder and Mr Anderson’s agent, and Zapruder is responsible for making payments to Mr Anderson.

Identified documents

I have identified the following documents which include information relevant to your request:

Item Document description Date Size 1. Consultancy agreement - Program services – At the signed 25 Sep 2008 (effective from 1 27 Movies – Margaret Pomeranz Jan 2009 to 31 Dec 2009) pages 2. Consultancy agreement – Program services – At the signed 5 Jan 2010 (effective from 1 27 Movies – Margaret Pomeranz Jan 2010 to 31 Dec 2010) pages 3. 22 tax invoices for the services of Margaret Pomeranz dated from 6 Jul 2009 to 18 Jun 2010 22 in co-presenting At the Movies for 42 episodes and a (for episodes dating from 1 Jul 2009 to pages summer special 23 Jun 2010) 4. 14 tax invoices for Margaret Pomeranz expenses as dated from 10 Aug 2009 to 8 Jun 2010 14 per contract for travel, clothing, taxis, parking, fuel etc. pages 5. Consultancy agreement – Program services – At the signed 25 Sep 2008 (effective from 1 29 Movies – David Stratton Jan 2009 to 31 Dec 2009) pages 6. Consultancy agreement – Program services – At the signed 29 Dec 2009 (effective from 1 28 Movies – David Stratton Jan 2010 to 31 Dec 2010) pages 7. 22 tax invoices for the services of David Stratton in dated from 6 Jul 2009 to 24 Jun 2010 22 co-presenting At the Movies for 42 episodes and a (for episodes dating from 1 July 2009 pages summer special to 23 June 2010) 8. 2 tax invoices for David Stratton as per contract for dated 16 Jul 2009 & 6 Nov 2009 2 accommodation and travel allowance pages 9. Presenter agreement – Program services – Spicks signed 15 Feb 2010 (effective from 1 22 and Specks – Adam Hills Dec 2009 to 14 May 2010) pages 10. 18 tax invoices for the services of Adam Hills in dated from 1 Feb 2010 to 30 Apr 2010 18 presenting Spicks and Specks for 35 episodes (for episodes dating from 12 Dec 2009 pages to 29 Apr 2010)

Decision and reasons

Having reviewed your request, I have decided to refuse access to the identified documents on the basis that:

 the documents are conditionally exempt as access would involve unreasonable disclosure of personal information about the individuals concerned (section 47F); or

 the documents are conditionally exempt as access would, or could reasonably be expected to, unreasonably and adversely affect the persons concerned in respect of their business or professional affairs (section 47G); or

 the documents are conditionally exempt as disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of the ABC (section 47E);

– and it would be contrary to the public interest for access to be given (section 11A(5)).

The reasons for my decision are set out below.

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Personal privacy – section 47F

Section 47F protects personal privacy by providing that a document is conditionally exempt if its disclosure under FOI would involve the unreasonable disclosure of personal information of any person.

Whether information is “personal information”

“Personal information” is defined in section 4 of the FOI Act as information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

Details of the salary or other payments paid to named individuals are clearly personal information. This view is consistent with how such information is dealt with under federal privacy legislation, which recognises salary or wages as a category of personal information in the definition of “employee record” in the Privacy Act 1988 (Cth).

Whether disclosure is “unreasonable”

In assessing whether disclosure of personal information in the documents would be “unreasonable”, I have had regard to the matters specified in section 47F(2) of the FOI Act, the factors referred to in the Australian Information Commissioner’s FOI Guidelines issued under section 93A (notably in paras 6.130-6.131 and 6.138-6.141), and submissions from affected third parties under section 27A that the documents should be exempt from disclosure.

In my view, disclosure of the salary and payments paid by the ABC to its on-air presenters would reveal information that is widely regarded as personal and private. The specific amount a person earns reveals their financial situation. Information of this nature is commonly regarded as private. This was recognised by the Chief Justice of the High Court of Australia in ABC v Lenah Game Meats Pty Ltd who regarded a person’s finances as the sort of information that is easy to identify as private.3

The information does not relate to a public servant’s usual duties and responsibilities. Rather, the presenters are paid to perform services to the ABC in a private capacity. The presenters’ work forms part and parcel of their lives to such an extent that the professional and private aspects are often intertwined.

