Sydney community radio station 2SER has been mired in controversy after Mark Robinson, the talks producer and sole paid current affairs staff member, was made redundant. His position was abolished in an unpopular change proposal pushed earlier this year by managing director, Melanie Withnall. The decision attracted significant criticism from station alumni and working journalists.
Now the University of Technology Sydney and 2SER radio are blocking the release of swathes of information relating to changes at the community broadcaster. Government Information (Public Access) requests to both UTS and 2SER have been rejected. 2SER also denies it is subject to the GIPA Act entirely.
UTS has used a broad range of exemptions, including that it would breach the privacy of staff, and would diminish the competitive commercial value of 2SER. The decision maker, William Paterson, has also refused to provide redacted copies of the documents on the grounds that there is an "overriding public interest" against their disclosure — the documents can only be accessed on inspection, and only by the applicant, the author of this article.
"The information deals with processes within a private legal entity which has commercial value, and which, if disclosed, is expected to diminish the competitive commercial value of 2SER and the information, and prejudice their business, commercial and financial interests," writes Paterson.
"The access application … specifically requests information pertaining to a private legal entity, not a public agency, which is held by UTS by virtue of UTS being a direct funding body, and holding a place on 2SER’s Board of Management."
Read the full UTS GIPA decision letter here.
Read the summary decision letter from William Paterson here.
UTS and Paterson are playing fast and loose here. UTS is not just a direct funding body — it’s the joint owner of 2SER along with Macquarie University. Under the company’s memorandum of association Macquarie University and UTS have the power to appoint four board members each. The chair of the company will alternate from year to year from UTS and Macquarie.
As the company is not limited by share it has no other members beyond the directors — so whoever controls the board controls the company. Quite clearly, UTS and Macquarie control the board. The 2SER change proposal, which New Matilda has decided to publish here, also requires "senior management approval". 2SER’s own website says it’s jointly owned by Macquarie and UTS.
The university is clearly trying to distance itself from 2SER and its management. In reality though, both UTS and Macquarie reserve considerable decision-making powers through their control of the board. The control of both universities also raises the issue of whether 2SER is subject to GIPA in their own right. When New Matilda attempted to send a GIPA request to 2SER directly, managing director Melanie Withnall declined the request and stated that 2SER was not subject to the Act:
"2SER is a community-based radio station that is operated by Sydney Educational Broadcasting Limited (ACN 001 684 564), an incorporated entity. In addition, there is no provision for the radio station in either the University of Technology, Sydney Act 1989 or the Macquarie University Act 1989. It is our view, therefore, that 2SER is excluded from the definition of a "public authority" under section 3(a) of Schedule 4 of the Act."
Withnall also suggested that even in the event 2SER was a "public authority" the request would be entirely rejected on the same privacy and commercial considerations as outlined by Paterson.
Read the full letter from Melanie Withnall here.
The UTS decision maker has also refused the request on the grounds that it would breach the privacy of individuals at the station:
"It is reasonable to expect that there is an expectation on the part of individuals concerned, their personal information would be confidential and that their privacy would not be breached."
New Matilda spoke to several current and former volunteers whose details or emails would likely have been caught up by the request. None of the volunteers were consulted by UTS on whether they consented to the release of their information, and none said they would have objected to the release of information about them.
Paterson’s decision to restrict access to the documents is surprising.
"There is an overriding public interest against the provision of copies of the information… it is considered that any potential distribution of copies will have a negative impact on goodwill and business relationships with current and future investors and advertisers," he writes.
This is an egregious perversion of the GIPA process. Access should generally be unconditional for documents, unless there is some "overriding public interest" against their release. And then there is a limited range of conditions that can be imposed, which are outlined in s 73(2) of the GIPA Act:
"(2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information."
The act does not give a public authority power to limit access to only an individual, and only a very broad reading of s 73 would allow such a condition to be imposed. Indeed, this would be contrary to one of the fundamental tenets of the reformed Freedom of Information (FOI) regime of allowing requests to be accessed universally by any individual under disclosure logs.
If this decision were allowed to stand, it would signal a major failure of the FOI reforms to strengthen disclosure requirements across public agencies.
While it’s unlikely that the decision from Paterson will hold up in the Administrative Decisions Tribunal, the entire affair also exposes a significant failing with the NSW GIPA regime. Given the hard line taken on this decision any internal review would likely be fruitless. Review is possible by the Information Commissioner, but unlike their federal counterpart they do not have the power to make determinations, and can only make recommendations. The only real option for review then is to go to the Tribunal, which takes time and money.
What this really demonstrates though is a failure of UTS and 2SER to engage with the community in a transparent way. The change proposal at 2SER has been mired in secrecy, and UTS and 2SER quite clearly want it to stay that way.