16 November 2021
Ms Eliza Sorensen
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Sorensen,
Decision on 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
from the eSafety Commissioner (eSafety) under the
Freedom of Information Act 1982 (FOI Act).
I, Maria Vassiliadis, am an officer authorised under section 23(1) of the FOI Act to make decisions in
relation to requests under the Act.
Background
On 17 September 2021, you requested access to:
'Any emails and correspondence from the eSafety Commissioner or final documents that
contain the fol owing phrases:
"Apple CSAM", "CSAM detection", "Child abuse scanner", "On-device matching", "On-device
matching process", "NCMEC", "Thorn", "Regulation, here we come!"’
Following receipt of your request, eSafety advised you that pursuant to section 24 of the FOI Act, we
wanted to commence a consultation process with you to revise the time period of your request to
ensure a practical refusal reason under section 24AA of the FOI Act did not exist. As a result, the
specified time period for your request was confirmed to be 13 August 2021 to 24 September 2021.
On 8 October 2021, eSafety wrote to you advising that we were required to undertake third party
consultation. Specifically, eSafety advised that we would be writing to relevant individuals in relation
to the documents that contain their personal information and/or information concerning their business
or professional affairs.
To enable this third party consultation, the statutory time period for processing your request was
extended by an additional 30 days in accordance with subsection 15(6) of the FOI Act.
The time period for processing your request concludes on 17 November 2021.
We are providing you a response within the statutory timeframe.
Scope of your request
I understand the fol owing in relation to the scope of your request:
• your reference to ‘emails or correspondence from the eSafety Commissioner’ to be emails or
correspondence sent by the eSafety Commissioner, Julie Inman Grant, and
• your request does not include news articles, complaints data, draft versions of documents or
publicly available information.
I have identified 19 documents which fal within the scope of your request.
P: 1800 880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
Material taken into account
I have taken the following material into account in making my decision on access:
• the FOI Act, specifical y sections 11, 11A, 11B, 22, 24, 26, 27, 27A, 33, 45, 47C, 47F and
47G
• the guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (Guidelines)
• the content of the documents that fall within the scope of your request, and
• the views of third parties consulted by eSafety under sections 27 and 27A.
Decision and Reasons for Decision
I have decided that of the 19 documents identified as relevant to your request:
• 4 are released in ful
• 6 are released in part, and
• 9 are wholly exempt from release.
Pursuant to section 22 of the FOI Act, I have also redacted information that is irrelevant to the scope
of your request. Given the broad nature of your request, a number of documents are heavily redacted
because the majority of the content is not within the scope of your request. We have also redacted
information we assume you do not require, including the names of public servants.
The attached schedule of documents provides a description of each document and my decision on
access for each one. The reasons for my decisions are outlined below.
Although certain documents have been refused access on the basis of certain exemptions, I have
also referenced section 22 of the FOI Act in the schedule, to indicate some parts of their content is
either not relevant or out of scope of your application.
Exemption – Section 33 of the FOI Act – Documents affecting national security, defence or
international relations
Section 33(a) of the FOI Act provides that a document is exempt if its disclosure would, or could
reasonably be expected to, cause damage to:
i) the security of the Commonwealth
ii) the defence of the Commonwealth, or
iii) the international relations of the Commonwealth.
Some of the documents relevant to your request contain information that, if disclosed, could impede
the ability of the Australian Government to maintain good working relations with other governments
and international organisations. Such a disclosure could restrict the flow of confidential information
between these parties and the Australian Government. I have considered what is reasonable in al the
circumstances, having regard to the nature of the information, the circumstances in which it was
communicated and the nature and extent of the relationships.
In these circumstances, I consider relevant material in the below documents is wholly exempt from
release, under section 33(a)(iii):
Documents 3, 7, 9, 15, 17, 18, 19
P: 1800 880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
Exemption – Section 45 of the FOI Act – Documents containing material obtained in
confidence
Section 45(1) provides that a document is an exempt document if its disclosure under the FOI Act
would found an action, by a person (other than an agency or the Commonwealth), for breach of
confidence.
