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19 March 2013 [Personal Information Redacted 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. 2 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.
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