7 August 2020
Mr Robert Gorwa
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Gorwa,
Request for access to documents under the Freedom of Information Act 1982
The purpose of this letter is to give you a decision about access to documents that you
requested under the
Freedom of Information Act 1982 (FOI Act).
I, Nicole Chew, am an officer authorised under section 23(1) of the FOI Act to make
decisions in relation to FOI requests.
Original request
On 8 June 2020 you requested access to:
-All policy-making and administrative documents relating to the adoption and
implementation of the Criminal Code Amendment (Sharing of Abhorrent Violent
Material) Act 2019, or AVM act
-Al documentation relating to the engagement with civil society and industry
stakeholders in the lead up and fol ow up to the AVM legislation being passed,
including but not limited to documents pertaining to the (a) 'summit with digital
services and ISPs regarding AVM' and the (b) 'eSafety Commisioner's meetings with
industry stakeholders,' both mentioned in the Commisioner's Factsheet on the AVM
act published on the 24th of March.[1] These documents may include but not be
limited to email correspondence, meeting minutes and agendas, draft reports and
policy memos.
[1]: https://www.esafety.gov.au/sites/default/files/2020-03/eSafety-AVM-
factsheet.pdf
Part transfer under subsection 16(1) of the FOI Act
On 16 June 2020 we notified you that parts of your request would be transferred to two
other agencies under subsection 16(1) of the FOI Act.
(a) Attorney-General’s Department
In relation to the part of your request:
P: 313992
800873
880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
-All policy-making and administrative documents relating to the adoption and
implementation of the Criminal Code Amendment (Sharing of Abhorrent Violent
Material) Act 2019, or AVM act
the subject matter of this part of the request is more closely connected with the functions
of the Attorney-General’s Department, as this is the Department which developed
the AVM Act and which has policy responsibility for it.
Therefore, on 15 June 2020 the above part of the request was transferred to the Attorney-
General’s Department, which is now responsible for processing that part of the request.
(b) Transfer to the Department of Infrastructure, Transport, Regional Development
and Communications (DITRDC)
In relation to the part of your request:
Al documentation relating to the engagement with civil society and industry
stakeholders in the lead up and fol ow up to the AVM legislation being passed,
including but not limited to documents pertaining to the (a) 'summit with digital
services and ISPs regarding AVM'…
mentioned in the Commisioner's (sic) Factsheet on the AVM act published on the 24th
of March.[1] These documents may include but not be limited to email
correspondence, meeting minutes and agendas, draft reports and policy memos…
the subject matter of this part of the request referring to ‘(a) summit with digital services
and ISPs regarding AVM’ is more closely connected with the functions of DITRDC, which
hosted the summit.
Therefore, on 12 June 2020 the above part of the request was transferred to DITRDC, which
is now responsible for processing that part of the request.
Revised scope of the part of the request remaining with eSafety
On 16 June 2020 I spoke with you by telephone about narrowing the part of the request
remaining with eSafety to ensure it did not involve a substantial and unreasonable diversion
of resources that may invoke a practical refusal reason under sections 24, 24AA and 24AB of
the FOI Act.
Fol owing this informal consultation, we agreed to narrow the part of the request remaining
with eSafety as follows:
Al documentation relating to the eSafety Commissioner’s engagement with civil
society and industry stakeholders in relation to the Abhorrent Violent Material
legislation in the period from 15 March 2019 to 31 May 2019, including but not
limited to documents pertaining to the eSafety Commissioner’s meetings with
P: 313992
800873
880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
industry stakeholders mentioned in the Commissioner’s Factsheet on the AVM act
published on the 24th of March.[1]
[1]: https://www.esafety.gov.au/sites/default/files/2020-03/eSafety-AVM-
factsheet.pdf
We also agreed to exclude:
• all draft documents
• all internal correspondence within the eSafety Commissioner’s Office (for example,
back and forth internal emails between eSafety staff) and
• documents already published by the eSafety Commissioner on the FOI Disclosure
Log.
You confirmed the revised scope of the request via email on 23 June 2020.
Outcome of search for documents
I have identified five documents which fal within the revised scope of your request.
Several documents contain personal information about identified individuals. eSafety
therefore undertook third party consultation in accordance with section 27A of the FOI Act
in order to provide the affected third parties with opportunities to make submissions about
the application of the relevant exemption. Accordingly, the statutory time period for
processing your request was extended to 7 August 2020.
The attached schedule of documents provides a description of each document that fal s
within the scope of your request and the access decision for each of those documents. I
have decided to grant partial access to all five documents. More information, including the
reasons for my decision, is set out below.
Decision and Reasons for Decision
I have decided to grant partial access to all five of the documents that fal within the scope
of your request.
I have also decided that all five documents are partly exempt under section 47F of the FOI
Act, which provides that a document is conditional y exempt if its disclosure under the FOI
Act would involve the unreasonable disclosure of personal information of any person. The
exempt information has been redacted.
Pursuant to section 22 of the FOI Act, I have decided to redact some information that is
irrelevant to the scope of your request. This includes the names of public servants which I
have assumed you do not require.
P: 313992
800873
880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
The attached schedule of documents provides a description of each document and my
decision in relation to it. The reasons for my decision to claim exemption are set out below.
Material taken into account
I have taken the following material into account in making my decision on access:
• the FOI Act, specifically sections 11, 11A, 11B, 22, 26, 27A, 47F and Part IV Divisions 2
and 3;
• the guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (Guidelines);
• the content of the documents that fal within the scope of your request; and
• the views of third parties consulted by eSafety under section 27A.