Section 45(1) applies to information that was communicated in circumstances giving rise to an
obligation of confidence, which was mutual y understood and accepted by both parties. I have
considered that release of certain information contained in some of the documents within the scope of
your application would threaten to breach this confidence, contrary to the objectives of the FOI Act.
In these circumstances, I consider relevant material in the below documents is exempt from release,
either wholly or in part, under section 45(1):
Documents 10, 12, 15
Public interest conditional exemption – Section 47C of the FOI Act – Deliberative Processes
Section 47C(1) provides that a document is conditional y exempt if its release would disclose matter
(deliberative matter) in the nature of, or relating to, opinion, advice or recommendation obtained,
prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the
purposes of, the deliberative processes involved in the functions of:
(a) an agency
(b) a Minister, or
(c) the Government of the Commonwealth.
Some of the documents relevant to your request contain information of deliberative matter, including
deliberative processes, relating to the regulatory functions, governance, administration and
stakeholder relations of eSafety.
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 considering whether to exempt the documents, I have considered and weighed factors for and
against disclosure, as outlined in the Guidelines and section 11B of the FOI Act. I have considered
that disclosure is general y considered to promote the objects of the FOI Act, can enhance the
scrutiny of government decision making and can inform debate on matters of public importance. I
have also considered that disclosure of the information may impede the ability for eSafety to evolve
thoughts, deliberate and evaluate policy options and perform powers and functions conferred on it by
the
Enhancing Online Safety Act 2015 (Cth). This may affect the ability of eSafety to operate as
effectively and efficiently as possible. The disclosure may also disclose information relating to
eSafety’s management of regulatory and compliance matters. Therefore, in combination with the
inability to operate effectively and efficiently, this interest outweighs the public interest in disclosure.
Having weighed these factors and determined that release at this time would be contrary to the public
interest, I consider relevant material in the below documents is exempt from release, either wholly or
in part, under section 47C:
Documents 5, 6, 7, 8, 13, 14, 16, 19
P: 1800 880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
Public interest conditional exemption – Section 47F of the FOI Act – Personal privacy
Section 47F of the FOI Act provides that a document is conditional y exempt if its disclosure 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 of third parties,
including names, contact details and employment details.
Unreasonable disclosure
The FOI Act states that, when deciding whether the disclosure of personal information would be
‘unreasonable’, I must have regard to four factors set out in section 47F(2) of the FOI Act:
1. The extent to which the information is well known
2. 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
3. The availability of the information from publicly available resources, and
4. Any other matters that I consider relevant.
I have therefore considered each of the above four factors.
Overall, the documents contain a variety of personal information. Some of the information is private
and sensitive. Some of the personal information is not well known and would only be known to a
limited group of people.
In these circumstances, and in the absence of the consent of the relevant individuals, which it would
not be practicable to obtain, 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 considering whether to exempt the documents, I have considered and weighed factors for and
against disclosure, as outlined in the Guidelines and section 11B of the FOI Act. I have considered
that disclosure is general y considered to promote the objects of the FOI Act, can enhance the
scrutiny of government decision making and can inform debate on matters of public importance.
However, I do not consider that release of personal information in these circumstances is material to
the scope of your request or would materially enhance your understanding of the documents you’ve
requested. Further, 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.
Having weighed these factors and determined that release would be contrary to the public interest, I
consider relevant material in the below documents is exempt from release, either wholly or in part,
under section 47F:
Documents 6, 8, 12, 13, 19
P: 1800 880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
Public interest conditional exemption – Section 47G of the FOI Act – Business
Section 47G(1) of the FOI Act provides that a document is conditionally exempt if its disclosure would
disclose information concerning business or professional affairs, or the business, commercial or
financial affairs of an organisation, in a case in which the disclosure:
a) would, or could reasonably be expected to, unreasonably affect a business in respect of its
lawful business, commercial or financial affairs, or
b) could reasonably be expected to prejudice the future supply of information to eSafety.
Some of the documents relevant to your request contain information about the business or
professional affairs of a person or organisation.
I find that disclosure of this information would, or could reasonably be expected to, adversely affect
those third parties in respect of their lawful business affairs. I further find that this would be
unreasonable. The businesses who would be affected work in the complex field of online safety and
deal with sensitive, technical, confidential and/or law enforcement information. I have consulted with
the relevant third parties and taken their consultation responses into account in coming to this view.