Salary and payment details paid to on-air presenters are not commonly disclosed and are not generally available from publicly accessible sources. The information is closely guarded by presenters and broadcasters – including in commercial, public and subscription broadcasting sectors. This information is not well-known in the community. It is standard industry practice for contractual terms – especially fees – to be negotiated on a confidential basis due to the competitive advantage others may have should the information become publicly known. I am advised that producers and network executives who disclosed this information to others would quickly lose the trust of agents and artists.

The presenters reasonably expected that the ABC would not disclose details of their remuneration packages. The terms of the presenters’ agreements were negotiated and agreed to in circumstances where there was a clear expectation of confidentiality. The agreements include confidentiality and non-disclosure clauses.

Disclosure of individual presenters’ salary details would cause unnecessary and unjustified harm to the individuals concerned. Disclosure may cause distress or embarrassment to the individuals

3 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, per Gleeson CJ at para 42, http://www.austlii.edu.au/au/cases/cth/HCA/2001/63.html. 3 concerned through unwarranted and unwelcome publicity about how much they earn from the ABC, including potentially adverse and uninformed comment. The presenters’ earnings would be singled out across the industry for comment in the absence of other comparable information relating to other presenters in other sectors of the industry with which to compare, benchmark or otherwise assess relativities.

Revealing how much they are paid by the ABC could adversely affect the presenters’ standing in the industry and impede their ability to negotiate market-based fees in a commercial context, both in Australia and overseas, by revealing – and thereby setting the bar for – the amount of remuneration they are willing to accept for the performance of their services in their chosen vocation. The disclosure of fees alone would misrepresent the value represented by the presenters’ agreements with the ABC. Presenters’ fees are negotiated with reference to a number of tangible and intangible considerations that may not be expressly tied to or reflected in the agreements. These include such things as the presenter’s level of interest or commitment to the project/program, the time and work required to record a program, the opportunity to build a national reputation in presenting particular programs for the national broadcaster/s, a desire to foster other talent involved in a program, a recognition that the ABC’s budgets are limited, and a willingness to support the role of the ABC in providing quality programming to the community. A combination of these factors may lead a presenter to choose to accept a fee from the ABC that they might not normally agree to in a commercial context. The fee also does not reflect the sort of charges a presenter might ordinarily seek from a commercial broadcaster in exchange for limiting their income-producing opportunities during the term of the contract – something presenters agreed to when contracting with the ABC due to the ABC’s legislative and editorial requirements, e.g., in restricting commercial endorsements. Revealing the presenter’s fee in isolation would unfairly put them at a disadvantage in negotiating future fee agreements in commercial contexts.

No public purpose would be achieved through release of the documents. Disclosure would not shed light on the workings of government. Nor would disclosure contribute to informing community debate or understanding about a matter of public interest. There has been no indication that the salaries earned by ABC presenters are excessive or a matter of public concern. It may be true that some people in the community might be curious to know what the ABC’s on-air presenters earn. However, as Justice Heerey found in Colakovski v Australian Telecommunications Corp, “if the information disclosure were of no demonstrable relevance to the affairs of government and was likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed ... disclosure would be unreasonable”.4

Having regard to the above factors, I have decided that the documents being sought are conditionally exempt under section 47F as their release would involve the unreasonable disclosure of personal information.

Business information – section 47G

Section 47G provides that a document is conditionally exempt if it would disclose information concerning a person in respect of his or her business or professional affairs, and the disclosure of the information would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs.

The information in the documents relates to the remuneration received by the presenters to provide their services to the ABC in presenting television programs. This information concerns and is relevant to the presenters’ business or professional affairs. I accept that it is “business information”.

4 Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429. 4

For the reasons already discussed, I find that disclosure would or could reasonably be expected to have an adverse affect on the presenters in respect of their professional affairs. Where, for the sort of tangible and intangible reasons already touched upon, a presenter accepts a fee from the ABC that they might not accept in a commercial context, disclosure could affect their standing in the industry and impair their ability to negotiate future fee arrangements in commercial contexts. This type of information is closely guarded across the industry because of the impact disclosure could have in a highly competitive market.

Having regard to these factors, I find that the documents are conditionally exempt as they would, or could reasonably be expected, to unreasonably affect the affected presenters in respect of their business or professional affairs.

Certain operations of agencies – section 47E

Section 47E(d) provides that a document is conditionally exempt if 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.

It is a core function of the ABC to provide innovative and comprehensive programming of a high standard that aims to inform, entertain and educate diverse audiences.5 The ABC also has a duty to ensure it carries out its functions efficiently and with the maximum benefit to the people of Australia.6

The ABC relies on public funding yet it operates in a highly competitive broadcasting environment. Disclosure of the amount the ABC pays its presenters would place the ABC at a distinct commercial and operational disadvantage. As noted earlier, it is standard industry practice to keep this type of information confidential.

