news The Federal Government has declined to reveal almost any information about a second secret industry meeting held in February this year to address the issue of Internet piracy, using a variety of complex justifications to avoid releasing virtually any detail of the meeting under Freedom of Information laws.
The closed door meeting, held on 8 February, saw major Australian ISPs sit down with the representatives of the film, television and music industries and the Federal Attorney-General’s Department, with the aim of discussing a potential industry resolution to the issue of online copyright infringement. The meeting is the fourth such meeting to be held, after a series of other meetings were held late last year under similar circumstances.
The Attorney-General’s Department acknowledged in early February that another anti-piracy meeting had taken place. As we did with the first meeting in September, Delimiter subsequently filed a wide-ranging request for information about the meeting to be released under Freedom of Information laws, seeking details such as a list of attendees, notes taken by any government staff, a copy of documentation issued to attendees, email correspondence related to the calling and conduct of the meeting, and internal departmental correspondence regarding it.
Late last week, the Attorney-General’s Department responded to that Freedom of Information request, providing a series of five documents. However, using a variety of justifications, the department has redacted almost all of the information previously contained in the documents — including 14 pages of notes taken by a departmental staffer at the event and other four pages of notes taken by a senior staffer from Communications Minister Stephen Conroy’s department.
According to the documents (which are available to download in full here in compressed RAR format), the following organisations were invited to the February meeting: The Digital Entertainment Alliance of Australia (represented by the Australian Federation Against Copyright Theft), the Australian Content Industry Group (represented by Music Industry Piracy Investigations), the Communications Alliance, Telstra, iiNet and the Department of Broadband, Communications and the Digital Economy, represented by first assistant secretary Richard Windeyer.
The meeting was to be chaired by AGD secretary Roger Wilkins.
However, the Attorney-General’s Department stated in its response to Delimiter’s FoI request that it “does not hold” a list of the attendees who actually attended the meeting. Furthermore, the department censored the names of the individuals invited to attend the meeting. also It completely redacted a document consisting of the agenda of the meeting, which had been distributed to those invited to attend.
In a briefing issued to Attorney-General Nicola Roxon regarding the meeting, the department noted that it continued to prefer an industry-negotiated solution to the issue of Internet content piracy. However, the note added, former Attorney-General Robert McClelland had indicated that “the Government will consider other options if the industry is unable to reach an agreement”.
In addition, the note added, a public communications plan regarding the talks was “not required”. “There has been media interest in the progress of these discussions, but information discussed will not be released publicly,” it stated.
It had previously been believed that only two of the secret meetings — in February and September — had been held by the Attorney-General’s Department on the issue. However, the briefing note adds that other closed door meetings were held on 28 November last year, as well as on 19 December.
The rationale which the overseeing Freedom of Information officer at the Attorney-General’s Department has given for not releasing information about the meetings is complex and multi-faceted. Principally, in its statement of reasons given for not releasing information, the department has relied on several sections of the Freedom of Information Act which allow government departments to exempt certain documents from being released under FoI requests.
One of the main legal instruments used was section 47C of the FoI Act, which exempts material from being disclosed if it would disclose material which was involved in the deliberative or consultative processes of the government. AGD senior legal officer Jane Purcell wrote the following in her response to Delimiter’s FoI request about the use of 47C:
“The documents which I have decided to exempt consist of information about proposed industry solutions to the issue of online copyright infringement. At this stage of the process, discussions are still taking place; discussions which involve various stakeholders with competing interests. It is worth noting that these discussions have not been completed.”
“I have decided that the contents of the exempt documents comprise material recording the substance of consultation and deliberation that has taken place in the course of, and for the purposes of, the deliberative processes involved in the functions of this department. I have therefore decided that the documents are ‘conditionally exempt’ under subsection 47C of the Act.”
The FoI Act still requires that such documents be released, unless to do so would be contrary to the public interest. However, Purcell noted that “the disclosure of these documents, in the absence of any solution or agreement, would be contrary to the public interest” — because the discussions are “at a very delicate, sensitive and important stage”.
“Disclosure of the documents while the negotiations are still in process, would, in my view, prejudice, hamper and impede those negotiations to an unacceptable degree,” wrote Purcell. That would, in my view, be contrary to the interests of good government — which would, in turn, be contrary to the public interest.”
The department also used section 47F of the FoI Act to block the release of the names of individuals involved in the process — even to the extent that one un-named public servant personally requested to have their name removed from the documents, “for personal reasons”. Again, that material would still have to be released if it was in the public interest. However, Purcell again blocked that idea. “The release of the material here in question would, in my view, be contrary to the public interest as I believe that it is firmly in the public interest to uphold the rights of individuals to their own privacy,” Purcell wrote.
In addition, the department blocked the release of some information because its release might stop organisations involved in the discussions from contributing information to the Government in future.
The decision by the Attorney-General’s Department this month to block almost all FoI attempts to obtain information about its secret anti-piracy hearings is not the first time the department has blocked information about the meetings. The department has consistently attempted to withhold information about the meetings from reaching the public domain (for examples, see the following articles — here, and here). In addition, it is not known when the next meeting will be held.
Requests by at least one consumer group to attend the talks have been denied by the department, leading to Greens Communications Spokesperson, Senator Scott Ludlam, to slam the secret meetings as “offensive”. “What I find the most offensive about that, is that they locked the people out of the room that actually matter,” Ludlam said in January. “All of the writers, the creative artists, the performance people, they’re not in there. The rights holders are in there. The end users, the consumers … us, are locked out of the room as well.”
Ludlam said it was the “intermediaries” who were discussing the issue under the auspices of the Attorney-General’s Department, who had been told to come up with something that was “not too offensive” for their corporate interests. “They’ve locked out the producers and consumers. The model which will be introduced in Australia, when we get to hear about it, will probably be stuffed and offensive,” he added.
Delimiter is currently investigating options for appealing the redaction of some portions of the department’s Freedom of Information release this week.
Image credit: Attorney-General’s Dept, with slight editing. Opinion/analysis to follow separately.