Public interest conditional exemption – Section 47F of the FOI Act – Personal privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure
under the FOI Act would involve the unreasonable disclosure of personal information of any
person.
Personal information
‘Personal information’ means information or an opinion about an identified individual, or an
individual who is reasonably identifiable, whether the information or opinion is true or not,
and whether the information or opinion is recorded in a material form or not (see section 4
of the FOI Act and section 6 of the
Privacy Act 1988). Some of the documents relevant to
your request contain the personal information (including names, contact and employment
details) of third parties.
Disclosure unreasonable
The FOI Act states that, when deciding whether the disclosure of the personal information
would be ‘unreasonable’, I must have regard to four factors set out in subsection 47F(2) of
the FOI Act. I have therefore considered each of these factors below:
• the extent to which the information is wel known;
• whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document;
• the availability of the information from publicly available resources; and
• any other matters that I consider relevant.
The information relating to the third parties is not wel known and would only be known to
a limited group of people with a business need to know. As this information is only known to
a limited group of people, some of the individuals concerned are not general y known to be
associated with the implementation of the AVM legislation.
P: 313992
800873
880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
I am satisfied from my own experience and the consultation responses received that the
individuals involved are at risk of unwanted contact attempts which can cause distress and
jeopardise their personal safety. In these circumstances, and in the absence of the consent
of the relevant individuals, I consider that disclosure of their personal information would be
unreasonable.
Public interest
Under section 11A of the FOI Act, access to a document covered by a conditional exemption
must be given unless it would be contrary to the public interest. In weighing the public
interest I have taken into account the relevant factors favouring disclosure in subsection
11B(3), and have not taken into account any of the irrelevant factors in subsection 11B(4) of
the FOI Act.
While disclosure of information is generally considered to promote the objects of the FOI
Act, including informing the community of Government’s operations and enhancing the
scrutiny of government decision making, I consider that release of personal information in
these circumstances would neither inform debate about the AVM legislation, nor promote
oversight of eSafety’s processes and procedures with respect to its implementation.
Conversely, disclosure could reasonably be expected to prejudice the protection of an
individual’s right to privacy, and to harm the interests of an individual or group of
individuals.
Accordingly, I am satisfied that parts of the documents are exempt under section 47F and
that disclosure would be contrary to the public interest.
Description of information released under this disclosure log (and whether released in full
or part)
Five documents were released in part and exempted in part.
Additional documents which may be of interest
Your revised request excludes documents already published on eSafety’s FOI Disclosure Log.
However, we encourage you to review the documents in Log 7 at
https://www.esafety.gov.au/about-us/corporate-documents/freedom-of-
information/disclosure-log.
These documents were released in response to another FOI request seeking materials
created between 1 January and 11 July 2019 relating to eSafety’s implementation of the
AVM legislation
.
While the documents released in response to your request refer to meetings between
eSafety and industry to discuss the AVM legislation, the documents released in response to
P: 313992
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880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
the request in Log 7 include correspondence that took place fol owing these meetings.
Final assessment of charges
I have decided that you are not liable to pay a charge in respect of your request for the
attached document.
Your rights of review
If you are dissatisfied with my decision, you may apply for internal review or Information
Commissioner review of the decision. We encourage you to seek internal review as a first
step as it may provide a more rapid resolution of your concerns.
Under section 54 of the FOI Act, you may apply in writing to
xxxxxxxxx@xxxxxxx.xxx.xx for
an internal review of my decision. The internal review application must be made within 30
days of the date of this letter. Where possible, please attach reasons why you believe
review of the decision is necessary. The internal review will be carried out within 30 days.
Under section 54L of the FOI Act, you may apply to the Australian Information
Commissioner to review my decision. An application for review by the Information
Commissioner must be made in writing within 60 days of the date of this letter, and be
lodged in one of the fol owing ways:
online:
https://forms.business.gov.au/aba/oaic/foi-review-/
email:
xxxxxxxxx@xxxx.xxx.xx
post:
GPO Box 2999, Canberra ACT 2601
in person:
Level 3, 175 Pitt Street, Sydney NSW
More information about Information Commissioner review is available on the Office of the
Australian Information Commissioner website. Go to
www.oaic.gov.au/freedom-of-
information/foi-reviews.
If you have any questions in this regard, please contact me on 1800 880 176 or at
xxxxxxxxx@xxxxxxx.xxx.xx.
Yours sincerely,
Nicole Chew
Office of the eSafety Commissioner
Authorised decision maker pursuant to section 23(1) of the FOI Act
Attachments
1. Schedule of documents
P: 313992
800873
880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
SCHEDULE OF DOCUMENTS
Doc. Description of document
Date
Decision on
Section/s relied upon
No
access
1. Emails between Facebook and
8-Apr-19
Partial Release
Sections 22, 47F
eSafety: Meeting this week
2. Emails between Twitter and
8-Apr-19
Partial Release
Sections 22, 47F
eSafety: Meeting on Wednesday
3. Calendar entry: Meeting –
11-Apr-19
Partial Release
Sections 22, 47F
Facebook / eSafety
4. Calendar entry: Meeting – Twitter 11-Apr-19
Partial Release
Sections 22, 47F
/ eSafety
5. Calendar entry: Meeting – Google
11-Apr-19
Partial Release
Sections 22, 47F
/ eSafety
P: 313992
800873
880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