If the confidentiality of presenters’ remuneration details cannot be assured, then they (and other talent in a similar position) are likely to be reluctant to continue to provide their services to the ABC on similar terms. There is a particular risk that disclosure of the amounts paid by the ABC to individuals who are highly regarded and possess a rare talent could result in the ABC being outbid by its commercial competitors seeking similar talent. Publicly disclosing salary details would severely hamper the ABC’s ability to attract and retain on-air presenters, especially those presenters who are willing – for the tangible and intangible reasons already discussed – to accept a fee they might not otherwise agree to in a commercial context.

Disclosure also risks pushing up talent costs, as presenters are likely to seek fees more in line with what they would negotiate with commercial operators to ensure they are not materially disadvantaged should the amounts paid by the ABC become known.

Because of the consequences flowing from disclosure, talent may choose or be enticed to work elsewhere or they may seek a more commercially competitive rate from the ABC. This would have a substantial adverse effect on the ABC’s ability to efficiently deliver quality programming that meets its Charter obligations to inform, educate and entertain. The ABC, reliant on public funding and directed by its statute to operate efficiently, is not in a position to negotiate fees in the way a commercial entity might. If the ABC had to increase the money it spends on paying presenters, this would inevitably dip into the ABC’s other programming commitments. If the ABC was not able to agree to a commercially competitive fee, or if talent chose to work someplace else where they could trust their payment details would be kept confidential, then this would result in a serious and regrettable loss of talent. Either way, disclosure would ultimately significantly affect the sort of programming audiences come to expect from the ABC.

5 Australian Broadcasting Corporation Act 1983, section 6 (Charter of the Corporation). 6 Australian Broadcasting Corporation Act 1983, section 8 (Duties of the Board). 5

Having regard to these factors, I am satisfied that disclosure would significantly hinder the ABC’s ability to efficiently deliver existing and ongoing programming that is innovative, of a high standard and of maximum benefit to the Australian community.

The public interest

Section 11A(5) of the FOI Act requires that access must be given to conditionally exempt documents unless, in the circumstances, access at that time would on balance be contrary to the public interest.

In balancing the public interest, I have had regard to the matters listed in section 11B(3), the factors referred to in the Australian Information Commissioner’s FOI Guidelines issued under section 93A (notably in paras 6.25 and 6.29), and submissions from affected third parties under section 27A that the documents should be exempt from disclosure.

Factors against disclosure

For the reasons outlined above, I have already determined that disclosure could reasonably prejudice the protection of an individual’s right to privacy as it would reveal their personal information and could cause adverse consequences on them personally and professionally in ways already discussed. The entertainment industry is highly competitive and has no guaranteed long term career stability. Disclosure in this context of such sensitive details relating to their business or professional affairs would have a real potential to affect presenters’ reputation and livelihood. Moreover, such disclosure may also have a ripple effect for other artists in the entertainment industry whose services the ABC wishes to engage or retain.

As already discussed, disclosure could also be reasonably expected to have a significant adverse effect on the operations of the ABC in delivering innovative and comprehensive programming of a high standard to its audiences. The ABC operates in a competitive broadcasting environment yet relies on public funding. Disclosure would place the ABC at a commercial and operational disadvantage by hindering its ability to engage and retain talent. Disclosure could also result in increased talent costs that, if agreed to by the ABC, would result in less funding being available for other programs. If the ABC was not in a position to pay a commercially competitive fee, of if talent choose for privacy reasons to work elsewhere, then this would result in loss of talent and programming delivered to the benefit of the people of Australia.

Factors favouring disclosure

There is arguably a public interest in favour of disclosure for the purpose of promoting effective oversight of public expenditure. I find that the ABC’s expenditure of public monies is already subject to a number of accountability and oversight mechanisms, both internally and externally.