Furthermore, I consider that release of this information could reasonably be expected to prejudice the
future supply of information to the Australian Government, as it may dissuade businesses from
engaging with eSafety.
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 considering whether to exempt the documents, I have considered and weighed factors for and
against disclosure, as outlined in the Guidelines and section 11B of the FOI Act.
I have considered that disclosure is general y considered to promote the objects of the FOI Act, can
enhance the scrutiny of government decision making and can inform debate on matters of public
importance. However, in my view, the factors against disclosure of the document outweigh the factors
in favour of disclosure, as the release of business information that is not otherwise readily available to
the public could reasonably be expected to have an adverse effect on the businesses concerned and
prejudice eSafety’s ability to obtain similar information in the future. eSafety relies on good working
relationships with businesses and the sharing of business information. The inability to receive this
information would then impact the capacity of eSafety to effectively fulfil its legislative remit by
receiving appropriate information.
Having weighed these factors and determined that release at this time would be contrary to the public
interest, I consider relevant material in the below documents is exempt from release, either wholly or
in part, under section 47G:
Documents 6, 16
Final assessment of charges
Although your request has taken some time to process, I have decided not to impose a charge for
processing your request.
P: 1800 880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
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 xxx@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 wil 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 following 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. Relevant information in this regard is available at
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,
Maria Vassiliadis
eSafety Commissioner
Authorised decision maker pursuant to section 23(1) of the FOI Act
Attachments
1. Schedule of documents
P: 1800 880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
SCHEDULE OF DOCUMENTS
Number
Date
Size
Description
Decision on Exemptions of
Access
deletions on
the grounds of
relevance
1.
19 August 2021 4 pages Briefing note for meeting between Released in
Section 22
eSafety and AFP
full
2.
17 August 2021 19
Briefing for discussion regarding
Released in
Section 22
pages
the Future of Tech Commission
full
3.
23 August 2021 4 pages Meeting Brief
Exempt from Section 33
release
Section 22
4.
14 September
7 pages Briefing for Global Coalition for
Released in
Section 22
2021
Digital Safety
full
5.
8 September
4 pages Email with organisations regarding Exempt from Section 47C
2021
letter
release
Section 22
6.
8 September
4 pages Email regarding NetSmartz
Released in
Section 47G
2021
NCMEC series and Thorn for
part
Section 47C
Parents
Section 47F
7.
8 September
8 pages Email with organisations regarding Exempt from Section 33
2021
letter
release
Section 47C
8.
25 August
15
Internal email discussing digital
Released in
Section 47C
pages
platforms
part
Section 47F
Section 22
9.
7 September
5 pages Email with international
Exempt from Section 33
2021
organisation
release
Section 22
10.
N/A
3 pages Submission into the Age
Exempt from Section 45
Verification Roadmap
release
Consultation
11.
24 September
10
eSafety Commissioner’s INHOPE Released in
2021
pages
Speech
full
12.
3 September
3 pages Briefing on Twitch for Media
Released in
Section 22
2021
Interview
part
Section 45
Section 47F
13.
24 September
11
Agenda for meeting with Apple
Released in
Section 47C
2021
pages
part
Section 47F
Section 22
14.
24 August 2021 31
Product Update Briefing
Released in
Section 22
pages
part
Section 47C
15.
24 September
5 pages Email with international
Exempt from Section 45
2021
stakeholder regarding an event
release
Section 33
Section 22
16.
2 September
2 pages Email correspondence with a
Exempt from Section 47G
2021
digital platform
release
Section 47C
Section 22
17.
20 September
11
Email with organisations regarding Exempt from Section 33
2021
pages
letter
release
Section 47C
Section 22
18.
14 September
11
Email with organisations regarding Exempt from Section 33
2021
pages
letter
release
Section 47C
Section 22
19.
23 September
2 pages Email correspondence with Thorn Released in
Section 47F
2021
part
Section 47C
Section 33
P: 1800 880 176
E: xxxxxxxxx@xxxxxxx.xxx.xx
esafety.gov.au
