Tuesday, December 24, 2013

UPDATED FOI-request for records of communication with appropriate authorities

UPDATE: Alan Sunderland ABC's Head of Editorial Policy takes a WEB break and provides the following:

The advice provided by intelligence was not provided in writing, it was provided face to face. That is why there are no documents of the kind you sought. The ABC itself also did not create any documents detailing that advice.
Merry Christmas,
Alan Sunderland (currently on "well-earned" break)
Head of Editorial Policy

To which I replied:

Thanks Alan,
ABC MD Mr Scott in senate estimates referred to multiple authorities -see transcript below. In the public interest can ABC indicate which authorities it spoke directly with. Based on your response it seems there was only one agency involved in which case Mr Scott may have mislead senate estimates (ed. on the number of agencies it took advice from).

From senate estimates transcript:

Mr Scott : I think there were discussions with The Guardianbut there were also discussions with appropriate authorities. As would usually be the case with a story, we went to appropriate figures


Reply From Alan Sunderland:

I'm not proposing to go into any further details, but I can confirm that the MD's advice was accurate. 

Our response:

Dear Alan,
Thanks again. The ABC justified publication of stolen top secret classified documents on the grounds of public interest. I am using the same grounds to request for further details about ABC's communications with authorities.  In particular which agencies ABC spoke with (I am not requested the names of individuals) and the nature of the advice they provided. I find it hard to believe that the agencies involved condoned the release of stolen top secret information and on this basis would suggest on this basis that the ABC went against the advice of the agencies it contacted. It would be in the public interest to discover that the agencies involved did not recommend to the ABC that the documents not be reported upon in the first instance by the ABC. 

Look forward to your response. Appreciate your time away from WEB. Note in the public interest our correspondence is posted at the ABC NEWS WATCH blog.


Original Post below
In light of revelations that ABC do not have any documents that confirm ABC took advice from Australia's intelligence authorities, before it published stolen top secret information, we put the following request to ABC's FOI coordinator, perhaps a slightly different wording may reveal traces of the communication:

Dear FOI coordinator,
I refer to the following extract of the Hansard Transcript of ABC's managing director's testimony to the Environment and Communications Legislation Committee - 19/11/2013 - Estimates - COMMUNICATIONS PORTFOLIO

I request under FOI any records related to the ABC's communications with "appropriate authorities" referred to by Mr Scott in the transcript below.

Senator LUDLAM: Mr Scott, I am going to take you back to where you began in response to some remarks that you made on questioning from my colleague Senator Ruston. I was watching and listening fairly attentively from my office downstairs and appreciate the candour of your comments regarding the story that the ABC and The Guardian broke yesterday. I think it was extremely well put. I am interested in the process of redaction. I notice that, of the slides you published, six or so slides have been redacted. Have you done that in collaboration with The Guardian, or is that something separate?
Mr Scott : I think there were discussions with The Guardian, but there were also discussions with appropriate authorities. As would usually be the case with a story, we went to appropriate figures—I will not go into detail on that—saying that we were aware of these matters, that we had seen these documents and that this was the shape of the story that we might be running. There was some consultation around that. I think that, in light of representations that were made, a decision was made to withdraw some elements on those slides. I will not go into the detail of that information, but that was a decision that we came to. That is not an atypical process.
Senator LUDLAM: Were you at that point coordinating with the editors of The Guardian?
Mr Scott : I believe I was aware the story was coming together and finally briefed on its shape before it went to air, but I believe that, even though, when the ABC was aware of this material, the ABC reporting staff made its own calls, made its own inquiries and wrote and filmed our own stories independently from The Guardian, there were points where there was discussion with The Guardian, including around the time when the story would be published.
Senator LUDLAM: Presumably in what form the primary source material would be published.
Mr Scott : Yes. I think there was an agreement around what material would be redacted and the reasons for that.
Senator LUDLAM: Can we assume that some of those redactions are a direct response to your process of checking with various authorities?
Mr Scott : Yes you can.
Senator LUDLAM: Publishers including The GuardianThe New York Times and others in the United States rest on first-amendment protections when they put this material to air or online, but in the UK, you are no doubt aware, the offices of The Guardian have been not quite raided but have had the editor told, 'Time's up; you've had your fun' and The Guardian has been forced to drill out and destroy hard drives containing the source material and, effectively, told to stop publishing. To their credit, they have not. What is the legal situation here in Australia? On what constitutional protections, if any, do you rest when you put a story like this to air?
Mr Scott : I do not have precise detail in front of me. We had this story legalled. We did not believe there was any legal impediment to broadcasting this material, but I do not have that precise legal advice in front of me this afternoon.
Senator LUDLAM: Okay. Do you publish under some kind of implied freedom of publication or are you exposed in the same way as publishers in, for example, the UK?
Mr Scott : We clearly do not have the first amendment here. In our discussions with authorities yesterday there were no other issues raised with us that was an inhibitor on us publishing this material.
Senator LUDLAM: That is good. I know it would not normally be the practice.
Mr Scott : And our act does require us to comply with the law. This is one of the reasons why we seek legal advice prior to publication.
Senator LUDLAM: I guess I am more concerned that the law is silent rather than containing any explicit prohibition for you to do what you have done. The law in the Australian Constitution is silent.
Mr Scott : That is true. There is no prevailing first-amendment protection.

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