The ABC has internal commissioning guidelines (operational since May 2009) which require detailed consideration of program/project proposals to assess the appropriateness of funding levels. This includes examination of producer budgets which involve agreements with presenters/talent. The commissioning process involves:

 review and endorsement of project proposals by Television’s Content Executive – comprising the Director of Television and various heads of programming, business and operations, marketing and promotion, strategy and governance – to ensure the project is in line with the ABC’s Commissioned Content Strategic Plan and Budget;

 detailed line-by-line analysis of project budgets by the Production Executive together with heads of financial, commissioning and operations areas within the ABC. Producers’ budgets (for internal projects with third-party agreements) are also reviewed by the Production Executive as part of the

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budget review. All third-party agreements for key talent/presenters are negotiated by the Business Affairs Manager on behalf of the Television Division;

 review by the Proposal Review Group – including representation from television programming, business affairs, legal, and financial control – of all commissioning proposal details including the producers budget for internal projects with third-party agreements. The Group also confirms any key talent agreement;

 review and endorsement by a cross-divisional Commissioning Group, including representation from business affairs and financial control areas within the ABC. The Commissioning Group examines project proposals against the commissioning process to confirm that it was correctly applied and, where appropriate, to refer any unresolved concern upwards to the Director of Television or Managing Director for resolution; and

 final approval given either by the Director of Television or the Managing Director.

The ABC’s expenditure of public monies is also subject to a number of external oversight mechanisms. The ABC’s governance and financial affairs can be examined by the Australian National Audit Office (ANAO). The ANAO has extensive powers of access to the ABC’s documents and information and can perform audits and reviews to provide the Parliament – and therefore the community – with assurance about the ABC’s financial reporting, administration, and accountability.

The ABC is also required to comply with the public financial reporting requirements set out in the Finance Minister’s Orders made under the Commonwealth Authorities and Companies Act 1997. The Orders applicable in 20097 required the ABC (and other public sector agencies and authorities) to publish salary band information for its directors and senior executives.8

Mandating and limiting disclosure of salary information in this way is consistent with the view that senior public sector employees should reasonably expect that aspects of their remuneration will be placed in the public domain as they have responsibility for making influential public policy decisions or decisions involving significant expenditure of public monies. The role of presenters, however, is quite different. Presenters have no role in public policy decisions or in authorising the expenditure of public monies. Fees paid to presenters do not relate to the performance of a public function but rather to the performance of personal services provided to the ABC in a private capacity.

An additional and significant external accountability measure is that provided by the Parliament itself. The ABC’s expenditures are subject to parliamentary scrutiny by the Senate Environment, Communications and the Arts Legislation Committee through its Budget estimates hearings. This Committee has the powers and procedures to inquire into financial matters as it sees fit, and to receive evidence in a manner that takes into account concerns about privacy and commercial confidentiality – as it has done with the ABC on two occasions (in 1985 and 2009) when questions were asked about the salaries of ABC presenters and the Committee reconvened to hear evidence in camera rather than in public.9 In this way, accountability is assured while privacy and commercial confidentiality are preserved.

7 An archived copy of the Finance Minister’s Orders applying to the reporting period post 1 July 2009 is available at http://web.archive.org/web/20101205013059/http://www.finance.gov.au/publications/finance-ministers- orders/docs/FMOs-Financial-Reporting.pdf. 8 Directors and Officers’ remuneration details are disclosed for the 2009-10 period in the ABC’s annual report in Part 5, sections 15 and 17: http://about.abc.net.au/reports-publications/annual-report-2009-2010-part-5-financial- performance/. 9 Odgers’ Australian Senate Practice, 13th edition, page 486 in Chapter 16. Committees – Powers of committees – Power to take evidence in private), available at http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures. 7

Balance of the public interest

I have given significant weight to the privacy interests of the affected presenters and the potential personal and professional harms they could suffer as a consequence of disclosure. I have also considered the harms disclosure would have on the ABC’s ability to attract and retain presenters in the highly competitive environment in which it operates. In my view, the public interest in favour of accountability in how the ABC spends public monies is sufficiently met by the operation of existing oversight mechanisms within and external to the ABC.

Accordingly, I find that disclosure of documents relating to the salary and payments made to presenters to be unreasonable and on balance contrary to the public interest.

Rights of review

If you are dissatisfied with this decision, you can apply for review by the Australian Information Commissioner, whose contact details are:

Office of the Australian Information Commissioner GPO Box 2999 Canberra ACT 2601 (or) GPO Box 5218 Sydney NSW 2001 Tel: 1300 363 992 Fax: 02 9284 9666 Email: [email protected] Website: www.oaic.gov.au

In making your application to the Information Commissioner, you need to provide an address for notices to be sent (this can be an email address) and a copy of this decision.

You may also wish to inform the Information Commissioner of the reasons for seeking review.

Yours sincerely

Michelle Fisher FOI Internal Reviewer, authorised under s 23 FOI Act

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